Marchetti, Elena --- "Indigenous Women and the RCIADIC - Part I" [2007] IndigLawB 58; (2007) 7(1) Indigenous Law Bulletin 6
Indigenous Women and the RCIADIC – Part I
by Dr Elena Marchetti
In 1991, the reports of two important public inquiries into the relationship between Indigenous people and the criminal justice system were published. The first, released in Australia on 15 April 1991, was the final national report of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’).[1] The second, released in Canada on 29 August 1991, was the report of the Public Inquiry into the Administration of Justice and Aboriginal People (or as it is commonly known, the Aboriginal Justice Inquiry of Manitoba (‘AJI’)).[2] Both reports were the result of lengthy and detailed investigations into the ways in which Australian and Canadian Indigenous people were treated by the corresponding justice system, particularly the criminal justice system.
The two inquiries were in many ways similar. Both were initiated due to controversies surrounding the deaths of certain Indigenous people and the subsequent investigations of those deaths by police. In addition, the establishment of both inquiries was controversial, and challenged by a variety of institutions and organisations. Furthermore, both inquiries made a large number of recommendations dealing with the dispossession and marginalisation of Indigenous people as these were recognised as underlying factors in Indigenous peoples’ ongoing negative relations with the criminal justice system.
There was, however, one glaring difference between the final reports of the two inquiries: the manner in which each report considered the problems that confronted Indigenous women. The AJI report contained an entire chapter which discussed the relationship between Aboriginal women and the Manitoba justice system.[3] Within this chapter there were 19 recommendations that specifically related to the problems confronting Aboriginal women. The Royal Commission into Aboriginal Deaths in Custody National Report (‘the National Report’), however, included no such chapter and it expressly referred to Indigenous women in only five of its 339 recommendations. The National Report and the regional reports of Commissioners Dodson and Wootten did contain discrete sections (as opposed to chapters) which considered the position of Indigenous women. However, while these sections took a gender-specific approach, the sections were far from substantial.[4] Given that the Canadian and Australian inquiries were conducted during similar time periods and in jurisdictions with such similar legal systems, histories and western cultural norms, it is intriguing that the problems of Indigenous women were addressed so differently in their respective reports.
This paper is the first of a two-part article on the topic of the RCIADIC and Indigenous women. This part considers to what extent the ‘official’ RCIADIC reports (ie the National Report and the regional reports)[5] addressed the problems of Indigenous women. It uses data collected from a thematic and comparative content analysis of the official RCIADIC reports and texts prepared by Aboriginal Issues Units (‘AIUs’) to consider the extent to which the official RCIADIC reports considered problems concerning Indigenous women. Part II, which will appear in the next issue of the Indigenous Law Bulletin, explains why the inquiry itself did not focus more on the problems concerning Indigenous women. The explanation relies on interview data collected from 48 people who were associated with the inquiry.
Criticisms of the RCIADIC Inquiry and Official Reports
To date, the majority of criticisms directed towards the RCIADIC inquiry and its official reports have related not to the work of the RCIADIC itself, but to the extent to which Commonwealth, State and Territory governments have implemented, or failed to implement its recommendations.[6] However, there have been other critical commentaries of the inquiry and its official reports, which can be categorised as those that critique the methods and procedures of the inquiry;[7] and those that critique the manner and extent to which certain topics were considered in the official RCIADIC reports.[8] Those that challenge the inquiry and its National Report for failing to address the problems faced by Indigenous women as offenders and victims fall within this latter category.
A number of scholars explicitly criticised the inquiry and its official reports, both during the investigation and after the National Report was tabled, believing it did not sufficiently consider the problems faced by Indigenous women when engaging with the criminal justice system. Sharon Payne, for example, contends that although the inquiry considered the deaths of 11 females in custody and acknowledged the appalling levels of family violence and sexual assault against Indigenous women in the community, ‘the [RCIADIC] did not include specific references to problems faced by women’.[9]
The dominant complaint of those commenting on the lack of consideration of the problems facing Indigenous women is that there was little, if any, discussion of the prevalence of family violence within Indigenous communities in the official RCIADIC reports.[10] All of the critics associate the occurrence of family violence with the excessive consumption of alcohol in Indigenous communities and although this is acknowledged in the official RCIADIC reports, critics claim that this did little to ensure Indigenous women and children would be safe from violence. This is mainly because the National Report focused on decriminalising drunkenness and establishing treatment centres or sobering-up shelters in relation to alcohol abuse which did not, according to the critics, address the needs of women and children.
This paper draws on my PhD research and goes further than previous critiques, since it compares the content contained in texts prepared by the Aboriginal Issues Units and the official RCIADIC reports in determining the extent to which the official RCIADIC reports considered problems confronting Indigenous women.[11] The AIUs were established as semi-independent research units, which were to operate as autonomous units that organised meetings and interviews with Indigenous people and organisations, and conducted necessary research work, but which were essentially accountable to each regional commissioner by having to submit a report of their findings. The AIU reports were therefore considered to represent the Indigenous voice. The content of the AIU reports was to ultimately inform the content of the official RCIADIC reports, particularly the National Report. Comparing the content of the two sets of reports provides a basis for determining the extent to which the official RCIADIC reports (particularly the National Report) represented the concerns of the Indigenous people who were consulted during the inquiry.
A Comparative Content Analysis of AIU Texts and the Official RCIADIC Reports
A comparative content analysis of official RCIADIC reports and the AIU texts reveals that the material contained in the National Report and the regional reports reflected, albeit to a limited extent, problems that had been raised in the AIU texts. The focus of the AIU texts (in relation to the problems confronting women) was the prevalence of family violence and alcohol abuse;[12] violent treatment of Indigenous women by the police;[13] the need for victims of violence to be able to access legal representation;[14] the need to recognise women’s customary law;[15] problems with accessing appropriate hospital care when giving birth and the lack of support from partners;[16] and the need for women to be employed in the criminal justice system.[17]
In contrast, the official RCIADIC reports only briefly mentioned the existence of family violence and the inappropriate treatment of Indigenous women by police.[18] Some reference was made in the official RCIADIC reports to the lack of access to appropriate legal services for victims of violence and the lack of appropriate health and training services for Indigenous female offenders whilst in custody.[19] The official RCIADIC reports also extensively discussed the offending patterns of Indigenous women,[20] the need to immediately and appropriately inform families of a death in custody and post-death investigation, and the need for family members to be able to easily visit an offender in custody.[21] The official RCIADIC reports highlighted housing as a problem, in a way which focused specifically on Indigenous women.[22]
Recommendation 229 in the National Report made particular reference to the fact that police services needed to ‘pursue an active policy of recruiting Aboriginal people … in particular … Aboriginal women’, which indicates a belief that not enough Indigenous women were employed in such a role.[23] This topic was, however, not explored in any great depth in the body of the official RCIADIC reports and it was not given as much consideration as in the AIU texts. Although the reluctance of Indigenous women to access birthing facilities in Queensland was mentioned in the National Report, it did not reflect the sentiments contained in the Queensland AIU report, which noted that Indigenous women were reluctant to give birth in hospitals located outside their communities because they felt scared and vulnerable.[24]
In summary, aside from the topics of housing, offending patterns of Indigenous women, visiting family members in prison, and informing families of a death in custody and of post-death investigations, other problems which concerned Indigenous women were not reported in the official RCIADIC reports to the same extent as in the AIU texts. This was particularly apparent in relation to the topics of family violence, police treatment of Indigenous women, the importance of employing Indigenous women in various service roles, and birthing facilities. Notably, the official RCIADIC reports lacked a gender-specific analysis of the problems that had the most harmful impact on Indigenous women: family violence and police treatment of Indigenous women.
Reference was made in the National Report to the fact that the victims of family violence were often women and children, but there was little consideration of how recommendations concerning the treatment of alcohol abuse affected those victims. Nor was there any recommendation to specifically address the problem of family violence, although both the AIU texts and the official RCIADIC reports emphasised the importance of family members being included in any alcohol rehabilitation program. Similarly, although Recommendations 60 and 88 in the National Report included references to the need for the elimination of violence and verbal abuse of Indigenous women by police and for policing services to better meet the needs of Indigenous women, the recommendations did not explore the magnitude of those problems.[25] There was no indication of how such criminal behaviour on the part of police should be disciplined or of the particular needs of Indigenous women in relation to policing services.
Most of the people I interviewed for my research maintained that there was no gender-specific analysis of any topic because the focus of the inquiry was on race. Despite this perception, almost half the interviewees claimed that ultimately, the disadvantage and marginalisation of young Indigenous males was the primary concern of the inquiry. This view was also reflected in the National Report and three of the regional reports. It was noted in the National Report, for example, that
Aboriginal juveniles, particularly males, require very particular consideration in this Report… Whilst the increasing involvement of Aboriginal females in the juvenile and adult justice system and the deaths of some of them is a matter of great concern, overwhelmingly the typical portrait of the Aboriginal deaths in custody was that of young males.[26]
Commissioners Dodson, Wootten and Wyvill also made similar comments in their regional reports.[27] The problems facing Indigenous people were therefore assumed to primarily relate to males. Although the observations in the official RCIADIC reports were based on empirical research which found that young Indigenous males did suffer many disadvantages and were greatly marginalised, other alarming statistics for females were identified in the AIU texts and official RCIADIC reports. For example, the Northern Territory AIU found that there were more deaths of Indigenous females by ‘alcohol-related murders’ than there were Indigenous deaths in custody during the relevant period.[28] Similarly, in New South Wales, ‘43% of homicides were within the family’ between 1968 and 1981 and ‘almost half (47%) of female victims of homicide were killed by their spouse compared with 10% of male victims’.[29] In Queensland, data collected from ex-reserve communities from 1987 to 1989 indicated that the death rate of Indigenous females was ‘more than 4 times that of all Australian females’ as compared to Indigenous males, whose death rate was three times that of all Australian males.[30] Despite such alarming statistics, ultimately the problems concerning Indigenous women were (as is often the case) overshadowed by the problems facing Indigenous ‘people’, which in reality equated to problems facing Indigenous men.
Dr Elena Marchetti is a Senior Lecturer in the Griffith Law School, Griffith University.
[1] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Royal Commission into Aboriginal Deaths in Custody: National Report (‘National Report’) (1991).
[2] Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba (1991).
[3] Ibid, 475 (vol 1, ch 13).
[4] In relation to the National Report see: National Report vol 2, 98-103 and 221-223 and vol 4, 435. In relation to Commissioner Dodson’s report see: Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry into Underlying Issues in Western Australia, Vol 1-2 (1991) (‘Regional Report of Inquiry into Underlying Issues in Western Australia’) vol 1, 375-382. There was also a chapter on ‘violence’ but it did not only relate to Indigenous women. In relation to Commissioner Wootten’s report see: Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) (‘Regional Report of Inquiry in New South Wales, Victoria and Tasmania’) 280-281. There was also a chapter on ‘domestic violence’ but it did not only relate to Indigenous women.
[5] The content of other Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) reports, such as the Interim Report and the death reports will not be considered in this paper.
[6] For an overview of some of these criticisms and reviews see Chris Cunneen, The Royal Commission into Aboriginal Deaths in Custody: An Overview of Its Establishment, Findings and Outcomes (1997).
[7] See, for eg, Gillian Cowlishaw, ‘Inquiring into Aboriginal Deaths in Custody: The Limits of a Royal Commission’ (1991) (4) Journal for Social Justice Studies, Special Issue Series: Politics, Prisons and Punishment - Royal Commissions and ‘Reforms’ 101; Mark Harris, ‘Deconstructing the Royal Commission - Representations of “Aboriginality” in the Royal Commission into Aboriginal Deaths in Custody’ in Greta Bird, Gary Martin and Jennifer Nielsen (eds) Majah: Indigenous Peoples and the Law (1996) 191; Jeannine Purdy, ‘Royal Commissions and Omissions: What Was Left out of the Report on the Death of John Pat’ (1994) 10 Australian Journal of Law and Society 37.
[8] See, for eg, Judy Atkinson, ‘Violence against Aboriginal Women: Reconstitution of Community Law - the Way Forward’ (1990) 2(46) Aboriginal Law Bulletin 6; Ron Brunton, Black Suffering, White Guilt? Aboriginal Disadvantage and the Royal Commission into Deaths in Custody (1993); Richard W Harding, ‘Prisons Are the Problem: A Re-Examination of Aboriginal and Non-Aboriginal Deaths in Custody’ (1999) 32(2) The Australian and New Zealand Journal of Criminology 108; Luke McNamara, ‘Aboriginal Human Rights and the Australian Criminal Justice System: Self-Determination as a Solution?’ (1992) 21(3) Manitoba Law Journal 544; National Aboriginal and Islander Legal Services Secretariat, ‘An Interesting and Informative Chat Is Not What I Had in Mind...’ (1989) 2(36) Aboriginal Law Bulletin 12; Marina Paxman, ‘Women and Children First’ [1993] AltLawJl 62; (1993) 18(4) Alternative Law Journal 153.
[9] Sharon Payne, ‘Aboriginal Women and the Law’ in Chris Cunneen (ed) Aboriginal Perspectives on Criminal Justice (1992) 31, 33.
[10] See for example: Judy Atkinson, ‘“Stinkin Thinkin” - Alcohol, Violence and Government Responses’ (1991) 2 Aboriginal Law Bulletin 4; Chilla Bulbeck, ‘The Dark Figures: How Aboriginal Women Disappeared from the Findings of the Royal Commission into Aboriginal Deaths in Custody’ (undated) 2; Sharon Payne, ‘Aboriginal Women and the Criminal Justice System’ (1990) 2 Aboriginal Law Bulletin 9.
[11] Elena Marchetti, Missing Subjects: Women and Gender in the Royal Commission into Aboriginal Deaths in Custody (PhD thesis, Griffith University, 2005).
[12] This topic was referred to in the reports prepared by the Northern Territory, Queensland and Western Australian AIUs: Aboriginal Issues Unit Queensland, ‘The Aboriginal Issues Unit Report to Commissioner Wyvill’ (RCIADIC, 1990) 26, 27; Aboriginal Issues Unit Western Australia, ‘Interim Report’ (RCIADIC, 1990) 123; and the Northern Territory ‘Too Much Sorry Business’ which was published in the National Report, above n 1, vol 5, 310.
[13] This was mainly referred to in the interim and final reports prepared by the Northern Territory AIU, the Queensland AIU report and the Western Australian AIU Interim Report. A person I interviewed from Tasmania also referred to this topic.
[14] This was referred to in the final report prepared by the Northern Territory AIU.
[15] This was referred to in the final report prepared by the Northern Territory AIU.
[16] This was referred to in the Queensland and Western Australian AIU reports.
[17] This was referred to in the Northern Territory and Western Australian AIU reports.
[18] In relation to family violence see in particular: National Report, above n 1, vol 2, 98-103; Commonwealth, RCIADIC, Regional Report of Inquiry in Queensland (1991) (‘Regional Report of Inquiry in Queensland’) 265-267; Commonwealth, RCIADIC, Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, Vol 1-2 (1991) (‘Regional Report of Inquiry into Individual Deaths in Custody in Western Australia’) vol 1, 234; Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) above n 4, ch 19; Regional Report of Inquiry into Underlying Issues in Western Australia, above n 4, vol 2, ch 6 and ch 20. In relation to police treatment see in particular: National Report, above n 1, vol 2, 223-242; Regional Report of Inquiry in New South Wales, Victoria and Tasmania, above n 4, 280-281; Regional Report of Inquiry into Underlying Issues in Western Australia, above n 4, vol 1, 250.
[19] See National Report, above n 1, vol 3, 90 and recommendation 106. The National Report also briefly referred to the lack of female police staff available to conduct searches of Indigenous female detainees and to the lack of appropriate training opportunities available in prisons for Indigenous female offenders.
[20] See for example: Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, above n 18, vol 1, 161; National Report, above n 1, vol 1, ch 7.
[21] See for example: Regional Report of Inquiry in New South Wales, Victoria and Tasmania, above n 4, 147-170, 119-122, 355; Regional Report of Inquiry in Queensland, above n 18, 78-81; Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, above n 18, vol 2, 589-591, 718-720, 964-969; Regional Report of Inquiry into Underlying Issues in Western Australia, above n 4, vol 1, 302-308; National Report, above n 1, vol 1, 157-180, vol 3, 237-238, 308-312.
[22] National Report, above n 1, vol 4, 465-466; Regional Report of Inquiry into Underlying Issues in Western Australia, above n 4, vol 2, 603, 610.
[23] National Report, above n 1, vol 4, 152.
[24] Aboriginal Issues Unit Queensland, 'The Aboriginal Issues Unit Report to Commissioner Wyvill', above n 12, 81.
[25] National Report, above n 1, vol 2, 223 and vol 3, 43.
[26] Ibid, vol 2, 251-252.
[27] See for example: Regional Report of Inquiry into Underlying Issues in Western Australia, above n 4, vol 1, 45; Regional Report of Inquiry in Queensland, above n 18, 49. Regional Report of Inquiry in New South Wales, Victoria and Tasmania, above n 4, 346.
[28] National Report, above n 1, vol 5, 285.
[29] Regional Report of Inquiry in New South Wales, Victoria and Tasmania, above n 4, 339.
[30] Regional Report of Inquiry in Queensland, above n 18, 64.