Law, love and being in relation

ABSTRACT

This article takes up Agozino's call for love. Yet this call is not a straightforward one. In response, I press for an appreciation of love which avoids collapsing love into 'protection', engaging instead with the Aboriginal World View described by Kombumerri and Wakka Wakka woman and scholar, Mary Graham, as a form of conduct, reflection and a practice in listening. Through two quite distinct stories offered by young people in their encounters with Australia's criminal justice system, I explore the ethics of listening and respectful relations in social and institutional settings. While the first story reveals the denial of colonial violence accompanying protectionist policies for the ‘care' of Indigenous communities, the second story shows how such patterns of denial underpin western ‘justice' systems, including for settler peoples. Responding to Agozino’s call requires that we examine the ethical act of listening and reflect on the repercussions of the failure to listen.

KEYWORDS:

• Decolonization
• love
• denial
• youth detention
• Aboriginal Worldview
• Agozino

Introduction

In 2007 the former Liberal Prime Minister of Australia, John Howard, announced a raft of new laws in response to what the Federal Government deemed a failure by Australia’s Northern Territory officials (and government) to adequately address the findings of the ‘Little Children are Sacred’ Report (Wild & Anderson, 2007) into child abuse and neglect in some Aboriginal communities there.¹ These Federal laws intervened in Territory politics, resulted in the suspension of Australia’s Racial Discrimination Act and breached the International Convention on the Elimination of all forms of Racial Discrimination. These breaches were defended as a necessary response to crisis, that is, to the declaration of a ‘national’ state of emergency in Aboriginal Communities in the Northern Territory. These laws were put aside, Howard claimed, in order to affirm children’s rights to love and protection. Howard’s (2007) press statement to announce the ‘emergency’ appealed to the vulnerability of children:

In the end the duty of care to the young of this country is paramount and nobody who has any acquaintance with that report could be other than appalled by its contents, appalled by what it reveals, appalled by the cumulative neglect of many over a long period of time and frustrated in the extreme at the inability of governments to come to terms with an effective response to deal with this problem. We are dealing with children of the tenderest age who’ve been exposed to the most terrible abuse from the time of their birth virtually and any semblance of maintaining the innocence of childhood is a myth in so many of these communities and we feel very strongly that action of this kind is needed; it is interventionist, it does push aside the role of the Territory to some degree, I accept that, but what matters more: the constitutional niceties or the care and protection of young children? We believe the latter is overwhelmingly more important. Giannacopoulos (2009, p. 332)

This statement reveals Howard’s blindness to the colonial harms that continue to be experienced by Indigenous communities. It is profoundly ironic given the intergenerational trauma undergone as a result of a long history of Indigenous children being stolen from their families by government agencies from the late 1800s and into the twentieth century, in pursuit of the assimilation of ‘mixed race’ children.² Assimilationist policies characterizing settler colonization reveal it as distinct from other forms of colonization: in settler colonial formations, the settlers always remain (Wolfe, 2006) achieving settlement not as an act of migration, but of conquest (Veracini, 2010, p. 3). Accordingly, it cannot be understood as a discrete historical event and nor is it experienced as such. Rather, it embodies a structure of unequal relations between settlers and First Nations peoples that continues to underpin contemporary sovereignty in Australia, and which is constituted through a governing logic of the elimination of First Nations peoples (Wolfe, 2006), including through assimilationist policies. The statement made by Howard is a denial of colonial violence and a refusal to listen to the voices of First Nations peoples.

Adopting a position of denial was key to Howards’ persistent rejections of calls for a National Apology for the harm caused by policies and laws of child removal, despite declaring his concern for the welfare of vulnerable children in Aboriginal communities in 2007. His words position the ‘Northern Territory National Emergency Response’ – (NTER) as a policy beyond dispute amongst those who have the interests (‘love’) of children at heart, in order to address the ‘cumulative neglect’ of those of the ‘tenderest age’, subjected to the most horrific abuse ‘virtually from birth.’ Howard’s framing techniques prevent these claims being disputed or denied. In the foreclosure of any space for reflection and listening, he swiftly and neatly dispenses with specific elements of Australia’s Constitution with disregard for the jurisdictional authority to do so. The cumulative and longstanding harm said to be done to children by their own communities is privileged over the cumulative, structural harm of colonization. The only ‘legitimate’ response is to agree, even while Howard’s smooth dismissal of ‘constitutional niceties’ lies in stark contrast to the Government’s refusal to address the unlawful foundations of its constitution in a land that was never ceded by First Nations peoples (Giannacopoulos, 2009, p. 333).

The laws comprising the NTER also resulted in forms of control and land acquisition that have far exceeded the stated aims of ‘protecting children’. They included: an end to Community Development Employment Programmes which provided valuable employment in these communities; the introduction of conditional welfare payments, including for those on aged pensions; the end to the recognition of cultural practices in the Commonwealth Crimes Act in assessing the gravity of criminal offences; and the take-over and management of Aboriginal communities through the compulsory acquisition of their land and 5-year leases, all in addition to an increase in policing of communities and sanctions for families where children had unexplained absences from school (Northern Territory National Emergency Response Act 2007, Cth, NTER). The acquisition of land has been described as motivated by a desire to acquire mining and exploration rights and pursue economic objectives (Howard-Wagner, in Anthony, 2018, p. 263). There was no consultation with communities subjected to the policies introduced as part of the NTER (Behrendt, Watson, McCausland, & Vivian, 2008). Howard fails to reflect on the violence to children done in the name of the intervention enacted under the terms of the NTER. In an immediate sense, this included mandating invasive medical checks on children for STDs and the removal of children from their families.

Notwithstanding some changes – with the NTER later succeeded by ‘The Stronger Futures’ policy under the Stronger Futures in the Northern Territory Act 2012 (Cth) – the central elements remain in place and the period of the intervention has since been extended until 2022, fifteen years after the declaration of the ‘emergency’, a term suggesting a temporary state of affairs (Parliamentary Joint Committee on Human Rights, 2016). It has been widely described as a racialized policy which has had a devastating impact on Aboriginal communities, including through undermining family relationships and the role of Elders as leaders (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2016, pp. 4, 188, 2017b, pp. 143, 164). The effect has been to further entrench the harms of colonial structures of dispossession and violence said to have ended with the High Court declaring that the doctrine of terra nullius was a legal fiction (Giannacopoulos, 2011; Moreton Robinson, 2007; Watson, 2014). Between 2008 and 2013, the Royal Commission was advised that there has been a fifty per cent increase in the number of Indigenous children in youth imprisonment (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2016, p. 818). Aboriginal people have said that they have experienced the NTER not as a system of protection but as a system of removal (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2016, p. 198).

In July 2016, less than ten years after the Federal Government intervened to ‘protect’ children, the Australian public was presented with the graphic video footage of abuse and torture of Aboriginal children in the Don Dale youth detention centre in the Northern Territory (ABC, 2016). In actuality this was an adult prison unfit to hold children. It showed children being gassed with a toxic chemical banned by the international law on the use of chemical weapons, stripped of clothing and at other times strapped to a ‘restraint chair’ with a spit hood over their head (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017a, pp. 54–55). Solitary confinement was regularly used as a secondary form of punishment, with children held in isolation units for up to 23 hours a day, for up to 39 days, without being told when they would be released, and without ‘sunlight, exercise or human contact’ (Anthony, 2018, p. 52). The children were systematically subjected to abuse, degrading and humiliating treatment, denied food and water and access to toilets as a form of punishment (Royal Commission into the Care and Protection of Children in the Northern Territory, 2016, pp. 679–685). Public shock at the investigative report, aired by the Australian Broadcasting Commission on national television on the treatment of children at the Don Dale Youth Detention Centre, prompted immediate calls for a Royal Commission.

Drawing on the statements made by Dylan Voller who was brutalized and traumatized by the treatment he received as a child in Don Dale youth detention centre – and those of a young woman who was subjected to sexual assault as a minor, I sketch out alternative responses which can uncouple ‘justice’ from control and more closely align it with listening and meeting with to argue that this reflects Mary Graham’s notion of an ‘Aboriginal World View’ in which love and law are understood relationally, as a being in relation which is experienced concretely. As Agozino has proposed and as I contend here, an ethic of love must be also embraced by criminologists in order to disrupt the historical violences of criminology which resonate in the present. At the same time, responding to this call demands careful attention to what we mean by ‘love’ and what justice which comes from love might require. I begin here with Biko Agozino’s a call for love.

A call for love

Biko Agozino (2019) proposes that for the criminal justice system to be disentangled from colonial violence, it needs to be torn away from its obsession with control and the perpetuation of racialized, classed and gendered discriminatory practices and policies. What is missing, he argues, is the ‘discourse of love’ (2019, p. 1) an ethic which is found wanting in the institutions of the state. Love is crucial for the task of decolonization, although love on its own he claims, is not enough. Law must be founded on love, and where this is wanting, it ‘deserves to be erased through abolition or decolonization’ (2019, p. 1) The obsession with control over love which is evident in colonial criminal justice systems as well as by criminologists is, Agozino observes, ‘puzzling’ (2019, p. 4). ‘Without love, the law will be empty of justice and be simply domination and oppression’ (Agozino, 2005, p. 6). The significance of this is clear in light of the many calls for reparations and restorative justice in a settler colonial society. Punitive justice is a ‘counter-productive way to seek justice’ (Agozino, 2019, p. 5) as it denies the possibility of relation.

Yet Hobbes’ view of human nature and accompanying theories of the foundations of society (Agozino, 2003, p. 93) remain as a legacy that continue to permeate contemporary ‘justice’ to the extent that to speak of love, difference and kindness in large-scale societies, and even more so, within institutional life appears odd and surprising. While there has been longstanding criticism of the privileging of Western knowledge in the academy (Nakata, 2007; Smith, 2001; Watson, 2014) criminology has been late to the table. Notably, when engaging with the over-representation of indigenous people in Australian prisons, it has continued to draw on a very ‘narrow set of assumptions about individual offending, and on theoretical and conceptual frameworks that pathologise Indigenous peoples and problematise their cultural beliefs and practices’ (Cunneen and Tauri, 2016, p. 1).

Agozino provokes us to think about love as a social possibility beyond the romantic and beyond ‘abusive self-love’, asking why it is that criminologists reflect so rarely on love? (2019, pp. 1, 4) Yet approaching justice in this way requires a relationality and an ethical framework which is grounded and embodied (Watson, 2014). A starting point also requires the recognition of past harms and a willingness to embrace reparative justice (Agozino, 2019; Balint, Evans, & McMillan, 2014). This paper does not claim to answer Agozino’s call for love definitively, but it proposes new ways of understanding what ‘love’ might mean and how it might function in criminal justice contexts through a focus on listening and the effects of denial of injustice. In this respect, it asks that the call for love goes beyond the general call made by Agozino and instead attends to specific possibilities for love.

What kind of justice? Youth detention in the Northern Territory

The Northern Territory Emergency Response has had a profound, adverse impact on Indigenous children and their communities. This belies the declaration by former Prime Minister Howard that he was deeply concerned about the welfare of children. It has led to higher rates of child removal in Aboriginal communities, marking a persistent increase in the number of children in youth detention and in the ‘child protection’ system Australian Institute of Health and Welfare (2018). Many families were forced to move to larger settlements and towns, resulting in a loss of connection to their land, which ‘caused Indigenous young people to be placed within the carceral remit of the criminal justice and child protection systems, where they have been pushed into white homes, residential facilities and youth prisons’ (Anthony, 2017, p. 263). The experience of these children in child protection and youth detention has been one of racialized violence and abuse, separation from family and community and lasting trauma. Child ‘protection’ is not love: it emerges not out of relationality, but out of control. It channels children from child ‘protection’, into youth detention, and adult prison, a pathway which has been documented by the Australian Law Reform Commission (2017). Observing this, Russell Goldflam, from the Northern Territory Legal Aid Commission, reflected in his witness statement to the Royal Commission (2016, p. 851) on the link between ‘care’ and imprisonment of children:

I can’t offer a view as to whether or not being placed in care makes you more likely to commit offences, or committing offences makes you more likely to be placed in care, or both. It’s complicated. But there’s clearly a correlation between being placed in care and committing offences.

Located in Berrimah, east of the township of Darwin, Australia, the Don Dale centre is a maximum-security facility which detains children from the ages of 10 to 16. The on-going unrest and mistreatment had been known to the authorities for a number of years, with one child committing suicide while incarcerated there in 2000, a death which has been directly attributed to the punitive culture within the Northern Territory (Georgatos, 2016; Howe, 2001). This punitive culture manifested in the mandatory sentencing of this boy who began to exhibit worrying behaviours soon after his detention. He had lost both his parents some time before and was suicidal. Evidence of his behavioural tendencies was not recorded at the centre (Howe, 2001, pp. 376–377), and there was no awareness by staff that he could have been admitted to a diversionary programme, rather than being incarcerated.

Yet it was the graphic footage, many years later, of boys being tear-gassed, hooded, shackled and confined for prolonged periods without water and toilet access, which generated a public outcry. The Royal Commission into the Protection and Detention of Children in the Northern Territory was hastily convened by the Australian Government to inquire into the treatment of children across youth detention facilities in the Northern Territory, to examine whether or not such treatment was lawful, or inconsistent with human rights, and to inquire into what oversight mechanisms existed to ‘prevent inappropriate treatment’ including whether there were ‘deficiencies in the organisational culture, structure or management’ of the Centre (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017b, pp. 53–55). Given that the centre was designed as an adult prison, with conditions described as ‘austere’ and unfit for children, one of the first recommendations of the Commission was that the centre be closed. Two years later it remained open. Plans are now underway to build a new detention centre, with improved facilities and design. However, the building will be constructed next to the old, adult prison, a move that the Royal Commission advised against (Breen & Vivian, 2019).

The racialized dimensions of youth detention in the Northern Territory of Australia are marked by the composition of young people who are incarcerated there: Aboriginal children typically have comprised the total population in the youth ‘justice’ system in the Northern Territory. However, the brutality uncovered by the media report on the events at Don Dale is not limited to northern Australia: there is extensive evidence of abuse throughout the youth ‘justice’ system in Australia, especially of young Aboriginal people (Davidson, 2017; Koorie Youth Council, 2018). Disturbingly, what is surprising is not the degree of violence inflicted on children in Don Dale, nor the continuation of racialized harms after the Royal Commission, but the possibility that the Australian public might be shocked by this. This ‘shock’ is the effect of continued denial about the violence produced by the structural foundations of settler colonialism.

The recurrence of violence in Don Dale in 2018, two years after the Royal Commission began its first hearings, and in other sites across Australia, make clear that the events televised in 2016 were not exceptional (Anthony, 2017): they are woven into the fabric of colonial structures which persist well past the ‘moment’ of colonization (Wolfe, 2006) and yet continue to be denied. Rather than comprising ‘an extraordinary deviation from normal human practices in and out of detention’ (Anthony, 2017, p. 43) which indicated the failure of the system, the brutality and violence against children at the Don Dale Youth Detention Centre, are produced by and part of a continuum of colonial violence (Anthony, 2017). These practices are symptomatic of a culture founded upon a Hobbesian obsession with control and security over freedom and love between individuals (Agozino, 2003, p. 93). While the violence reported in 2016, and again in 2018 has been attributed to continuing poor working practices and the unsuitability of the centre for young people (Dunlop, 2018) such institutional practices testifies to the ongoing structural racism in this country (Anthony, 2018; Cuneen & Tauri, 2016; Giannacopoulos, 2011; Watson, 2014).

Like many other Aboriginal children, especially in the Northern Territory, Dylan Voller’s treatment also reveals the patterns of ‘systemic criminalisation and incarceration’ (McCausland & Baldry, 2019, p. 291). Given the high rates of youth detention for amongst Indigenous in the Northern Territory (and elsewhere) the introduction of a diversionary model – providing alternative options to detention for children – and of therapeutic models of justice, were designed to ‘provide a more culturally sensitive method of responding to offending by Indigenous youth’ (Cunneen and Tauri, 2016, p. 74). But the exposure to most elements of the ‘justice’ system by Indigenous children tends to reproduce rather than replace a punitive model, while distracting attention away from the source of harm for these children. For example, studies have shown that Indigenous young people are much less likely than non-Indigenous youth to enjoy the benefits of these interventions (Cunneen and Tauri, 2016, p. 74). Turning to models like this rest on what Maria Giannacopoulos has called nomophilia, the blind love of the law, marked by the belief that liberal values of fairness and equality are a guarantee of freedom from racialized, discriminatory practices (Giannacopoulos, 2011). In this vein, the therapeutic justice model remains entangled with colonial structures and thinking, exemplifying the persistence of violence in what appears to be a preferable alternative to imprisonment while Aboriginal children also find it more difficult to access such programmes, leading to greater likelihood of imprisonment (McCausland & Baldry, 2019, p. 295). As it is centred around the notion of individual responsibility, a failure to comply with justice orders can be ‘considered a failure of the individual rather than a result of systemic factors, ill-conceived program design or punitive administration’ (McCausland & Baldry, 2019, p. 296) generating similar cycles of incarceration as those experienced under a punitive criminal justice model. It also rests on a presumption that the individual needs ‘fixing’ rather than addressing societal structures that generate this harm in the first place.

The individualized approach to ‘justice’ in Australian settler colonial society is a central source of the persistence of criminalizing forms of control: there is an on-going refusal to acknowledge that the harms experienced, by children in the criminal ‘justice’ system, for example, are the product of the structural foundations of that system. As an illustration of this, Dylan Voller had attended five different schools by the age of nine, and demonstrated behavioural concerns that manifested in violence, due to ‘undiagnosed trauma’ (McCausland & Baldry, 2019, p. 294). His mother reported him to police after one such violent incident in the hope that he would get help, not expecting that this would subject him to prolonged periods in, and then out of detention and subjected to abuse in the system (McCausland & Baldry, 2019, p. 291). He failed to receive the therapeutic support his mother expected when she called the police. Instead, Voller recounts the experience of being detained and stripped of clothing and confined to a cell, at a young age:

I can tell you from experience that being a small child getting stripped like that does serious damage. I am still living with the mental health consequences of the damage. (Voller, 2018)

The report into events at Don Dale in the Northern Territory suggested that the treatment of children (according to official witnesses) were largely consistent with management practices and directions, even when this was the outcome of limited resources which staff claimed had justified their use of higher levels of restraint, including the use of shackling (Anthony, 2018, pp. 47, 49). There was limited affection and empathy, with rare exceptions (Royal Commission into the Care and Protection of Children in the Northern Territory, 2016, pp. 686–687). These exceptions, as described by Voller, revealed interactions in which he was treated as human, as someone deserving respect and being treated with dignity. There rare moments of affection are best understood as something more profound than empathy and compassion: they revealed the recognition of Voller as a person in which he existed in relation with others. In contrast with the abusive and neglected treatment he received from many of the guards, such exceptional examples of conduct by guards during one of his custodial transfers and while receiving visits from his family to Don Dale, shine a light on the possibilities that remain for respectful conduct. They are underpinned by a recognition of Voller as part of a community and as a person:

There was a few road stops, that they stopped and they just opened the side of the car and just let me sit there, because they knew – they knew I wasn’t going to run, they knew I wasn’t going to anything, and they – they had trust in me, because I’ve known them for a while, and they’ve just sat there with the door open and just had a conversation with me, and stopped at a road stop … there was a few times when my family would come in and there was certain – a couple of officers at the detention centre they would actually say hello to my mum and sister, and say hello to my little brothers and sisters, and just muck around with them and just be able to say hello, and not be rude and get to know my family when they come in, and stuff like that as well. And make – see if they wanted water or a cup of tea or need to be able to go to the toilet. Stuff like that. (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2016, p. 692)

This is a mundane yet powerful illustration of love as recognition of a person’s inherent value, of an ethical orientation which acknowledges and respects Voller not just as a child in detention, but as a person who has connections with others, and who is loved and supported by his family and community, who, in turn, deserve respect. This is an experience of ‘being in relation’, by which I mean the possibility of speaking with, of listening to each other, and being treated with respect, of engaging in ways that affirm rather than deny human dignity. A persistent testimony that was made to the Royal Commission affirmed such a need for respectful relations marked by listening and speaking with (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017b, pp. 33, 92–95).

Love as being in relation

In her contemplation on what she calls the ‘Aboriginal World View’, Wakka Wakka and Kombumerri scholar and elder, Mary Graham (2008) asks the questions: ‘Why do we live?’, how can we live together well, and support each other? In response, she isolates two central precepts as part of the Aboriginal World View: ‘Land is the Law’ and ‘You are not alone in the world’. The reflective motive is identified by Mary Graham (2008) as one in which keep asking ourselves:

how do we orient ourselves to others?

what forms of conduct do we adopt?

what are our practices?

The encounter between Western and Aboriginal law, as described by Graham, is one in which the former demands that legal relationships emerge from within the ‘framework of legal positivism’, rather than from a lawfulness arising out of the connections between place and people, and between people themselves. The systems are ‘logically opposed to each other’ she says (Graham, 2008, p. 192). One system observes and measures the world in an abstract way, and the other is fully engaged in it, with attention to the consequences of the actions taken. Howard’s inability to consider the effects of the NTER exemplifies the absence of attention to consequences, of decisions taken in the abstract and in isolation from historical and social context.

This experience of being in relation is not passive for Graham: it is a form of conduct towards each other that is reflected in the ‘practice of laws’ as an everyday habit. This is not an unthinking habit however. As Graham explains of what she terms the ‘Aboriginal worldview’, this is something Aboriginal peoples do, and develop in practice, not something that is simply talked about. It comprises an ethic of caring for land and through connection with land, an ethic of caring for each other. While western philosophy theorizes how to live ethically, Indigenous peoples have been ‘doing’ ethics, she says as a practice, over thousands of years (Watson, 2014, p. 510). As a ‘custodial ethic’, this is nurtured and developed through ‘repetitive action’ (Graham, 2008, p. 183). It gains vitality through repetition (rather than through the administrative procedures directing institutional life in a Western setting). Graham is not claiming a utopian view of Aboriginal communities but draws attention to a society which is fundamentally at odds with the individualist and anomic experience of the Western culture. This anomic and individualised culture is, argues Graham, what leads to the need for Western people to be armed ‘against loneliness and against nature itself’, and to treat land as something to be ‘conquered and owned’ (Graham, 2008, pp. 185–186).

Under a ‘custodial ethic’, the two key relationships, which must be nurtured, are those between land and people, and between people. The first relationship forms the terms of the second (Graham, 2013). Against the Cartesian dictum ‘I am because I think’ the Aboriginal view can be described as ‘I am because I am located’, in that through connection to place, I am connected with others and am not alone in the world (Graham, 2013). The custodial ethic, as Graham describes it, compels an obligation to care for land, and hence for others, which is respectful, and which generates possibilities for communities to thrive and flourish in ways which preserve a future relationship, and acknowledge those already past. The ethical question is then, a question of being in relation with others and with place. As Irene Watson, a scholar and elder from the Tanganekald, Meintangk and Boandik Nations has reflected, ‘the localised nature of Indigenous knowledge makes it an imperative that, when considering the re-centring of Indigenous ways of being, capacity-building needs to occur at the local level’ (Watson, 2014, p. 510). Developing ‘theoretical blueprints’ to provide a final answer or solution undermines the capacity for real learning, from the land and from each other and closes off possibilities rather than opening them up (Graham, 2008). As Graham goes on to reflect,

the land is the great teacher; it not only teaches us how to relate to it, but to each other; it suggests a notion of caring for something outside ourselves, something is in and of nature and that will exist for all time. (Graham, 2008, p. 183)

Attending to the praxis of love can help to undo theoretical abstractions (ethics is what we do) and ‘clear away objections to love at the institutional level’ (Agozino, 2005, p. 19). This lies in sharp contrast with the understanding of the ‘custodial’ under Australian criminal justice. Custodial experiences, under a colonial criminal justice system, have nothing to do with being in relation: they are constituted through control over land and over others, and as a consequence, are experienced in forms of confinement, exclusion and punishment. Howard’s attempt to protect children is an exercise in control rather than care, and reveals a form of domination, rather a custodial ethic. The ‘care’, which has historically been extended by various settler colonial governments, has been underlined by a possessive paternalism which contracts the space in which children and their communities can flourish. Yet when the harms that are produced by the policies of control and assimilation are revealed, the usual response is that these harms can be addressed by better procedures and policy frameworks. The fundamental orientation towards control remains in place. To return to the questions posed by Mary Graham:

how do we orient ourselves to others

what forms of conduct do we adopt?

what are our practices?

I propose that lawful conduct and an ethical orientation to the other emerges through social interactions and relations and is irreducible to written guidelines which dictate the contours of ethical behaviour and mutual respect, especially when the foundations of those relations are based on the structural violence of terra nullius. Where common law and the legislation enacted by the Australian government establishes the terms of relations between the state and its citizens, it does not establish the contours of being in relation with each other, as an experience of being and meeting with.

The failure of the laws of First Nations peoples and settlers to meet ‘well’ reveals the absence of a genuine meeting between two peoples (Dorsett & McVeigh, 2012). For Wiradjuri man and legal scholar Mark McMillan, the arrival of settlers was accompanied by their ‘unwillingness to recognize their obligation’ which ‘obscures the requirements of the relationship they created at the colonial encounter’ (Balint, Evans, McMillan, & McMillan, 2020). Achieving a meeting place of the laws is a first step towards justice in a state which was founded on the law of the colonizer: not achieving this is a manifestation of not being in relation with. A genuine meeting, as a being in relation with, requires an acknowledgement of concrete relations and a recognition that settler law is but one source of law, premised on the fiction that this land was ‘discovered’.

Aboriginal people were, however, compelled to enter this encounter with those who arrived from afar, in an attempt to enter into lawful relationship (Balint et al., 2020). The oppression imposed by settler society through this ‘encounter’ signalled a failure by the settler society to acknowledge the obligations entailed in being in relation with others, including with the laws of others. This amounted to a refusal by colonizers to acknowledge that ‘their existence is with Indigenous peoples and not over them’ (Balint et al., 2020, my emphasis). Moving forward requires, as McMillan observes

a recognition that individuals also hold the law … that we carry the law and must take this responsibility seriously, rather than viewing the law as external to us, as something divided, part of a system that is dictated from outside. In English law, the capacity to speak the law lies with the judge. Yet, we can still seek to take up a position of responsibility for the laws we have. (Balint et al., 2020)

The framing of Aboriginal peoples by settlers as violent or barbaric contradicted the actuality of deep connections based on such lawful relations and protocols (Agozino, 2003, p. 2; Graham, 2013). That Royal Commissions have been called upon to provide recommendations and advice on how human beings are treating others with respect shows how deeply embedded is the failure to respect First Nations peoples. The point at which it becomes possible to imagine that violence and abuse is acceptable, is also the point at which dispossession of land and elimination of culture was deemed possible and legitimate. The Royal Commission into the Protection and Detention of Children in the Northern Territory contained recommendations which affirmed already existing prohibitions on the use of spit hoods and on the use of restraint chairs (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017b: recommendations 13.1 and 13.2) The persistent breach of these prohibitions testifies to the minimal regard that staff have had to these prohibitions. Recommendations to close the centre and to increase staff training and expenditure with a view to providing proper care for children in custody have not resulted in the end of violence against children in youth detention because the control exercised over children in detention remains premised on a structure of racialized, discriminatory punishment: most importantly, it fails to acknowledge that the ‘problem’ of criminality is structurally produced (Agozino, 2003). Racialized control and exclusion has historically been achieved through institutional and legal practices of classification, quarantining, population management and martial law which have set a model for future law making, policies and practices (Bashford & Strange, 2003) and for selective punishment of those deemed in need of control. This was made clear in the testimony of children from Don Dale. They were classified on the basis of their imputed ‘risk’ or behavioural concerns, and clothed in distinct colours to communicate to staff the level of risk they posed (and we might ask, to whom?)

While colonial (western, liberal) law is regarded as determining the scope of rights and responsibilities we hold, these are largely abstract in form even while they are experienced concretely. The tension between the abstraction of colonial law and its material effects is revealed by the claims to ‘love’ and protection implied by Howard’s words at the beginning of this article. His claims are underpinned by a form of compassion which is replete with missionary and paternalistic overtones, in which the language of the rights of the child is invoked in order to save the child from the supposed savageness of the culture of his or her community.

That the NTER was achieved through a breach of the right to be free from racial discrimination, in favour of the rights of the child, illustrates the abstraction of Western systems. As Mutua (2002) has importantly laid bare, the machinery of human rights functions within a triptych of the savage, the saviour and the victim. Under the NTER, children occupy the space of the victim and their communities are framed as the savage from which the rescuer (the settler state) must save them. This has been historically reflected in settler colonial policies and laws which have demonstrated minimal respect and concern for children in Aboriginal families. ‘Being Aboriginal was itself reason to regard children as “neglected” … definitions of “neglect” [were] inherently biased towards seeing all Aboriginal family life as neglectful’ (cited in Human Rights Commission (1997) Bringing Them Home Report). Predominantly, community relations are governed by love, respect and the absence of any toleration of sexual assault, for example (Blagg, 2008). In testimony to the Royal Commission draws this out further, one parent of a child in ‘care’ stated:

One time they dragged [my son] out from under a sofa bed. There were six police officers. He was calling out ‘Mum, I love you. Help me’ I said ‘There’s nothing I can do, son’. Then he was yelling ‘You don’t love me. You hate me’ I sat crying, shaking and wanting to throw up. That’s when I had a recognition, sitting in the driveway that day, of what happened with our grandparents and the Stolen Generation. (Royal Commission into the Care and Protection of Children in the Northern Territory, 2017b, p. 91)

However, what children are said to be saved to, is a system of ‘protection’, ‘custody’ and ‘care’ which amounts to alienation from family and community, and eventually places them on a pathway from child protection to youth detention to prison. Each of these stages subject them to a form of state custody which operates in stark contrast to the custodial ethic avowed by Mary Graham.

An alternative response to these high rates of criminalization (as against criminality), is to be found in spaces of dialogue (Blagg, 2008, p. 50) and in recognizing the strengths which Aboriginal communities and practices offer to young men like Dylan Voller (Blagg, 2008, pp. 73, 207). This includes challenging the adversarial system of ‘justice’ and seeking out the possibilities of being in relation. In what follows, I examine two short stories which provide a concrete illustration of love to explore what this might look like.

Love as healing and being with

Former inmate of Don Dale, Dylan Voller, who was held there from the age of 10 and was one of the boys whose treatment was televised in the Four Corners report – ‘Australia’s Shame’, 16 July 2016 – appealed for care and respect for children after the news of the violence in 2018 in this place, saying:

They’re not bad kids. They’ve made terrible mistakes and they need help. They’re not getting it in that place … There’s a lot of people that love them. There’s a lot of people that support them and Australia knows that there’s still a lot of stuff happening in there. (Dunlop, 2018)

Significantly Voller has said that kids like him need to be on country, not in custody (Voller, 2018). Or to put it in other way, he is asking that children be respected through the custodial ethic, rather than through custodial punishment.

Although the reports and commentary have understandably tended to focus on the appalling treatment meted out to children in youth detention, there has been a failure to acknowledge that these children nonetheless have access to supports and have a community which loves and cares for them – as Voller affirms in his statement above – and which restore their connections with others, with land and to the custodial ethic that informs these relations. In his testimony to the Royal Commission, Voller reflected fondly on the experience of having elders from the Larrakia nation come in to Don Dale centre to engage with the children, to talk about being on country, and to conduct cultural practices with them (Royal Commission into the Care and Protection of Children in the Northern Territory, 2016, p. 686).³ He describes his experience of having elders come to visit him at Don Dale:

It was just – they just sat, sat down and told people who wanted to listen that they are free to listen. Sat down with them. Listen. (Royal Commission into the Care and Protection of Children in the Northern Territory, 2016, p. 937)

As Yolgnu Elder and grandmother of a child in care remarked to the Royal Commission into the Care and Protection of Children in the Northern Territory, 2017b, p. 95)

When kids get taken away family and children cry, cry, cry. Kids then grow up and forget their culture. Culture is the most important thing for Aborigines – for Yolgnu. We need our kids. We love our kids. That’s our future generation. Who is going to look after my culture, my land, my sacred sites? We need to take our kids to our land and teach them. They will replace us when we die. Leave our children here, they are the future for us. I thought Stolen Generation was finished, but it’s still going.

Yet the violent treatment of Aboriginal children in youth detention continues to occur because the dignity of First Nations peoples has never been affirmed or respected. When Dylan Voller gave his evidence to the Royal Commission into the Care and Protection of Children in the Northern Territory, he submitted this statement which points directly to the structural abuse and the additional forms of punishment that are generated by the criminal justice system, and not just youth detention:

Today the problem is not only youth justice and Don Dale but adult prison and the justice systems itself. One of the biggest problems we face is the fact that we are being further punished while in prison. Being sentenced by the judge to do the time for our crime is our punishment, not the continued mental and physical abuse that we continue to cop while here. On a number of occasions I’ve witnessed officers abusing and yelling at Aboriginal men in here and putting them down because they can’t speak English properly, and that’s not fair and needs to stop. As a victim and a young man I feel upset and let down by the system that these bad things were allowed to go on for so long. I really want to see these things changed so it never happens to anyone else again, and I believe that this Royal Commission make sure that young people need love and someone to talk to and not to be locked in a cell with nothing for days on end. Trust me. (Royal Commission into the Care and Protection of Children in the Northern Territory, 2016, Submission)

Voller is making a call here for children to have someone to speak with, to be in relation with, for love as being in community and in a relation with law and land. The words of Dylan Voller, who now acts as a youth advocate, is a call, or a cry for love, for other young people like him. In this call, he reflects on the difficulties for children who have breached the law, but who need love, not prison:

There are plenty of kids who are traumatised, who will act out and hurt other people. These actions are not acceptable, but the answer will never be prison. They need love. They need support, guidance, and opportunities. They come from a beautiful culture, the oldest continuing culture in the world, with so much to teach about how we can live in harmony together and with the land. But, right now, their elders have been pushed aside by a government hungry for land and power. (Voller, 2018)

This is an explicit avowal of the central place love should have in any justice system. Voller’s statements echo Mary Graham’s reflections of the central precepts of the Aboriginal Worldview: ‘The Land is the Law’ and ‘You are not alone’ in which love emerges from the connection to land, as a source of law and of being in relation.

The custodial ethic (rather than the custodial justice system) entails care for land and culture as a source of connection to elders, to family, to community. Voller is seeking out the law, but it is not the justice of criminal (colonial) law he is pursuing. It is the law of the land, the relation with land and others that might bring him into relation offer healing and assure him that he is not alone (Graham, 2008). As Russell Goldflam,⁴ a non-Indigenous witness to Royal Commission stated

there’s more than one criminal justice body of law. There’s the body of law that I know about and that we know about, and then there are traditional bodies of Indigenous law that run in Central Australia, which I don’t know about. Perhaps nobody in this room knows much about. But for many people growing up in Central Australia … [t]heir law is real to them and it operates on them.

And yet ‘we’ve gone out of our way in our system to say, “We don’t recognise your law”’ (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017a, p. 851). And when settler society fails to recognize this, it is saying to First Nations peoples that ‘whatever legal systems you have got traditionally just do not have any value’ (Royal Commission into the Protection and Detention of Children in the Northern Territory (2016, p. 852). Resisting law denotes a particular understanding of law: the words of Mary Graham, and other indigenous scholars and elders like her, instead point to the potential for love to be found in law. The love Voller seeks is the love of being in relation, on country, with elders, with community, in which he is not alone, and in which the land is the law.

Speaking/listening

In the second example, I draw on the personal story of a young woman who was the subject of a sexual assault while under age, by someone whom she knew and trusted, and who was part of her friendship group.⁵ While there are aspects of this story which contest the possibility of love and healing, and which reflect instead a contamination of what love can be taken to mean, I wish to focus on the young woman’s telling of her story as exemplifying the limits of a criminal justice system, and as a way to challenge the adversarial character of the Western criminal justice systems. I offer it as a personal account which reveals the possibilities of rejecting a system of control leading to the imprisonment of her perpetrator.⁶ As Mary Graham has shown, for us to nurture relationships requires attentiveness to protocols, a ‘reflective motive’ and a strong orientation towards collective reflection and learning (Graham, 2013; Graham, 2008, p. 187). An Aboriginal jurisprudence thus entails adherence to a code of conduct’ (Black, 2016, p. 171) and is not founded on adversarialism but on talking with each other (Graham, 2008, p. 184).

I emphasize this point to provide an illustration of what a criminal justice system might look like with closer attention to listening and speaking with, instead of the punishment, re-traumatization and violence that accompanies the criminal justice system and its adversarial approach to ‘justice’. I also offer it to show that the harms that characterize the system are an effect of how it is constituted: for many women who have testified to sexual assault, the criminal justice system has historically been a site of reiterative violence, a place where their words have not been trusted, and where they have been configured not as victim, but as unreliable, untrustworthy witnesses to violence done against them. For many, the shame attached to sexual assault and the blame that follows prevents them from ever being able to speak with the expectation of being heard. While not measuring this against the denial of colonial violence, this denial emanates from the same system of law that underpins Australian society.

Traumatized by her experience, this young woman (then a child) nonetheless summoned courage to seek ‘justice’. However, she did so not with the intent of punishment, but with an altogether different motivation. Seeking this person out, she wanted him to hear her story, to listen to her telling him about the pain she endured. This didn’t happen. A long and arduous process followed in which the case went to court in her attempt to get her story heard, through an adversarial system of justice dominated by examinations, cross-examinations and the interrogations of a defence lawyer skilled in the ‘art’ of demolishing the credibility of young women such as this. The long lead up to the trial and the trial itself was a painful experience. The jury deliberated for some days on the verdict. In the absence of a unanimous decision that it was possible to prove guilt beyond reasonable doubt, the charges did not hold.

On hearing the outcome however, this young woman was not displeased. Indeed, she accepted the verdict. She was satisfied because, as she remarked, ‘I didn’t want him to go to prison. I just wanted him to hear my story.’ Whether or not he absorbed this fully was of less significance than the opportunity for her to speak. She added: ‘I just wanted him to know how it made me feel’. This was a call to be heard, even if not fully in the sense of a dialogue (Graham, 2008, p. 184). We might reflect here on the possible outcomes of such a case had he gone to prison. What other avenues might have existed for a form of healing, in relations between this young man and woman? While this story is posed as a particular account which is not generalizable to everyone’s experience of sexual assault, it offers important insights. This young woman’s statements suggest an underlying desire for and valuing of the possibility of being in relation as a defining feature of justice, including that of being heard – rather than being drawn into a system of punishment and control. Despite its obvious shortcomings as an act of listening/hearing, her desire to be heard publicly in a court of law and the act of speaking in that forum, was an option she took to respond to practices of denial produced by the criminal justice system.

This is also pertinent given that the British system of common law requires that women are re-exposed to the gendered and objectifying processes of the court. While not speaking to the experience of First Nation’s peoples in Australia, this case reveals the underlying violence of the criminal justice system. It deserves attention because the adversarial, penal processes of contemporary ‘justice’ that are the focus of this story, are embedded in the same structures of colonial power that impact most adversely on those who are racialized, classed and gendered. This is not to suggest that interaction of this sort is always possible, advisable or preferred by those experiencing violence, but to propose that there are other possibilities which the criminal justice system closes off. Here the reflective motive described by Graham might open up such possibilities, rather than erecting boundaries around lawful relations.

In this case, the young woman seeks justice from a harm that is both individually and socially produced, including through gendered relations of power. It reveals the possibility of resisting the perpetration of control and punishment which continue to mark the criminal justice system, but not for all. Her failure to achieve retributive justice – and indeed, this was not what she sought – and her re-exposure to violence through the adversarial system was undergone as the necessary harm for her to be speak in the presence of the one who enacted violence against her. She was left with no other option to reclaim her dignity than through an adversarial legal process despite this process subjecting her to the re-traumatization of witnessing violence. I pose this example to complicate our understanding of love and being in relation with each other: collapsing love to a romantic understanding in this context not only shows how love can be corrupted (in the form of abuse) but also illustrates how being in relation, in the sense of the reflective motive which Graham describes, can open up possibilities which an adversarial process makes impossible. While her individual experience of speaking is not translatable to all women and girls, for my purposes here, her story also illustrates the persistence of practices of denial as inhibiting the possibility of meeting with and listening to and hearing each other. Similarly, Howard’s denial of a history and present of settler colonial violence, and the effective denial of love and lawful relations to Aboriginal children and their communities in the Northern Territory which Voller recounts, are the product of, and produced by, the failure to listen and the absence of a reflective motive, as described by Graham.

‘My message is simple’

For Dylan Voller, his cries for love remain unheard even while they continue to be spoken: the harms against children persist as an effect of the structural violence which continues to manifest in Don Dale detention centre today (Dunlop, 2018). Listening to the voices of children and their communities (Koorie Youth Council, 2018) is the first and most important step, and this requires that the system of law which puts children in prisons is unravelled. Voller reflects that

despite all the money spent on the royal commission, all the witnesses, all the recommendations, despite the election promises of Chief Minister Michael Gunner, these children are still being held in an old, condemned male adult prison that makes you feel like you are a caged animal. They are still being held or lengthy periods in solitary confinement … My message is simple – kids on country, not in custody … . (Voller, 2018)

Voller’s comments are unequivocal: why are children being held in punitive, inhumane conditions? If the government claims to protect children from violence, why does it subject children to institutional violence? Why are children not on land, and with community? The paradox can only be explained by the assumption that the state is not the source of violence, that its laws are good, that its intentions are pure and that it acts to further the good of individuals and of society. Structural violence is not violence.

For Aboriginal children in the Northern Territory Youth Justice system, the harms, which are structurally produced, are rendered invisible as harms, except in the moment in which they are visually presented to a horrified public. The call for a Royal Commission functions centrally as a moment which enables sovereign legitimacy to be recovered. Left unexamined was the impact of the Northern Territory Intervention despite numerous witnesses testifying to the on-going structural violence that the NTER has engendered, including higher rates of child removal, policing and imprisonment. The refusal to listen amounts to a denial that violence persists. Yet there is no space for an adversarial system to test allegations of violence in the case of structural violence. The failure to listen and the refusal to hear which accompanies practices of denial cannot be effectively challenged.

While there is no ‘meeting of the laws’ which fosters a practice of listening and acceptance rather than denial (Dorsett and McVeigh), Royal Commissions can do no more than suture over the fractures in the legal system to address calls made by people like Voller (Kaskamanidis, 2017). As Zoe Kaskamanidis has argued, these inquiries are called upon to perform a supplementary yet critical function, that of masking the crack in sovereign (colonial) legitimacy that such violence exposes, in order to restore the appearance of the righteousness of the colonial state (unpublished thesis, 2017). That such an inquiry was needed to indicate that systemic abuse of children is unacceptable, testifies to the underlying violence in institutional settings governed by Australia. Improvements in ‘systems’ and new buildings don’t change the underlying structures of colonial violence. The Royal Commission into the Protection and Detention of Children in the Northern Territory did not address the role of the state and the history of colonial dispossession as key factors implicated in the violence against Aboriginal children (Anthony, 2017). The Commission instead focused on factors and recommendations which characterized this violence as individual and exceptional, rather than normalized and systemic. Indeed, the establishment of Royal Commissions reinforces the normalization of colonial violence. Royal Commissions are thus a reactive (and necessary) technique which enables the state to appear to address its own violence through repairing and restoring faith in (nomophilia) the goodness of liberal law. Yet these are also harms resulting from policies deemed as necessary for the protection of children. As one witness remarked of the impact of the NTER when describing its repercussions at the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016, p. 149):

It’s a further abuse of Aboriginal people, and it continues today. This disempowerment, and the way that services are provided or not provided to Aboriginal Australia, is just appalling … look, we are on our knees here. The last 10 years have just been appalling. So it’s an extension of that abuse, the further abuse of Aboriginal people as a result. That’s what the Intervention was.

As testified in the Royal Commission, change requires a real engagement and ‘talking to the people that have a stake in this’ (Royal Commission into the Protection and Detention of Children in the Northern Territory (2016, p. 825).

Conclusion

Australia’s punitive past and present are a negation of what it means to be in relation, and to exercise responsibility to and for others. This underpins the recurrence of violence at Don Dale and beyond, reflected also in the treatment of people in aged care facilities and immigration detention (Giannacopoulos, & Loughnan, 2019; Royal Commission into Aged Care Quality and Safety 2019). This is a structural and institutional orientation which, while especially pronounced in this country, is not only limited to Australia but also traceable in the broader imperial project. The persistence of violence, abuse and institutional failure can’t be solved by Royal Commissions or by new procedural manuals and new buildings because they fail to address the structures which produce violence (Anthony, 2017). The very foundations of institutions and relationships under contemporary conditions are ethically degraded when they are without the possibility of lawful relation as an embodied experience in which love encompasses a being in relation with.

Accordingly, rather than rejecting law (Agozino, 2019) a retrieval of lawful relations founded upon love as respect for human dignity, offers a way of articulating lawful possibilities. While Agozino points to the ‘withering away’ of the law as an antidote to colonial violence, I argue that it is not ‘law’ that is the problem. To call for resistance to law, as Agozino does, is also to presume a particular manifestation of law. The questions ‘whose law' and ‘what law’ must be posed here. It is the specific (rather than universal) source and form of law – colonial law – that must be addressed and, in its place, forms of lawfulness which embody love and justice, rather than love as separate to justice. An end to imperializing laws is needed in order to avert the persistent forms of oppression it gives rise to. This requires an acknowledgement of the sorts of relations which are enabled or denied as an outcome of the colonial expansion and its accompanying complicit knowledge. Agozino’s (2018, 2019) call for love and for the withering away and rejection of the law requires close and careful reflection because as he shows, love is understood in many different manifestations. To advance an argument about the importance of love as a way of resisting structural injustice, is also to prompt a careful reflection on what is meant by love and what is meant by being in relation with others, as form of conduct. The policies enacted by the Australian government towards Indigenous children and their families are motivated not by care but by control. This article has attempted to deepen our appreciation of the call for love in a criminal justice context. When Dylan Voller calls for law and for love, he is not calling for the kind of law which underpins the criminal justice structures of a settler colonial state like Australia, nor for the kind of love which might be said to, disturbingly, underpin Australia’s child protection system. Both stories explored here illustrate the effects of the denial that injustice exists which is evident in the refusal to listen. Moreover if we are to respond to the call for love, we must also be alert to the dangers of assuming that love is the same as ‘protection’ and that the presumption that it is adequately captured by the idea that children just need to be loved: love entails being in relations which are lawful and which nourish connection to place, and to each other. The call for love is both simple and complex.

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Claire Loughnan

Dr Claire Loughnan is a Lecturer in Criminology in the School of Social and Political Sciences at the University of Melbourne. Her research centres on the modes, practices, and effects of carceral and confined spaces, including immigration detention, prisons, and youth detention; and it explores the trend towards criminalized and racialized responses to border crossings, with a particular focus on the offshoring/externalization of responsibilities for refugees.

Notes

1 This article somewhat interchangeably uses the words First Nations Peoples, Aboriginal, and Indigenous to reflect diverse usage, while concerned about the inherent violence of such names which obscure relationship with land, to place and to language.

2 Many have described this as an attempt as genocide. See the 1997 Bringing them home report of the Australian Human Rights Commission, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth of Australia, Sydney, and van Kreiken (2008).

3 I note, however, that occasional visits by Elders are not enough: kids need to be ‘on country’ not in custody.

4 Goldflam is a Northern Territory lawyer who spoke out in 2012 in his capacity as a member of the Criminal Lawyers Association of the Northern Territory, against the use of mandatory sentencing. See https://www.abc.net.au/news/2012-07-04/nt-judge-attacks-mandatory-sentencing-laws/4109212.

5 This example is drawn from a personal account, for which names and details are withheld to protect confidentiality. The story was related by this person directly to the author, and she has granted permission for this story to be recounted here.

6 The scenario could well be different is other circumstances. Nonetheless, I offer this example in its particularity.