In Episode Six of our Race in Society series, Associate Professor Alana Lentin and I focus on Policing the Quarantine. Our racially-driven criminal justice system has been an ongoing feature of colonialism, from invasion in 1788, to the present day. Since the 1991 Royal Commission into Aboriginal deaths in custody, over 434 Aboriginal and Torres Strait Islander People have died in police custody. Policing powers have been extended throughout the pandemic, and disproportionately target Aboriginal and Torres Strait Islander people and other people of colour. This includes the administration of fines, lockdowns, and curfews.
To help us to think through these topics, we are joined by three panellists. First, Roxanne Moore, Executive Officer of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), discusses police accountability. Second, Professor Megan Davis, Pro Vice-Chancellor Indigenous at the University of New South Wales and Professor of Law, provides insight on constitutional and human rights during the pandemic. Dr Vicki Sentas, Senior Lecturer in the Faculty of Law at the University of New South Wales, discusses racial profiling and police reform.
Roxanne Moore on lack of police accountability
Roxanne Moore is a Noongar woman and human rights lawyer from Margaret River in Western Australia. Her organisation, NATSILS, represents all the Aboriginal community controlled legal services in Australia. NATSILS has been campaigning for Aboriginal rights throughout COVID-19. She notes Aboriginal health organisations and communities have been largely successful in keeping COVID out of First Nations communities during the first and second waves of 2020-2021. She cautions, however, that “the impacts of COVID-19 on our communities is really going to be felt for many years to come.” She notes that the impact of racism is driving unequal policing during the pandemic.
“Over 400 academics and lawyers have repeatedly called for governments to responsibly release First Nations people and those most at risk from prison to reduce the prison population as the most effective way of managing the risk of COVID-19 outbreaks in prisons. And our people make up 28% of the prison population, even though we’re only 2% of the total population. And we are more vulnerable to contracting and dying from COVID-19 due to chronic health conditions, another legacy of colonisation. And we see that there is this real risk of potential Black deaths in custody from COVID-19. And despite all of this, you know, instead of de-carceration, governments have opted for hard lockdown as their responses.”
Roxanne describes how Aboriginal kids in Victoria and Queensland prisons have been subject to isolation for weeks, while other First Nations people in prison have been cut off from their families and other community support. NATSILS have called for a moratorium on executing warrants on low level offences, focusing on diversion, to keep people out of prison. She notes police have been given unprecedented and emergency powers during the pandemic, and that the army has been deployed into some communities. Communication of these powers has been opaque. She notes that Aboriginal people in Tennant Creek have complained to Amnesty International because police have shown up to overcrowded houses, using COVID-19 regulations to disperse or fine Aboriginal people. Essentially, police are punishing people for inequality in housing.
Roxanne also cites the hard lockdown of 3,000 people in public housing estates in North Melbourne and Flemington in Victoria as another form of unjust imprisonment (as residents were not allowed to leave their apartments).
Roxanne also discusses how New South Wales police data shows affluent areas like Woollahra and Northern beaches received only 1.8% of COVID-19 fines, even though they make up 15% of COVID-19 infections.
NATSILS calls for an independent oversight of these police powers by Aboriginal people, a comprehensive review of COVID-19 police responses, and an independent analysis of the police stop and search data during the pandemic.
Megan Davis is a Cobble Cobble woman and Acting Commissioner of the NSW Land and Environment Court. She was recently appointed the Balnaves Chair in Constitutional Law. Professor Davis currently serves as a United Nations expert with the UN Human Rights Council’s Expert Mechanism on the rights of Indigenous peoples based in UN Geneva. She explains that “the pandemic has really just amplified and highlighted the fact that we have very poor human rights protections in Australia.” She shows most Australians live quite a peaceful existence and, as a result, many people don’t understand our constitution.
Megan describes that Australian has weak common law rights and protected human rights. Additionally, we have weak statutory rights because of parliamentary sovereignty. While civil society groups and lawyers have lobbied for a Charter of Rights or a Bill of Rights, this has not been successful. Australia therefore cannot be compared to other nations, like the United States of America.
“The treatment of Aboriginal people by the police is very racialised… our constitution is imbued by that same racial lens. There’s all sorts of complexities as to why most Aboriginal and Torres Strait People don’t want the race power in the constitution touched. But it is important for people to know that that power exists for the Commonwealth to pass racially discriminatory laws that have an adverse or detrimental impact upon Aboriginal people and singles out Aboriginal people for different treatment. That’s unheard of, in all of the world.”
Megan says that the most recent constitutional reform process, seeking a constitutional voice, to compel the state to have Aboriginal people at the policy-making table. The two key issues of those constitutional dialogues are the incarceration rate, and the rate of child removals.
Dr Vicki Sentas teaches in criminal law, criminology and policing and coordinates the Police Powers Clinic, an experiential learning course, in partnership with Redfern Legal Centre. In 2017, Vicki published a report on a secretive list that’s held by the New South Wales police, which targets Aboriginal people for increased police surveillance. In 2017, she co-authored a study showing strip searches by New South Wales Police had increased by 46.8% within a four year period between 2014 and 2018. This similarly targets young Aboriginal people, even when they don’t have a criminal record. This year, it seems that social distancing fines are being similarly unevenly policed. Vicki says: ‘It’s always been in the state’s interest to hide the operation and effect of its police forces.’
Vicki says some of the mechanisms that make police data hard to get is needing a freedom of information application to police. Police often charge hundreds, if not thousands, of dollars for that data. Even if you get the data, the information is incomplete.
Vicki explains that data are important because people of colour and First Nations are not believed when they experience police violence and abuse of power. Other nations, such as the UK, have compulsory quarterly police reports on ethnicity data.
Vicki says the pandemic has amplified everyday policing, through COVID fines, unlawful stop and search, and move on directions when people are in public spaces, even if they have a reasonable excuse. We only know some of the racialised policing processes due to FOI requests of journalists and other advocates.
However, Vicki notes we don’t have overall demographic statistics for who’s being policed or how. This impacts police accountability.
Thinking critically about racialised policing
We asked our guests for tips on how to think critically about racialised policing.
Roxanne said it’s important to question media and politician portrayals, such as depictions of the Black Lives Matter protest organisers during the pandemic.
“It’s also about understanding, you know, if these laws are meant to apply to everyone equally, well, why is it then been impacting on different communities and mob differently? And how has colonisation impacted on that?”
Roxanne urges us to following Aboriginal people and other people of colour on social media, for their critiques of the pandemic. She suggests
- Osman Faruqi
- Amy McQuire
- Madeline Hayman-Reber
- Rachael Hocking
- Megan Davis
- Alison Whittaker
- Teela Reid
- Vanessa Turnbull-Roberts
- Meriki Onus
- Change the Record
Megan reiterates the need to read Aboriginal people’s writing about Aboriginal issues, especially to understand our collective history.
“Many Australians don’t even understand what the protection era was. I suspect they think it was an era of protecting Aboriginal people. But we know that once the protection infrastructure was dismantled from state to state virtually overnight, the protectors became police, right? So the rule of law goes from this kind of system of subjugation to this kind of principle or legal equality and this kind of you know concept of the rule of law that applies to all Australians. Except, you know, we wake up with all the scars of what that oppression and subjugation looks like. And the police force has never really changed its kind of mindset when it thinks about who we are as peoples.”
She describes how she used regional reports when she participated in the Commission of Inquiry into Queensland youth detention. “People need to know that police don’t have an unproblematised kind of attitude towards our people. They carry just as much baggage as we do, but in a different way.”
Vicki encourages us to move away from thinking of individual racist police officers. The issue is not lack of cultural awareness training. The issue is institutional racism in policing.
“We need to think about why offensive language and public drunkenness is still on the statutes in many states. We need to look at the economy of policing, why the police have key performance indicators (KPIs) for stop and search. And why does that lead to Aboriginal and Torres Strait Islander People being, you know, on the hit list for KPIs.”
Allam, L., C. Wahlquist, J. Banister, and M. Herbert (2020) Deaths Inside. Syndey: The Guardian.
Davis, M. (2018) ‘The Long Road to Uluru,’ Griffith Review, 60. Online resource last accessed 9 January 2022: https://www.griffithreview.com/articles/long-road-uluru-walking-together-truth-before-justice-megan-davis/
Grewcock, M and V. Sentas (2019) Rethinking Strip Searches by NSW Police. Sydney: UNSW Law.
Sentas, V. and C. Pandolfni (2017) Policing Young People in NSW. Sydney: Police Justice Coalition.
Truu, M. (2020) ‘Hundreds of Experts Sign Open Letter Calling for Release of Prisoners to Avoid Coronavirus Deaths,’ SBS News, 08 April. Online resource.