Indigenous Self-Determination and Crime: Out of Tune and Out of Time
Processes of Australian colonisation deeply entrenched imperial power. They proceeded from the British landing in now-called New South Wales in 1788, through to the 1920s when northern Australia was conquered. The absolute supremacy of imperial culture was projected through a prevailing ideology of terra nullius, which maintained that Australia was uninhabited prior to British occupation. This provided a rationale for dispossessing Indigenous people of their land and sovereignty. However, that was just the beginning.
The penetration of colonisation continued well into the twentieth century.

In the mid-twentieth century when Aboriginal rights movements gained political credence and a process of redress had begun, it was not a straightforward path to self-determination. In contrast to the relentless march of colonisation, developments in Indigenous rights were defined by incremental junctures. In the early 1960s, Indigenous people were granted citizenship rights, including the right to vote in national elections. In 1967, 90.7% of Australians voted in a referendum to remove constitutional discrimination against Indigenous people. These constitutional changes, as well as escalating protests over Indigenous rights, paved the way for the Federal government to grant Aboriginal land rights in 1975. The rights movements provided for greater inclusion of Indigenous people in dominant Australian institutions. The next step was for Indigenous people to reclaim their own institutions and sovereignty.
This phase was classified as ‘self-determination’ and gained credibility in the early 1990s, becoming the Labor government’s official Indigenous policy.

The crescendo for the Indigenous rights movement in the twentieth century was the 1992 High Court decision of Mabo v Queensland (No 2) (1992) 175 CLR 1. The judiciary discarded the myth of terra nullius and recognised native title for the first time in Australian history. The government responded with legislation that regulated native title claims. The Regional Councils were responsible for pursuing these claims and bringing together Indigenous claimants. These claims provide rights to use land where Indigenous people have ongoing connection to country. They are a separate species to land rights where land is transferred to Indigenous people.
These junctures for Indigenous rights were beginning rather than ending points for self-determination. There are ongoing calls for greater changes through specific constitutional rights for Indigenous people, more resources for impoverished Indigenous communities and Indigenous sovereignty.

Despite these momentous junctures, Indigenous rights remain vulnerable to the exigencies of governments and shifts in public opinion. Indigenous rights can be stripped away without enormous resistance or legal redress. Unlike the sacrosanct powers of the postcolonial government, which were enshrined in the 1901 Constitution, Indigenous institutions have not been afforded the same protection.

Since 1996, the conservative Federal government has chipped away at progress towards self-determination. It has pursued a policy of ‘practical reconciliation’, which has little in common with Reconciliation and a lot in common with government cost cutting. The Federal government has embarked on a program of replacing Indigenous-specific services with mainstream services, such as health, employment programs, legal services and education. This has not only reduces the cultural sensitivity of services, but has taken service delivery from Indigenous control. In a further policy shift, welfare for Indigenous people has been redefined in terms of ‘mutual obligation’.

The sentiments against Indigenous self-determination have been inflamed in recent months.

Communities need to be empowered rather than alienated from the criminal justice system. Given that the criminal process has historically undermined Indigenous culture, giving communities ownership and responsibility for polices is essential for their effectiveness. This approach to self-determination is paramount to the tuning of Indigenous and non-Indigenous societies at community and national levels.
Larissa Behrendt, ‘No quick fix’, Australian Policy Online, 1 June 2006, Available at: www.apo.org.au/webboard/results.chtml
Chris Cunneen, ‘Preventing violence against indigenous women through programs which target men’, University Of New South Wales Law Journal 25 (1) 2002: 242-250
Pat Dodson and Noel Pearson, ‘The Dangers of Mutual Obligation’, The Age (Melbourne), 15 December 2004. Available at: www.theage.com.au/news/Opinion/The-dangers-of-mutual-obligation/2004/12/14/1102787075763.html