Preface: I would like to first acknowledge and pay respects to the traditional owners of this land on which we reside, by whom sovereignty was never ceded.
- Introduction
During a trip up the coast with friends, we saw an ad for scabies medication in between the movie we were watching. We watched, horrified, as the cartoon ad showcased a group of Indigenous people, sitting in a park in minimal clothing, scratching themselves. A white male doctor then emerged and handed them scabies medication, and the Indigenous people cheered and thanked him.
The foundation of this country was built on our Indigenous population being brutally written out of the legal narrative, starting with the unlawful doctrine of terra nullius, meaning‘land belonging to no one’. This act of sanctioned, epistemological violence attempted to remove autonomy from our First Nations people, initiating a pervasive partnership with colonialism that evidently persists today.
As a Muslim woman who has continually struggled to consolidate her own cultural roots, the plight of the First Nations peoples remains one close to my heart, a mark on my own complex understanding of what it truly means to be an ‘Australian’. I want to clarify here that I am not an Indigenous Australian myself, so I cannot speak to the deep loss and intergenerational trauma felt by our First Nations people. Growing up in Australia however, it is impossible to ignore the unspeakable tragedies experienced by our Indigenous population, and I was personally privy to such intergenerational trauma in my own mixed household.
Australian history showcases a ruthless pattern of colonial dominance, our First Nations people not even legally recognised until the relatively recent overturning of terra nullius in Mabo (No 2) in 1992.[i] Whilst this doctrine has been officially ‘overturned’, the British common law system still prevails over Indigenous sovereignty, thus codifying the colonial legacy in our legal instruments.[ii]
The law has always been a devastatingly powerful tool and wielded correctly it carries the abilities to shape and better nations.
Wielded incorrectly and it destroys.
- What is ‘Epistemic Violence’?
The term ‘epistemic violence’ was introduced into postcolonial academia by Professor Gayatri Chakravorty Spivak and refers to violence inflicted through ‘thought, speech, and writing, rather than actual physical harm.’[iii] The colonial narrative perpetuated by the Australian legal system is a form of epistemic violence, in which the voices of the Indigenous population are silenced and limited, in favour of relying on paternalistic attitudes of ‘improvement’ for First Nations communities.
As a graduated law student, I cannot count the number of times that I have heard people complain about the ‘extra benefits’ awarded to Indigenous peoples. It would seem that some find it ludicrous that government money is being used to provide extra support to Indigenous peoples, when reconciliation has already been ‘achieved’ in Australian society.
Of course, despite this ‘reconciliation’ rhetoric, conditions for Indigenous peoples have largely not improved. The Overcoming Indigenous Disadvantage 2020 Report shows regression in nutrition, access to healthcare, overall mental health, drug and substance abuse, child abuse, imprisonment rates, youth detention, with the list continuing.[iv]
In 2020, I attended the Black Lives Matter protests, and I had the fortune to listen to several beautiful Indigenous speakers and activists share their story. I listened to Paul Silva, a proud Dunghutti man, tell the story of his uncle, David Dungay Jr, who died in police custody.
David Dungay Jr was murdered in 2015 after being restrained for eating a packet of biscuits in his cell. He died saying that he couldn’t breathe, repeating it over 12 times before losing consciousness.[v]
His murder was ruled an accident.[vi]
I stood there, in tears as they shared his story and their continued fight to obtain justice, with David Dungay Jr’s murder still yet to be investigated.
The pain of the Indigenous people is incomprehensible. It has deep roots, ones that trace all the way to the beginning of this country, and yet here they are still fighting regardless. I am awed by the resilience of the Indigenous population, their persistent bravery in the face of constant violence marks a heroism that words cannot express.
After the protest I attended a public parliamentary hearing, where a select council were holding an inquest on the ‘high level of First Nations Peoples in custody’. Feeling deeply inspired by BLM speakers, I wished to see the law in work, to see the practical changes that could offer some justice to the Indigenous families.
The purposes of the select council may have been honourable, but I sat there for an hour listening to various white men in high- ranked offices deny that any misconduct had occurred. It was eerie and disturbing to go from hearing about the horrific details of the murders at the protest, to watching police officials deny that any suspicious conduct had occurred. Any mention of creating a separate Indigenous investigation body was denied, with a constant insistence that the police could handle it internally.
The justice system upholds the colonial narrative so strongly that literal murder is not suspicious enough to warrant a full investigation, let alone a trial. This structure of the legal system allows it to protect itself, and so the technical legality of this modernised paternalism creates a paradox in which contemporary colonisers do not need to face the brutality of their actions.
Since first writing this piece in early 2021, 110 more Indigenous people have been murdered in custody. An Indigenous inquiry body still does not exist. The police continue to conduct ‘internal investigations’ and nobody has been held publicly accountable.
The available methods of recovery for Indigenous peoples are hollow, a means of preserving an ongoing cultural displacement as opposed to securing any sort of Indigenous empowerment.
In June this year, David Dungay Jn’s family made a complaint to the UN Human Rights Commission, to facilitate a chance for reform through international pressure, and to hold the Australian Government responsible for its inaction in the face of human rights abuses. [vii] Their aim is for the 339 recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody to finally be implemented, to provide at least some avenues of support for First Nations peoples.[viii]
To witness the tragedy of David Dungay Jr is to acknowledge that the legal system is inherently broken, made only to sustain the colonial powers that constructed it.
The continued denial of the traumatic effects of current policy frameworks adds another layer to the violence endured by the Indigenous peoples, as they have to constantly work against popularised narratives to prove their suffering. This is exactly where the epistemic violence flourishes, as it becomes an uphill battle for Indigenous peoples to become vocal in political and legal spaces, let alone to be given the opportunity to fight for justice and practically reach their goals.
The interests of the colonial elite at the apex of the state will always come first at the cost of countless human lives and the progression of intergenerational trauma for First Nations people.
Which begs the question, how can Indigenous people possibly seek justice when the colonial system continually prevents them?
- Paternalistic Benevolence and The Northern Territory Emergency Response
The Northern Territory Emergency Response (NTER) is the poster child for a recent example of epistemic violence in practice. It was a radical governmental initiative in 2007, that occurred following the Ampe Akelyernemane Meke Mekarle: Little Children are Sacred Report,[ix]which investigated child sexual abuse in the Northern Territory. The report was specifically focused on implementing ways for supporting the mental and physical wellbeing of Aboriginal children, who were disproportionately represented in instances of violence.
It consistently advocated for the importance of joint Indigenous and governmental effort, emphasising that the safety of the children must be prioritised, and that First Nations peoples must be consulted to design appropriate responses.[x] The Howard Government declared it a ‘national emergency’, using it as a launchpad to rapidly pass a series of paternalistic measures.
Firstly, legislation was passed suspending the Racial Discrimination Act 1975 for affected Indigenous communities, as the NTER was deemed a ‘special measure’.[xi] This allowed for the introduction of Indigenous specific laws, including purchase limitations on alcohol and pornography, with harsher penalties imposed on Indigenous people exclusively for breaking these laws. To enforce this there was also increased policing in selected Aboriginal communities.[xii]
The few existing Indigenous cultural rights were also removed. There was an elimination of customary law and Indigenous cultural practices from bail applications and sentencing in criminal trials. The Community Development Employment Projects scheme was abolished, which provided funds to help rural Indigenous communities with employment and skill development. The permit system for gaining access to traditional Aboriginal land was removed. Townships legally acquired under the Native Title Act 1993 were seized by the government through the introduction of five-year leases, which gave unfettered access to Indigenous land. Over sixty-five Aboriginal communities were affected by this, an act that cannot be described as anything less than a colonial conquest.[xiii]
The day-to-day lifestyle of the Indigenous population was also greatly affected. The government implemented a 50% control measure over welfare payments from individuals living in certain remote Indigenous communities. Government school attendance was enforced as these family welfare payments would be suspended if attendance was low, subjecting Aboriginal children to learn in English for the majority of the school day. [xiv]
The extraordinary measures of this intervention created communities that were entirely surveilled and controlled by these forceful interventionist policies, a brutal form of assimilation.
Yet, neither the word ‘child’ nor ‘children’ appeared once in the entire Northern Territory Emergency Response Act.[xv]
In their speeches to Parliament, both Howard and Malcolm Brough, the Minister for Indigenous Affairs at the time, painted this intervention as the only way to protect Indigenous children. The language used was intense and dramatic, Brough infamously silencing critics by saying that anyone who opposed them was either “not a parent or doesn’t have a soul”.[xvi]
This rhetoric created a false binary that helped manipulate people into agreeing with the reforms in record time, as you were either with the children or you were not. There was little to no consultation with Indigenous elders and leaders during this process. Elder Raymattja Marika-Mununggiritj states how there was no discussion or agreement reached with the government, the white policies just automatically overriding the governance and law of the traditional Yolgnu peoples.[xvii] Any attempts to convey (not consult, just convey) documentation of the incoming policy changes to the Indigenous peoples was also done in English, which was often the third or fourth language for individuals living in these communities. [xviii] These thinly veiled colonial policies were thus enforced, composed in the violent tongue of the enforcer.
Although legislation like the Racial Discrimination Act 1975 is in place specifically to prevent initiatives like this from being undertaken, its suspension emphasises how the law privileges this perceived colonial benevolence over the actual needs of the Indigenous population. In the poem ‘beneviolence’ (2018), Gomeroi scholar and poet Allison Whittaker describes how she was struck by the overt paternalism of the NTER, beautifully captured in both the title and style of the poem.
“THIS IS GOOD FOR YOU!
THIS IS FOR YOUR GOOD. YOUR OWN
GOOD. THIS IS FOR YOU.”[xix]
As Spivak outlines, colonial forces are ‘at their worst when they are most benevolent’[xx], for this is precisely when colonial actions become codified, entrenching themselves in history as beneficial and compassionate acts, erasing this overwhelming violence from the popularised narrative.
The power of the law, in many ways, comes from the fact that it carries normative messages. An important element of the colonial fantasy is to consolidate paternalistic power around moral discourses, especially during crises, and the law does this remarkably well.[xxi] The ends are consistently portrayed to justify the means, and so the ridiculous white saviour concept is immortalised, the government protecting the natives from themselves, just as the colonial legend continues to dictate.[xxii]
Modern colonisers are reluctant to admit that their actions are violent and immoral, as legally, the NTER was enacted .[xxiii] To admit that this piece of legislation is vicious and discriminatory is to admit that the system that allowed it to pass is as well, an admission that damages the very structural foundation in which the settler fantasy is built up on.
And so, colonial violence continues to prevail. Time and time and time again.
- Conclusion
The violent silences faced by the Indigenous peoples through perpetration of the colonial account are overwhelming and overt, continually embedded within the legal system. By controlling the narrative, colonialists have presented the notion that their motives are positive, with centuries of First Nations peoples brutally suffering, yet ignored by countless paternalistic measures.
The only way forward is the same way that has been presented by Indigenous communities since the very beginning, the need to give First Nations peoples their own autonomy, and to dismantle the colonial narrative and the structures that maintain it, to admit to its undeniable malevolence.
It’s unsettling to be confronted by the complicity of the law in preserving oppression and genocide, but recognising the First Nations peoples as both a cultural and sovereign body remains the only way for progress and reconciliation to ever be attainable.
In the words of the Indigenous actor and activist Ernie Dingo, “Reconciliation is not for Aboriginal people. Reconcile the injustices that your forefathers have done, sit down, think about it, talk about it, get it out of the way and we’ll acknowledge your apology and move on. You want to bridge the gap? Try it from our angle.”[xxiv]
[i] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[ii] Irene Watson, “There Is No Possibility Of Rights Without Law: So Until Then, Don’t Thumb Print Or Sign Anything!” (2000) 5(1) Indigenous Law Bulletin.
[iii] Gayatri Chakravorty Spivak, “Can The Subaltern Speak?” in (Macmillan Education, 1988).
[iv] Australian Government Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2020 (3 December 2020) <https://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/2020>
[v] “Justice For David Dungay Jr”, National Justice Project (Webpage, 2020) <https://justice.org.au/justice-for-david-dungay-jr/>.
[vi] Ibid.
[vii] Carly Williams, “Mother Of Indigenous Man Who Died In Custody Takes Fight For Justice To United Nations”, ABC (Webpage, 2021) <https://www.abc.net.au/news/2021-06-10/david-dungay-family-take-fight-to-united-nations/100200828>.
[viii] Ibid.
[ix] “Ampe Akelyernemane Meke Mekarle: “Little Children are Sacred”” (PDF). Northern Territory Government. Board Of Inquiry Into The Protection Of Aboriginal Children From Sexual Abuse.
[x] Fiona Proudfoot and Daphne Habibis, “Separate Worlds: A Discourse Analysis Of Mainstream And Aboriginal Populist Media Accounts Of The Northern Territory Emergency Response In 2007” (2013) 51(2) Journal of Sociology.
[xi] Northern Territory Emergency Response Act 2007, 132.
[xii] Ibid, 11-25.
[xiii] Alison Vivian, and Ben Schokman. “THE NORTHERN TERRITORY INTERVENTION AND THE FABRICATION OF ‘SPECIAL MEASURES.’” (2009) 13(1) Australian Indigenous Law Review.
[xiv] Ibid.
[xv] Northern Territory Emergency Response Act 2007.
[xvi] Adam Gartrell, “Intervention Critics ‘Have No Souls'”, (Webpage, 2007) <https://www.news.com.au/national/intervention-critics-have-no-souls/news-story/6ff153c2cd1273dab4ccb8bd510e6b90>.
[xvii] Koori Mail, “NT intervention: Study finds Govt is dragging its feet” (2007).
[xviii] Jens Korff, “Northern Territory Emergency Response (NTER) – “The Intervention””, Creative Spirits (Webpage, 2021) <https://www.creativespirits.info/aboriginalculture/politics/northern-territory-emergency-response-intervention>.
[xix] Alison Whittaker, Blakwork (Magabala Books, 2018), 128.
[xx] Gayatri Chakravorty Spivak, (ed Sarah Harasym), The New Historicism: Political Commitment and the Post-Modern Critic’ The Post-Colonial Critic – Interviews, Strategies, Dialogues (Routledge, 1990), 160.
[xxi] Ghassan Hage, White Nation: Fantasies of White Supremacy in a Multicultural Society (Routledge, 1998), 48.
[xxii] Barbara Flagg, Was Blind, But Now / See – White Race Consciousness and the Law (New York University Press, 1998), 51.
[xxiii] Judy Atkinson, Trauma Trails, Recreating Song Lines: The Transgenerational Effects of Trauma in Indigenous Australia (Spinifex Press, 2002), 11.
[xxiv] Jens Korff (n 12).