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Indigenous Self-Determination and Crime: Out of Tune and Out of Time

Thalia Anthony


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.

The state’s suppression of Indigenous culture became more subtle, but it was just as powerful. Twentieth century concepts of Indigenous primitivism justified the denial of Indigenous citizenship rights; the removal of Indigenous children from their families and into state institutions, and the non-payment of wages to Indigenous workers in northern Australia. The result was a ‘dual alienation’ from mainstream Australian society and Indigenous customary life and culture.

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.

While sovereignty was not countenanced by the Federal government, the trend indicated that Indigenous self-determination and government policy was in rhythm. At the heart of this policy was the sponsorship of local and national Indigenous organisations and land councils. In 1990, the national Indigenous representative body, the Aboriginal and Torres Strait Islander Commission, was formed to contribute to Indigenous policy and manage Indigenous services. It had a local role through its 35 Regional Councils across Australia and an international role through the United Nations Permanent Forum of Indigenous People.


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.

There is also a national movement to harmonise Indigenous and non-Indigenous societies through ‘Reconciliation’. This would involve mainstream institutions taking responsibility for past injustices and supporting the healing process, as well as allowing Indigenous people to freely express their own culture. Support for this movement was apparent in May 2000 when 250,000 Australians participated in the Reconciliation walk across Sydney Habour Bridge.

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.

The effect is that when governments change or moral outrage is stirred – such as through the sensational media reports of Mabo and its consequences for land holders – legislation will override Indigenous rights. Indeed, this is what happened in 1998 when legislation diminished native title rights in favour of pastoralists.


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’.

This means Aborigines must comply with government standards of behaviour (such as child rearing and schooling) in order to receive basic welfare provisions. It can be seen as a form of ‘social engineering’. Perhaps the most detrimental affront to self-determination came in 2004 when the government abolished the Aboriginal and Torres Strait Islander Commission (ATSIC) and its Regional Councils. Indigenous leader Jackie Huggins declared that self-determination cannot be pursued ‘without instruments of governance’.

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

The Federal Aboriginal Affairs Minister, Mal Brough, has identified the crime problem in impoverished Indigenous communities as requiring a ‘law and order’ response, which involves sending the Army in to manage communities and undermining any role for customary law. The ‘law and order’ approach reflects the distrust of Indigenous people within ruling government circles and sets back the process of self-determination. It is contrary to a number of Australian studies that have shown the involvement of Indigenous people and communities in criminal justice – such as Circle Sentencing and programs that reintegrate the offender into the community – reduce crime levels.

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