Abstract
Australia’s indigenous people continue to be disproportionately incarcerated in Australian prisons. Since 2000, the imprisonment rate of indigenous people has increased by 59% for indigenous women and 35% for indigenous men (Steering Committee for the Review of Government Service Provision, 2011: 5). Whilst indigenous people constitute around 2.5% of Australia’s population, they now make up approximately 28% of the prison population. Clearly, the sentencing process remains a key site of indigenous oppression in Australia and thus it is no surprise that there continues to be significant scholarly interest in it (e.g. Cunneen, 2011; Douglas and Finnane, 2012; Weatherburn, 2014). In Indigenous People, Crime and Punishment, Anthony explores what she calls the ‘recognition dilemma’ of ‘how courts recognize Indigenous alterity in the Anglo-Australian legal order whilst upholding its whiteness’ (p. 4). She argues that, through sentencing, judges make a statement about what is ‘acceptable’ indigeneity (p. 7), explaining that judicial representation of indigenous people and custom is a ‘metaphor for the colonial state’s psyche and relationship with the Other’ (p. 54).
In this book, Anthony tracks changing judicial approaches over time and concludes that whilst earlier Australian judges represented indigenous offenders with sympathy, which tended to lead to more lenient sentences, more recently judges have perceived indigenous offenders as an object of risk to victims. Whilst Anthony is well aware that a similar trajectory has been identified in the approach to punishment in Western countries generally (Garland, 2001: 71), her focus is specifically on representations of indigenous difference. She argues that whilst indigenous offenders deserving of sympathy are represented as coming from ‘disadvantaged’ communities, later when offenders are seen as risky they are alleged to come from ‘dysfunctional’ communities. In the context of sentencing indigenous people, Anthony argues that whether judges approach indigenous offenders as objects of sympathy or as objects of risk, they draw on stock stories about indigenous cultural practices and laws to misrecognize or fail to recognize indigeneity (pp. 7–9, 13–15). Thus sentencers operate ‘as agents of “white” fantasy-fulfilment’ (p. 3) maintaining and legitimizing dominant institutional discourses through the exclusion, obscuring or inferiorizing of ‘the Other’ (p. 3). In Chapter 2, Anthony sets up the important role of criminalization, and thus sentencing, in the oppression of indigenous people. She explains that criminalization began as a means of controlling the resistance of indigenous people to the colonial project. Whilst English law was ‘received’ in Australia in the 1800s, the extent of jurisdiction of the received law was challenged, albeit mostly unsuccessfully, in several early cases. For example in 1836 in R v. Murrell (1836) Legge 72 (Kercher, 1998), the New South Wales Supreme Court dismissed the argument that Aboriginal people had recognizable laws, deciding it had jurisdiction in inter se matters (i.e. when Aboriginal person killed another Aboriginal person). As Anthony observes the decision in this case, and others like it, effectively meant that Anglo-Australian law had exclusive authority over indigenous people (p. 38).
Whilst accepting the appalling statistics around indigenous incarceration in Australia, in Chapter 3, Anthony considers the limits of any purely statistical analysis of the sentencing process in understanding how sentencing approaches discriminate against indigenous people. She explains how mitigating and aggravating factors act as ‘filters’ that privilege White norms and ‘undermine the capacities of Indigenous societies’ (p. 78). Thus she argues that considering how a particular sentence is arrived at simply by assessing the role of mitigating and aggravating factors will fail to recognize the discrimination embedded in the criminal justice process. In this chapter, Anthony identifies a binary debate between criminologists in Australia between those who recognize the discrimination that is embedded in the criminal justice process and those who attribute the over-representation to higher levels of indigenous criminality (p. 58). This debate is probably not so diametrically opposed as she suggests, as even scholars like Bond and Jeffries (2012) and Weatherburn (2014), who Anthony associates with the statistics-driven approach, have recognized broader political, social and equity considerations involved in judicial sentencing approaches. Nevertheless, Anthony’s point is clear, and we need to go beyond statistics and the narratives presented in sentencing judgements provide important insights about how these broader factors impact on judicial discretion and ultimately on the incarceration of indigenous people.
Chapters 4 to 7 are organized by themes of cultural practice, indigenous punishment, socio-economic disadvantage, dispossession and political protest. These chapters examine in depth the remarks of judges in a range of sentencing cases. Chapter 4 focuses on cases where indigenous people have committed a crime due to a belief that the crime was committed in accordance with indigenous culture – or at least this is the narrative presented to the court. Through an examination of these cases, Anthony shows how from the 1970s to the 1990s courts appeared to rely on indigenous culture to reduce penalty after which, she argues, a moral panic began to emerge and courts began to ‘conflate Indigenous culture with violence’ and they began to see indigenous culture as repugnant (p. 83). Thereafter, she suggests attention shifted to the victim (p. 93), leading in turn to higher penalties. Chapter 5 explores those cases, primarily from Australia’s Northern Territory, where submissions from indigenous communities have urged courts to consider disciplinary measures applied by indigenous people as an alternative punishment or in mitigation. Such disciplinary measures include shaming, banishment and supervision by elders but also sometimes violent spearing. Whilst earlier courts attempted to integrate these disciplinary measures into sentences, albeit whilst retaining control over them (p. 124), Anthony argues that more recent cases have disregarded the role of indigenous disciplinary measures – again resulting in higher penalties (p. 137). Chapter 6 shows a similar trajectory, it explores cases, primarily from New South Wales, where judges have recognized a ‘classic stock story’ of disadvantage, dispossession, alcohol-fuelled offending and correspondingly recognized reduced moral culpability for offending in earlier times (pp. 22, 140). However, similar to preceding chapters, Anthony argues that more recently sentencing courts have aligned disadvantage with dysfunction resulting in harsher prison sentences, again focused on protecting victims (p. 163). In the final substantive chapter, Chapter 7, Anthony examines a number cases where indigenous people have been sentenced for protesting against racism. Again, the story is similar, whilst early sentencing cases considered crimes committed as a response to racial tension may receive some leniency (p. 173), later cases have identified protesters as out of control requiring denunciation and more harsh penalties to deter such behaviour (p. 190).
Anthony’s primary interest is in how indigenous people are (mis)recognized or unrecognized in the sentencing process (p. 21) and she shows clearly how the qualitative remarks of judges often contribute to the subjugation of indigenous people and how punishment operates to reinforce the dominant order (p. 167). However, this book is not necessarily a call for judges to do things differently, as Anthony explains the ‘sentencer’s recognition of Indigeneity is a problematic premise for legal plurality in the Australian criminal justice system’, as in order to be the dominant legal system the Anglo-Australian law must subordinate other legal systems including indigenous laws (p. 192). Instead, Anthony calls for a reimagining of justice processes. Following Cunneen (2011: 314–315), Anthony concludes that a discussion about sovereignty, power and authority needs to take place so that there can be a ‘common understanding of how Indigenous laws and practices [may] offset the universalising endeavour of non-Indigenous institutions’ (p. 209). Such a conversation, she argues, may help to provide the foundation for a legal pluralist order and transform the justice process in Australia so that indigenous community justice mechanisms can take a central role. Anthony’s deep and detailed analysis of sentencing cases involving indigenous people over a long period of Australian history enables us to see patterns emerge. Her book makes an important contribution to understanding how the representations of indigenous difference by judges in sentencing cases may help to maintain the dominant legal order and to continue the subjugation of indigenous people.