The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody

Date01 September 2006
DOIhttp://doi.org/10.1111/j.1467-6478.2006.00366.x
AuthorElena Marchetti
Publication Date01 September 2006
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 3, SEPTEMBER 2006
ISSN: 0263-323X, pp. 451±74
The Deep Colonizing Practices of the Australian Royal
Commission into Aboriginal Deaths in Custody
Elena Marchetti*
This paper demonstrates how legal processes utilized by institutions
established to reverse the effects of colonization, can continue the coloni-
zing agenda. The processes reflect `deep' rather than `de-'colonizing
practices. The Australian Royal Commission into Aboriginal Deaths in
Custody (RCIADIC), which tabled its National Report over a decade ago
and which was heralded as the inquiry which would transform race
politics for Indigenous Australians, is used as an example of a
`decolonizing' institution that inadvertently adopted deep colonizing
practices. Using data from interviews with 48 Indigenous and non-
Indigenous people who were associated with the RCIADIC, this paper
expands Deborah Bird Rose's theoretical construct of `deep colonizing
practices' and illustrates how difficult it is to shift hegemonic legal
processes and beliefs, despite intentions to empower and embrace
Indigenous views.
INTRODUCTION
The underlying premise of critical legal scholarship
1
is the notion that law
and legal systems are not `benign, neutral and autonomous . . .'.
2
Instead,
451
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Law School, Griffith University, Nathan Campus, GU Nathan, 4111,
Australia
e.marchetti@griffith.edu.au
I would like to sincerely thank all those who participated in this research by generously
giving their time and sharing memories of their experiences of working for the RCIADIC. I
would also like to express my deepest regret and sympathy for the families and friends of
the Australian Indigenous people who died, and are still dying, in custody. The feedback
and comments provided by the anonymous reviewers of the JLS, Professor Phil Scraton,
Professor Kathleen Daly, and Dr Nick James were extremely helpful and much appreciated.
1 The use of the term critical legal scholarship in this paper is used in a general sense
and is not intended to refer to the Critical Legal Scholarship (CLS) movement.
2 G.J. Simpson and H. Charlesworth, `Objecting to Objectivity: The Radical Challenge
to Legal Liberalism' in Thinking About Law: Perspectives on the History, Philosophy
and Sociology of Law, eds. R. Hunter, R. Ingleby, and R. Johnstone (1995) 86.
critical legal scholars claim law and legal systems are institutions of power
that discriminate and oppress on the basis of various categories including
gender, class, race, sexuality, and age. As Gerry J. Simpson and Hilary
Charlesworth explain, the underlying liberal legal ideology:
argues that law is above politics and merely resolves the competing claims of
equal members of society . . . [C]ritical schools [instead] attempt to demonstrate
the highly contingent nature of these claims and . . . they each share, to varying
degrees, a radical scepticism about liberal claims to objectivity and universalism.
3
Liberal legal ideology permeates not only the law but also the institutions
that administer the law.
4
The presence of such an ideology propagates the
belief that institutionalized policies and practices are free from structural
determinants such as patriarchy, advanced capitalism, neo-colonialism, and
adultism. This paper uses the ideas espoused by critical legal scholars that
have identified how legal processes (rather than legal rules) continue to
oppress and marginalize colonized others.
5
In particular, this paper considers
how the quasi-legal processes of a royal commission that appeared inclusive
and concerned with redressing racial imbalances, continued to reiterate
colonial dynamics and influence the identity of racialized others.
Every colonized country can list its moral touchstones concerning the
redress of racial inequalities in the criminal justice system. For example, in
Canada there was a 1996 report prepared by the Royal Commission on
Aboriginal Peoples; in New Zealand there was the Closing the Gaps series of
reports prepared by Te Puni Kokiri in 1998 and 2000; in the United States of
America, a particularly informative report was prepared in 2000 by the
American Indian Development Associates, Office of Justice Programs,
Promising Practices and Strategies to Reduce Alcohol and Substance Abuse
among American Indians and Alaska Natives.
6
Although some progress in
452
3 id., pp. 86±7.
4 The term `liberal legal ideology' describes an ideology which dominates the
contemporary Western system of law and is often equated with `liberalism'. There is
no single form of liberalism and a precise definition is therefore difficult to elaborate.
Nevertheless, liberal ideals are typically present in capitalist economies that subscribe
to a political democracy; these ideals include the principles of liberty, individualism,
and equality. Of particular relevance is the manner in which liberal legal systems
espouse formalistic notions of equality. As critical legal scholarship generally insists,
the liberal notion of equality contains implicit race (and other forms of) biases.
5 The `colonized other', in this paper, refers to people who have been forced through
colonization to experience their `being through others', or put more specifically,
people who are `black in relation to the white [person]': F. Fanon, Black Skin, White
Masks (1967) 109.
6L.Capobianco and M. Shaw, Crime Prevention and Indigenous Communities: Current
International Strategies and Programs (2003) at
intl.org/publications/pub_1_1.pdf>, viewed 14 December 2004; C. Cunneen, The
Impact of Crime Prevention on Aboriginal Communities (2001) at
www.lawlink.nsw.gov.au/ajac.nsf/51bf77d7793e43184a2565e800280584/
5456562c82f0e90aca256d190012c3ed/$FILE/Crime%20Prevention%20in%20
Aboriginal%20Communities.pdf>, viewed 14 December 2004.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

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