Justice for Ms Dhu

Introduction

Ms Dhu was 22 years old when she died in police custody in Port Hedland, Western Australia, on 4 August 2014. Like many other Aboriginal women who have died in custody, her death occurred at the intersection of poverty, racism and violence. Already ill with pneumonia and septicaemia caused by a broken rib inflicted by her partner 2 months earlier, she was arrested for unpaid fines and kept in custody to ‘work off’ the fine. On her first day in custody, she was taken to hospital but sent back to her cell after having her pain attributed to ‘behavioural issues’ or ‘drug withdrawals’ by two different doctors. When she was sobbing, vomiting and begging for help in her cell, the police officers on duty at the lockup ignored her and belittled her as an addict. The second time she was taken to hospital, already in the advanced stages of septicaemia, the doctors and nurses failed to even take her temperature (WA State Coroner, Inquest 11020-14, 2016: 107, 110, 221, 320). ¹ When her condition continued to deteriorate in lockup, the officers, instead of calling an ambulance, handcuffed her unconscious body and dragged her by her arms from her cell into the back of a police van ‘like a dead kangaroo’ (The Guardian, 2015a). By the time the police arrived at the hospital and proceeded to nonchalantly unload her into a wheelchair, she was in cardiac arrest. Despite extensive efforts to resuscitate her, she was pronounced dead shortly thereafter.

The coronial report released in December 2016, nearly 2 years after her death, found that the police officers had acted inhumanely and unprofessionally (2016: 493, 546, 596, 731, 880), without regard for Ms Dhu’s suffering, or indeed for the fact that she was a human being (465, 493). This was deduced from the officers’ persistent disbelief, indifference, belittling and refusal to listen to or actually see Ms Dhu as she communicated her pain through moans and pleas for help (2016: 67, 108, 118, 127, 468, 635, 640, 643, 652, 659, 678). Despite condemning the police for their inhumane and unprofessional behaviour (2016: 264, 546, 596, 731, 880) that ‘reflected badly upon the Western Australian Police Service’ (496, 546, 597), and finding that Ms Dhu’s medical treatment was considered ‘below the standards that should ordinarily be expected of a public hospital’ (265, 299, 304, 411, 434, 437), the coroner remained unable to account for why the people responsible for the care of Ms Dhu failed so miserably in exercising their duty of care.

The coroner did not recommend any criminal prosecutions. None of the police officers had their employment terminated. The only measures taken were police internal processes back in 2014 under which four officers were sanctioned for unprofessional conduct, breaching regulations and failing in their duties, and seven other officers were found to have breached policy and procedures ( SBS News, 2017c). Two of the officers involved promoted ( New Matilda, 2016). The Western Australian Premier receiving the coroner’s report indicated that he would not implement her recommendation to legislate against detention for fine defaulters ( ABC News, 2016a), nor institute a mandatory notification service for when indigenous people are taken into custody, as in NSW and the ACT ( Sovereign Union, 2016a); as of writing, the 2017 incoming Labor government has pledged to set up the notification service (SBS News, 2017a), but this has not yet occurred. In this sense, the inquest’s findings and the tepid political response have failed to achieve the justice sought by Ms Dhu’s family, whose struggle to hold the state accountable for their relative’s death continues: they have now lodged a claim of misconduct leading to death in the Supreme Court of Western Australia (ABC News, 2017a).

Ms Dhu died 6 years after Aboriginal Elder Mr Ward was ‘cooked to death’ in a van while being transported between prisons in Western Australia, and at a time when the mistreatment of Aboriginal people at the hands of police, prison guards and the criminal justice system has emerged as a key topic in public debate, largely because of media reporting and the circulation of footage such as the CCTV footage released in July 2016 showing the torture of Aboriginal boy Dylan Voller in Don Dale Detention Centre in the Northern Territory, which provoked international outrage (New York Times, 2016; Washington Post, 2016). Ms Dhu’s death also occurred against the background of an increased international interest in, and condemnation of, Australia’s poor treatment of other vulnerable detained populations, including children and refugees in offshore detention (ABC News, 2016b). Media reporting on Ms Dhu’s death sparked public protests at her treatment (ABC News, 2015; SBS News, 2015) and an online campaign for the coroner to publicly release the CCTV footage taken during her final days in custody, which was shown in the courtroom as evidence during the inquest (Wahlquist, 2015). Initially declining to release the footage in deference to indigenous protocol, the coroner eventually bowed to Ms Dhu’s family and the #releasethecctv campaign and made public 3 minutes of footage alongside her report, which circulated online and was picked up by international media ( Al Jazeera, 2016; BBC News, 2016; Policy Mic, 2016). Shortly after its release, Felix Riebl of Cat Empire released a protest song naming Ms Dhu’s criminalization and resulting death as itself a crime, accompanied by a video situating her death within the history of Australian colonial governance and police violence towards Aboriginal people (ABC News, 2017b). Ms Dhu’s photograph and excerpts of the footage have circulated online alongside the phrases #BlackLivesMatter, #IdleNoMore and #SayHerName, in a ‘call and response’ between local allies and international activists that connect the Australian struggle for justice for indigenous people to North American and global movements against militarized policing, state violence and neglect (Bonilla and Rosa, 2015; Carney, 2016; Richardson, 2016).

Ms Dhu’s death is the 240th Indigenous death in custody since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) in 1992. The RCIADIC found that Aboriginal peoples were more likely to die in custody because they were significantly over-represented in custody (RCIADIC, 1991) and made 339 recommendations aimed at reducing Indigenous over-incarceration. Many of these recommendations have not been implemented, and indeed, indigenous imprisonment rates have doubled in the wake of its conclusion (Dodson, 2016: 24). As of 2017, indigenous people made up 28% of the Australian adult penal population, but only 2% of Australia’s general population (Australian Bureau of Statistics, 2016). One in five people who die in custody are indigenous ( The Guardian, 2016c). If some of the most vital recommendations made by the RCIADIC – to use imprisonment as a mode of last resort and to avoid incarceration for fine defaulters who cannot afford to pay – had been implemented, they would likely have saved Ms Dhu’s life.

This article examines Ms Dhu’s death and both formal and informal attempts to hold state agencies accountable for their violence against indigenous peoples. As in other settler states such as Canada, the legal and political authority of Australian sovereignty is predicated on the dispossession, over-incarceration and biopolitical management of its Indigenous peoples. In part 1, we adopt an intersectional analysis to explain how Ms Dhu’s life and death were marked by violence linked to both her race and her gender, exemplifying the workings of the Australian ‘colonial patriarchy’ at the intersection of its health and criminal justice apparatus (Baldry and Cunneen, 2014). In part 2, we examine how the coronial inquiry reported Ms Dhu’s encounters with the criminal justice system and medical institutions in the last days of her life. The coronial report demonstrates the severe dereliction of duty on the part of individual police and medical professionals but presents these as procedural and operational failures, an aberrative instance of the state failing to meet an administrative burden. In acknowledging her death as preventable and as the product of individual failures to act with regard for human life, or in line with ordinary procedure, the coronial report naturalizes her death and normalizes the state violence behind it. Precluded from speaking in the register of either criminal responsibility or social reality, the institution of the coroner is unable to consider the broader history of institutional racism or the colonial violence that marks indigenous relationships with the police. It merely incorporates ‘White virtue’ through a retrospective insistence on the neutrality of state institutions and the dignity of Ms Dhu’s life (Moreton-Robinson, 2004).

In part 3, we turn from the state response to Ms Dhu’s death to consider an alternative, subversive and aesthetic attempt at justice. Frustrated with the delays of the coronial inquiry, which dragged on from November 2015 to March 2016, the ‘allies of Ms Dhu’, an anonymous activist group, began projecting images of Ms Dhu and her grieving family on buildings in Perth in February 2016 ‘to raise awareness around her death and inquest’ ( ABC News, 2016a). We argue that these acts of mourning and commemoration, invested in remembering and reimagining Ms Dhu in public space, are part of a counter-discourse that works by reasserting Ms Dhu’s life as a grievable life. As practices of aesthetic place-making, they connect her life and death to the broader history of colonialism and indigenous struggles for justice elided from the coronial report and draw on transnational networks of solidarity in order to reckon with Australia’s ongoing sovereign violence towards its indigenous peoples. In so doing, they enact, however, provisionally and fleetingly, the promise of justice through decolonization.

Colonialism, Gender and Violence Against Indigenous Women

Ms Dhu’s story must be understood within its broader context of colonialism, incarceration and gender violence. In Australia, Canada and elsewhere, settler colonialism is an ongoing project that began with the British designation of the continent as terra nullius that facilitated the dispossession of and violence against indigenous peoples and continued in the form of protection-era interventions in Aboriginal communities, the stolen generations, the Northern Territory Intervention and the over-incarceration of indigenous peoples. Today the operations of patriarchal White sovereignty are visible in the forced closure of Indigenous communities, the theft of land, the eradication of culture, authorized violence and the daily insult of racist and sexist violence and forced poverty (Behrendt, 2000; Gooda, 2016; Maddison and Partridge, 2014; Watson, 2009). These colonial practices aim to exclude Indigenous peoples from public space and public life through controlling and criminalizing their bodies, naturalizing Indigenous disappearance as part of the colonizing effort to perfect a fundamentally imperfect sovereignty (Fitzpatrick, 2002: 243; Ford, 2010: 210; Wolfe, 2006: 388).

Ms Dhu’s early encounters with police reflect the interpersonal and structural racism in policing public space, where arrest is contingent on police characterization of offending behaviour (Behrendt et al., 2009: 120). The unpaid fines that led to her death related to occasions in which she had been arrested for minor public order offences. According to the coroner’s account, Ms Dhu disobeyed an order to move away which, in turn, led to the more serious charge of assaulting police, as she resisted her arrest by kicking a police officer while being handcuffed (WA State Coroner, Inquest 11020-14, 2016: 784). This infamous practice of police exercising their arrest powers for trivial reasons is triggered by the presence of ‘suspicious’ Indigenous bodies in public space (Aboriginal and Torres Strait Islander Commission, 1997; Cunneen, 2001; Langton, 1988). Excessive policing of these bodies becomes a way of claiming the settler state’s exclusive right to that space (Anthony, 2013: 50). This policing practice, which affects young people in particular, has become normalized (Blagg, 2008: 92–97), especially in Western Australia, where Indigenous youth constitute only 6% of the youth population but 71% of detained youth ( Department of Corrective Services, 2016).

Indigenous women constituted 34.2% of incarcerated women in June 2012, while only representing 2% of the general female population (Baldry and Cunneen, 2014: 279). Western Australia, where Ms Dhu died, has the highest Aboriginal imprisonment rates in Australia (Australian Bureau of Statistics, 2016). Indigenous children there are imprisoned at a rate of 78 for every 10,000, a higher rate than Black people in the United States, who are imprisoned as children at a rate of 52 for every 10,000. Ms Dhu’s incarceration for failing to pay fines is also ordinary practice in Western Australia; between 2008 and 2015, there was a staggering 576% increase in the incarceration of Indigenous women for fine-defaulting. Indeed, it is even difficult to know how many fine defaulters are locked up in Western Australia, since data are not collected from watch houses (where fine defaulters serve short terms) ( The Australian, 2015). These detainees are ‘ghosts’ in official records, not even represented in statistics.

The circumstances of Ms Dhu’s death remind us that Indigenous women continue to suffer in different ways from Indigenous men, as they are subjected to gendered modes of control (Baldry and Cunneen, 2014: 284; Haskins, 2001) and terrorizing violence by Black men, White men and White women through colonial practices and silencing (Atkinson, 1990; Moreton-Robinson, 2000). Intersectional feminists and critical indigenous scholars have emphasized that Indigenous women experience violence at the intersection of oppressive regimes of poverty, race and gender (Crenshaw, 1991: 1242; Moreton-Robinson, 2000, 2015). In Australia, the victimization rates of indigenous women in prison indicate that their criminalization and incarceration is deeply entrenched with high rates of family violence (Atkinson, 2001; Bartels, 2012; Baldry, 2009) fostered by colonial dispossession, government policy and neglect (Atkinson and Woods, 2008; Blagg, 2008; Behrendt and Watson, 2008). Indigenous women are now so disproportionately affected by family violence that they are 35 times more likely to be hospitalized due to family violence related assaults than other Australian women, and 5 times more likely to be victims of homicide than other Australian women; 55% of the homicides of indigenous women are related to family violence (Our Watch, 2014). Behrendt argues that violence has now become a ‘normal’ part of life for many Aboriginal women today’ (2000: 361). Equally troubling, as Indigenous women activists have noted ( The Guardian, 2016a), mainstream media often constructs family violence as ‘an Indigenous issue’ by linking it to ‘culture’ rather than colonialism (Atkinson and Woods, 2008; Atkinson, 1990; Behrendt and Watson, 2008), locating responsibility with individuals and deflecting attention from the role of forms of ongoing colonial dispossession, protection, genocide and assimilation.

The way in which responsibility for violence against Indigenous women is localized and removed from colonial governance and rule has influenced the specific way in which settler law has failed Indigenous women. Australian court judgments have long reflected the idea that Indigenous women are not deserving of the same standard of protection and care as other women, and that violence against Indigenous women’s bodies is normal, reasoning as late as the 1990s that rape is not considered as serious between Indigenous peoples as it is by White people ( R v Burt Lane, Ronald Hunt and Reggie Smith [1980]), that Indigenous women’s chastity ‘is not as importantly regarded as in white communities’ ( R v Mingkilli, Martin and Mintuma [1991]) or that ‘a rough up’ is ‘part of aboriginal love making’ (Atkinson, 2001: 14). These archaic ideas carry harmful implications for Indigenous women, as illustrated by the extraordinary violence done to Aboriginal woman Lynette Daley when she was raped and murdered in 2011, and the failure to prosecute her assailants for more than 5 years – even though the coroner recommended prosecution long before ( ABC News, 2016c). Unsurprisingly, Indigenous women in Australia harbour distrust against the criminal justice system, as they are not taken seriously nor given adequate protection when they encounter it (Behrendt, 2000: 362–363).

Beyond the criminal justice system’s role in terrorizing Indigenous lives in the public sphere, it must also be acknowledged that the same system is yielded as a weapon invested in destroying indigenous bodies in the settler state. Once taken into custody, Ms Dhu was stripped of power and made dependent on the police officers and medical professionals to give her adequate care, and then denied that care. Her carceral experience is eerily similar to that of Kinew James, an indigenous woman in Canada whose cries for help were ignored on multiple occasions until she died alone in prison in 2013 (Razack, 2014). Razack has argued that the epidemic of missing and murdered indigenous women in Canada reflects their ‘gendered disposability’ (2016a). She observes that police apprehend violence against women of colour ‘as an outcome of a particular lifestyle, a way of life born of poverty’ (2016b). Their disappearance is normalized because of race and its forced association to poor education, poverty, ill-health and sexualized violence – markers which make life untenable and destructible by the necropolitical state. For colonized peoples, then, and particularly women, policing Black bodies remains a paradigm of settler rule, literally policing the borders of possession and dispossession (Dhillon, 2015: 3). These women’s bodies have been made expendable because their existence, and womanhood itself, is a contestation of and danger to White settler sovereignty (Simpson, 2016: 16).

The police brutality Indigenous women and ‘othered’ bodies endure, and the indifference that attends this suffering, must be understood as a biopolitical manifestation of state power that thrives on the elimination of ‘destructible’ bodies. At the heart of the biopolitics of contemporary global sovereignty lies the decision on the value – or nonvalue – of ‘life’. The life of bodies targeted as dangerous, violent or criminal is politically unqualified, unworthy of being lived and their death unworthy of being mourned. This kind of analysis draws on the work of Foucault to argue that the state, racism and biopower are connected through the governance and destruction of racialized bodies (1997). Mbembe takes up Foucault’s point that the politics of race are always already connected to the politics of death, and explains that by operating on the split between the living and the dead, biopolitics defines itself in relation to a biological field (2003: 17). Focusing on the state’s production of death, he argues, reveals the underside of biopolitics and biopower, the dominant form of modern political power. He uses the word ‘necropolitics’ to describe how this state instrumentalizes power to facilitate the ‘maximum destruction of persons…and unique forms of social existence in which populations are subjected to conditions of life conferring upon them the status of the living dead’ (Mbembe, 2003: 17).

The prison has been analysed as one such necropolitical space, producing death for those destined to abandonment, deprivation and neglect (Lamble, 2013: 242). Importantly, however, like the 11 women whose deaths were investigated in the RCIADIC, Ms Dhu died in a holding cell, not a prison. Not yet subject to the disciplinary procedures of the prison, nor its ostensible promise of rehabilitation and transformation (Foucault, 1977: 101), or even the better health care of its regular monitoring, Ms Dhu found herself instead living her last moments in a periphrastic space, a deadly limbo. When Ms Dhu was brought to the hospital for the last time, the officers handcuffed her, lifted her under her arms and dragged from her cell into the back of a police van. Watching this footage during the inquest, an observer made the remark that Ms Dhu was being carried ‘like a dead kangaroo’ (ABC News, 2015), an echo of the words spoken about John Pat who, more than 30 years ago, was thrown into the back of a police van ‘like a dead kangaroo’ and whose death sparked the RCIADIC (Georgatos, 2013). This description of the police’s treatment of Ms Dhu’s dying body vividly illustrates the dehumanization rendered by incarceration (Pugliese, 2013: 46) and how that dehumanization authorizes violence against a body exposed to death (Wadiwel, 2004) – a paradigm of necropower. It marks Ms Dhu’s state of total eviction from the category of human (Razack, 2014), and the inscription of racial power and colonial violence on her body (2014: 14).

The Coronial Report: Avoiding Institutional Racism

As deaths in custody automatically trigger coronial investigations, the coronial inquiry and subsequent reports become a primary way in which official state narratives of responsibility for Indigenous deaths in custody are performed and articulated. The coroner in Ms Dhu’s case found that both the police force and medical institution failed to discharge the duty of care owed to Ms Dhu, as the behaviour of both medical officers and the police officers fell below what was expected of someone in their position. In delivering this conclusion, the coroner considered the officers’ ‘disregard and complete indifference to Ms Dhu’s condition’ (2016: 476). The coroner called ‘shameful’ (2016: 480) the decision to handcuff Ms Dhu when she was near unconscious and drag her by her arms into the back of a police van rather than calling an ambulance, and the mindless acts of ‘going through the motions’ (2016: 479) rather than acting with regard for Ms Dhu’s life. The coroner speaks of the failure of the officers to modify their behaviour to fit ‘what was happening before their very eyes’ (2016: 464, 637). She is at times awestruck by this failure to see and respond, which her report suggests is not just the failure of a legal duty of care, but a failure of humanity.

However, the coronial report’s inability to speak in the register of either criminal responsibility or social reality meant that it was unable to account for the role played by institutional racism in Ms Dhu’s death. Institutional racism here refers to the way in which public institutions and their agents work seamlessly together in the racist oppression of Indigenous peoples, its consequences illustrated in virtually all aspects of Indigenous civic life: in housing, employment, education, health care, over-policing, over-incarceration and access to justice (Davis, 2006: 142; RCIADOC Vol 2: 12.1.28; McConnachie et al., 1988). The coroner found that the officers’ inhumane treatment of Ms Dhu was linked to the police officers’ inability to ‘reassess’ risks (2016: 467, 513 538, 544, 561, 591). However, she clearly stated that: ‘I did not find that any of the HHC staff or police were motivated by conscious deliberations of racism in connection with their treatment of Ms Dhu’ (WA State Coroner, Inquest 11020-14, 2016: 859). Her report acknowledges the existence of ‘societal patterns that lead to assumptions being formed in relation to Aboriginal persons’ (2016: 860) and that staff were motivated by these ‘preconceptions’ (860) but then proceeds to bypass the level of the institution – the police and the medical profession – and instead faults society as a whole: ‘this is not a matter only for HHC, or its staff or the police. It is a community wide issue…’ (2016: 860). The report thus does not consider police officers and medical personnel within the social matrix of institutional life, the collective assumptions, behaviours and habits in our workplaces in which we learn and reproduce structural racism and colonial patriarchy. The coroner does not stop to inquire further, for example, into her finding that the only person who treated Ms Dhu with dignity in the days before her death was the most ‘inexperienced’ police officer, and thus also the officer who had the least exposure to the kind of indoctrination that is characteristic of ‘doing the job’ of policing (WA State Coroner, Inquest 11020-14, 2016: 667).

Institutional racism has been long decried as an acute problem in the provision of health services to Aboriginal people in Australia (Henry et al., 2004), and this is clearly reflected in Ms Dhu’s experiences. When she visited the hospital the first time, she was seen by Dr Lang, who later described Ms Dhu as agitated, reluctant, guarded, angry and attention-seeking (WA State Coroner, Inquest 11020-14, 2016: 277), also testifying that Ms Dhu manifested her pain in an exaggerated manner (291–292). Lang’s claim at the inquest that her notes did not reflect her true diagnosis of musculoskeletal pain drew criticism from the coroner who stated that, however, short on time, there would have been opportunity to record ‘musculoskeletal pain’ if that was in fact her finding – rather than the recorded diagnosis of ‘behavioural issues’ ( The Guardian, 2015b: 299). Similarly, Dr Naderi, who saw Ms Dhu the next day, wrote that Ms Dhu had ‘behavioural issues’ (WA State Coroner, Inquest 11020-14, 2016: 401) even though Ms Dhu had been ‘crying in pain’ (2016: 390; SBS Australia, 2016). The systematic and cumulative failure to investigate her symptoms of fever and to call for an X-ray was called by a medical expert ‘premature diagnostic closure’ (WA State Coroner, Inquest 11020-14, 2016: 222), which occurs when a physician’s diagnosis is shaped by the previous diagnosis, consequently rubber-stamping the same. The coroner’s report concludes that police and medical professionals reinforced each other’s behaviour: the police’s account of Ms Dhu’s behaviour contributed to the physicians’ quasi-diagnosis of ‘behavioural issues’, and in return their medical verdict ‘fit to be held’ ‘authorized’ police indifference to her worsening condition. Blue argues that this reinforcement also occurred through more subtle means like gestures, eye-rolls and off-hand comments, moments of microsolidarity ‘in which state agents – who wear official uniforms and have to deal with “those people” – those rendered sick, unwell, unruly, and disorderly by the historical and social forces of colonialism – communicate a shared experience to one another’ (2016a: 3). The CCTV footage of Ms Dhu’s return from the hospital further captures the officers trivializing her pain, painting her as deceitful: ‘Paracetamol? After all that?’ one officer commented, as she painfully exited the police van.

The coroner’s report conveys the injustice of Ms Dhu being painted as deceitful, destructive, angry and merely attention-seeking when she reached out for help from those who owed her a duty of care when she was most vulnerable. This injustice was strikingly apparent in the CCTV footage of her last day alive, when an officer, insistent that Ms Dhu was indeed faking her illness, attempts to yank her into a sitting position but loses her grip, causing Ms Dhu to hit her head on the concrete floor. Although the officer claimed she ‘lost her grip’ (WA State Coroner, Inquest 11020-14, 2016: 510), she failed to even ask Ms Dhu if she was okay (2016: 519) but merely made sure there was no blood on the floor (2016, 522). Incredibly, the officer rationalized her inhumane treatment at the inquest by explaining that she was ‘distracted’ by Ms Dhu’s complaints of numbness and even failed to concede that her behaviour stemmed from her preconception that Ms Dhu was faking her illness (WA State Coroner, Inquest 11020-14, 2016: 525).

Ms Dhu’s treatment by medical professionals and police bears the hallmarks of the intersecting violences Indigenous women experience in settler states, which continue to ‘mark Aboriginal women seeking health care as responsible for their own ill health, inherently sick and dysfunctional, and often beyond the pale of being helped’ (Razack, 2015). Razack understands these ideas as deeply embedded in the public institutions of settler societies, tying in with ‘long-standing racist ideas of Aboriginal people as polluted, child-like, and incapable of being modern subjects’ (2015: 117). As not only a criminal’ but also a ‘junkie’, Ms Dhu was framed as a destructible and ungrievable life (Butler, 2004, 2009) in the eyes of those who owed her care, and to that effect, the precarity of her life became unintelligible for the police and doctors she encountered. As a supposed ‘addict’, Ms Dhu was even transformed into a display piece, an index of failed subjectivity. The footage shown at the inquest showed Officer Bond saying to another person being held in lockup: ‘I am going to show you something. This is what happens, you end up like this woman here. It’s a good deterrent not to take drugs’ ( Guardian, 2016b; WA State Coroner, Inquest 11020-14, 2016: 583). This statement, although aimed at a woman suffering deadly effects of traumas caused by the state, was wholly aimed at reducing her into a fictionalized story of morality, a figure that could not only not be saved but, as an addict, had brought it upon herself, and was therefore unworthy of compassion (Brook and Stringer, 2005; Seear and Fraser, 2010).

State violence is routinely naturalized and scaled down by the coronial inquest into deaths in custody. Although the coroner acknowledged Ms Dhu’s death as preventable (WA State Coroner, Inquest 11020-14, 2016: 232–234), the report also betrays a sense of how Ms Dhu’s life, like the lives of other Indigenous persons in custody, is understood by legal and judicial officers as ‘irreversibly damaged’ (Razack, 2011). This is apparent in the coroner’s discussion of the ‘social determinants of ill health’ (2016: 853–857) of Indigenous peoples, and how Ms Dhu’s ‘destructive and inevitably futile’ (853) drug use increased her susceptibility to acute infection. The coroner concludes that ‘very tragically, the social determinants of ill health of Aboriginal persons were borne out in Ms Dhu’s life and in the sequence of events that led to her untimely death’ (Inquest, 2016: 861). This statement frames Ms Dhu as a disposable life, naturalizing her death, making it timely rather than untimely. It acknowledges her death as something suffered but never committed (Razack, 2014: 17). Inquests thus function as sites for the reproduction and legitimation of settler colonialism and racism, prevented by their narrow scope of inquiry from addressing social structural effects of colonialism (Gray, 2016: 81). Because the inquest is part of a system predicated on Ms Dhu’s erasure as a full legal subject, her death is acknowledged as a failure of procedure in an otherwise functional and neutral system of governance, rather than part of a colonial project that is constituted on the elimination of the indigenous other. Meanwhile, the coroner’s language of risk management perpetuates the myth that the state is benevolent and has a vested interest in the preservation of indigenous life (Gray, 2016: 81). The irresistible conclusion is that Ms Dhu’s death is the fault of institutions that are working as they are intended to work; this conclusion precludes any real understanding of how state agencies are responsible and accountable for the violence they inflict.

Justice Beyond the State: The Work of Mourning

The coronial report evinces the characteristics of official discourse aimed at ideological closure (Burton and Carlen, 1979), in its treatment of Ms Dhu’s death as an isolated black mark on the functioning of an otherwise neutral and benign state system. The political inertia in the wake of the report’s findings, and the broader national and international discussion about the treatment of Aboriginal peoples in Australia, starkly reveals state agencies that seem incapable of reckoning with and taking responsibility for their own violence. However, an alternative project with a vested interest in mourning Ms Dhu has been able to address this constitutive blindness through an aesthetic practice of making her visible. In February 2016, while waiting for Ms Dhu’s inquest to resume for its second half of hearings, a group calling themselves ‘allies of Ms Dhu’, comprised of artists, activists and advocates, aiming to ‘support and show solidarity with Ms Dhu’s family’, ² organized the temporary projections of images of Ms Dhu and her grieving family onto the sides of buildings that were symbolically complicit in her death. Ethan Blue, a historian who attended the inquest and took the photographs of the projections reproduced here, described their project as ‘an attempt, aesthetic and political – modest, incomplete, mournful, angry – to return Ms Dhu to the world from which she was taken too young’. He explains:

Each evening, a small group of people load into their car with a projector and laptop, and travel Perth’s streets. They find prominent or symbolically resonant buildings – the East Perth lockup, the Western Power building, the Telstra Building, among others. They stop and point the projector, and giant, haunting images of Miss Dhu light the walls and overlook the city. (2016b)

The projections were visible to members of the public in situ, but photographs of the projections were also shared in newspaper reporting and social media after the event, thus forming another layer of visibility and resistance by circulating as part of an online counter-cultural public memorializing. As a social practice of informal justice of the kind sought in public and counter-public online spaces and in communities in civil society (Powell, 2015), this kind of justice looks to the needs of victims of violence – the need to be heard and acknowledged, or to be properly seen – and provides an opportunity for citizens to witness and to take responsibility.

In Figure 1, the image of Ms Dhu against the image of an Aboriginal flag as representative of Indigenous sovereignty connects her life to the sovereignty of her people and situates her death as yet another act of state violence and part of an ongoing pattern of dispossession, racism and silencing. Other projected images of the Australian flag with the phrases ‘Black Lives Matter’ and ‘Unpaid Fines Should Not Be a Death Sentence’ sutured Ms Dhu’s story into global narratives of disenfranchisement and police violence. ⁴ The allies chose buildings that were symbolically complicit in Ms Dhu’s death, such as the Royal Perth Hospital and the Police Forensic Unit. They even managed to beam the hashtag ‘JusticeforMsDhu’ onto Parliament House. Blue explains that the allies identified these buildings, along with other sites, as ‘sites of death and of state power, institutions of infrastructure, communication, and capital formation’ and worked with the aim of ‘reappropriating the surfaces of the city – a city based on capital accumulation through mining and real estate speculation – and to make these into spaces of hope, spaces of opposition, spaces of mourning, spaces of care, and spaces of survival’ (2016a: 10). The city is a particularly potent symbol of settler colonialism because its formation is predicated on indigenous dispossession and maintained by the relentless criminalizing of indigenous presence in urban public space. By inserting Ms Dhu’s image into constitutively public space, the projections call attention to the question of which bodies are valued, cared for and mourned, and which ones remain foreclosed, unmourned and dispossessed (Butler, 2004, 2009). The appearance of images of Ms Dhu and her grieving family on these institutions effectively unmasks ⁵ the state’s violence against Indigenous people, often normalized in the public sphere. The images gently rupture smooth institutional surfaces to insist that Australia’s colonialism is not a thing of the past but rather operates underneath and within structures of law, land and governance. They powerfully suggest that ‘the history of land, law and sovereignty are inseparable from personal suffering’ (Rijskijk, 2016: 13).

OPEN IN VIEWER

Figure 1.

Western Power Building. Photograph by Ethan Blue, 2016. Reproduced with permission.

Importantly, in turning to buildings that represent public institutions, the projectionists are also refusing to give up on these institutions. On behalf of Ms Dhu as a fellow citizen, they are making a public claim for accountability and a call to answer to the democratic promise of those institutions. They assert her inclusion as a member of the lawful public; they are attempting to engage the state at the symbolic sites of democratic governance, public health and criminal justice and to hold it to account on those specific sites. The projections on these institutions challenge the authority idea of institutional transparence, layering them with an alternative voice (Hoskyns, 2014: 83).

The projections of Ms Dhu’s image function as acts of mourning that work against the dehumanization of the state, to powerfully insist on Ms Dhu both as an individual and as a member of a family and community. The youthfulness and vitality of her portrait photograph (Figures 1 and 3) underlines her death as an unnatural aberration. The image of her mourning grandmother (Figure 2) situates her within a family that loves her, and the background of public protest illustrates the resistance and solidarity that is inherent to publicly grieving a life that has been framed as ungrievable (Butler, 2009). This memorial practice is political because it makes the issue of private grief one of public concerns, transforming an individual loss into a construct of collective loss (Gibson, 2008). At the same time, the light projections gesture towards affective networks of friendship and community built on testimony, struggle, survival and response to trauma. Projecting the image and looking at it as part of a collective allows the family members of Ms Dhu to see her being seen; the projections stage a multivalent act of witnessing and feeling. The projections are the work of mourning, enacting the responsibility before the dead that according to Derrida is a precondition for thinking and enacting justice (Derrida, 1994: xix).

OPEN IN VIEWER

Figure 2.

Photograph by Ethan Blue, 2016. Reproduced with permission.

OPEN IN VIEWER

Figure 3.

Photograph by Ethan Blue, 2016. Reproduced with permission.

The temporary aspect of ‘light graffiti’ or projection art gives it a particularly destabilizing and interrupting force as a form of public art (Philip, 2003: 38). As projections require darkness to appear, the projections of Ms Dhu appeared on a sleeping building, dreaming of itself, reconstituting itself and revealing the institution’s unconscious: that which has to be elided by day, by normal function, but comes to the fore in glimpses, at night. As images that are beamed through the air for limited times, they appear to merely – temporarily – appropriate space, rather than dominating and destroying space (Butler, 2012: 102). Thus, like other forms of public art and activism, the projections of Ms Dhu’s image operate according to a decolonizing logic, as they operate beyond the framework articulated by the Australian (in)justice system. They protest in a way that is not caught in the ambit of law, as temporary projections are not captured under graffiti laws. ⁶ Juliet Roger’s analysis of the language of protest helps us understand what is at stake in this temporariness, this gentle superimposition and its refusal to mimic the tools of the sovereign. In their departure from the sovereign script, these projections are not acts of melancholia that expect the state to be able to ‘return’ the lost object. Rather, they are acts of mourning (Rogers, 2009). By revealing sovereign violence, while refusing to commit the same violence, the projections become ‘a symbolic violence that truly disturbs’ (Rogers, 2009: 276).

Conclusion

As critical legal scholars of sovereignty have demonstrated, the historical silencing of Indigenous voices, disqualification of their knowledges, and erasure of their experiences, lies at the heart of Australian sovereignty (Motha, 1998: 92–94; Moreton-Robinson, 1998: 12; Spivak, 1988: 280; Kaunanui and Wolfe, 2012: 241). Terra nullius and its tools of ‘worlding’ and epistemic violence necessitated the dispossession of Indigenous land and obliteration of Indigenous subjectivity (Spivak, 1988: 281). It follows that Indigenous peoples continue to be addressed by the state within a framework that endeavours to legitimize the White settler state’s paternal governance and continue to be imagined within parameters that determine the ‘death of his or her possibilities’ (Birrell, 2010: 222). Projecting an image of Ms Dhu with the Aboriginal flag in the background challenges the narrative of what Moreton-Robinson has called White possessive sovereignty: The idea that White possession and occupation of land is the only legitimate way of exercising sovereignty and the way in which whiteness constantly seeks to own and dispossess on the assumption that everything is for its taking (Moreton-Robinson, 2004). As Wolfe has famously written, ‘invasion is a structure not an event’ (2006: 388). The mechanisms of White possessive sovereignty are ongoing and therefore open to contestation. In writing Ms Dhu’s life, her kin, and her claims to sovereignty, back into the surfaces of the city, the projections seek to acknowledge the unsettling presence of indigenous peoples and to recognize a shared history (Behrendt, 2005) as well as the ongoing struggle of Aboriginal people to live as lawful beings on the country in which the matrix of colonial power is a fixture in their lives (Watson, 2015).

The Australian state’s complicity in and inadequate response to Ms Dhu’s death demonstrates that when vulnerable Indigenous bodies die prematurely, such death is naturalised and deemed an inevitable conclusion to a destructible life. In this article, we have argued that seeing Ms Dhu’s invisibility within the context of Australia’s dispossession, over-incarceration and biopolitical management of its Indigenous population helps us comprehend how the settler state’s ongoing material and epistemic violence resulted in the custodial failure to ‘see’ beyond constructed stigmas forcibly imposed upon Ms Dhu’s body. The coroner’s report concludes that Ms Dhu’s death was a product of individual failures to act with regard for human life, without tracing these failures to their structural and institutional beginnings. Although the coroner acknowledged the blindness that caused Ms Dhu’s death, she deemed this a product of ‘society’ rather than understanding the state and its institutions as accountable for her death. Until her death, the state ensured Ms Dhu’s invisibility to the point where the officers literally did not see her as a human being, but rather as a wasted and waste-able life. Ms Dhu’s experiences while in custody illustrates that the state’s necropolitical logic crafted her as a destructible subject to whom no care was owed and no harm could be done. The inevitable conclusion is that Ms Dhu’s death was not an unfortunate accident but part of the settler-colonial project’s endeavour to perfect its imperfect sovereignty through the elimination of Indigenous lives. In the wake of the coronial inquiry and the failure of the police and political figures to adequately respond to Ms Dhu's death and deliver justice to Ms Dhu and her family, alternative projects of reckoning with the brutality of Indigenous encounters with the criminal justice system and its connection to settler colonialism offer new ways of challenging the state’s assumed authority and jurisdiction over indigenous bodies. In projecting Ms Dhu’s image, the image of her family and the Aboriginal flag onto institutions that are bound up in the ongoing violence to indigenous persons, land and sovereignty, the allies of Ms Dhu unsettle the comfortable narratives of possessive White sovereignty and hold the public institutions of the apparently neutral state to account for their structural violence against indigenous people. The continued activism of Ms Dhu’s family and others working for an end to indigenous deaths in custody is a powerful call for justice that refuses to settle for the terms offered by colonial patriarchy and enacts an indigenous politics of decolonization that is echoed by others engaged in the business of surviving settler states across the globe.