The neo-protectionist misrecognition of Aboriginality in Western Australia.
This article examines the limits of the recognitions and rights given in equalities and reconciliation policy and practice for Aboriginal people subject to criminal justice in Western Australia.
The paper maps the continuities and changes between the racialized penal-welfare of the protection system and Aboriginal groups’ ongoing subjection to over-incarceration and punitive welfare conditionality, drawing on Wacquant’s tracing of a carceral continuum confining Black populations in the US (2001)
Taking a postcolonial-Marxist approach, it argues that this neo-protectionist punishment-welfare form of governance demonstrates the limits of the liberal recognition of Aboriginality (Coulthard, 2014; Blagg, 2016, Povinelli, 2002).
It then draws on critical justice theory (Fraser, 1995) to critique the limits of recognition and redistributive justice (Fraser, 1995) given in reconciliation and equality policy and practice that works within the neo-protectionist framework. 
This article takes a critical postcolonial (Blagg, 2008; Anthony, 2014; Coulthard, 2014) approach to examine the limited recognition and redistributive justice (Fraser, 1995) given to Aboriginal people through the liberal justice, reconciliation and equality policy in Western Australia. Justice policy and practice in West Australia impacts inequitably on Aboriginal people, most evidently through the high rates of over-incarceration and the perception of Aboriginality as ‘criminal’. These justice-practice and discourse work along with multiculturalism, reconciliation, equality and welfare policy and discourse, as forms in which liberal government recognises conflicted conceptions of ‘Aboriginality’ (including socio-cultural practices, beliefs and situation).
The need for a postcolonial approach to understanding settler-state over-incarceration and criminalisation of Aboriginal people has been recognised by Australian critical criminologists (Anthony, 2009, 2010; Broadhurst, 1999; Cunneen, 2008, 2011; Blagg, 2012). Postcolonial perspective focusses on the subjugated knowledge of colonized peoples, the ways colonial structures of domination are negotiated and subverted by the colonized (Bhaba, 1994; Moore-Gilbert, 1997). As Harry Blagg observes, postcolonialism includes a focus on the cultural dynamics in which process of “‘worlding’ where the colonized space is inscribed by the worldview of the colonizer” (Spivak, 1996), and the ‘re-imagining’ and re-mapping of time, place and ‘imagined communities’ provide modes of resistance (Anderson, 1983; Ashcroft et al., 1998; Said, 1994, 2003; Spivak, 1996; Young, 1990). Postcolonial perspectives also focus on issues of recognition, and their relationship to power, resources and land (Coulthard, Fanon). As Coulthard explains, these postcolonial relationships highlight the importance of Fraser’s critical justice idea that there should be ‘no recognition without redistribution’ (Fraser, 1995, ). The ‘bivalence’ (Fraser, 1995) of postcolonial justice claims lend themselves to anti-colonial and post-Marxist critiques of the ongoing legacies of colonial appropriations of land and labour (Coulthard, Marx).
Writing in the Australian context, Cunneen (2011:249) observed that there has been recognition of ‘the ongoing and enduring effects of colonialism on both the colonised and colonisers’ (Agozini, 2003, 2004, 2005; Blagg 2008; Cunneen 2007; 2008; Morrison 2006; Sumner, 1982). However, there remains a need for the postcolonial perspective to systemically inform criminological thinking, in order to understand the ‘long-term impact of colonization and imperialism’ in terms of the ‘intersection of race, crime, and punishment’ (Cuneen, 2011, ). In the British, criminology, a comparative postcolonial framework has been employed to explore “race” relations in prison (Phillips, 2013) and examine the significance of postcolonial diversity in immigration detention (Hassleberg and Bosworth, 2016, forthcoming). These criminological perspectives are recent correlates of a long-standing British postcolonial perspective on post-war ‘race relations’, including issues of criminal justice inequalities (Gilroy, 1987; Morley and Chen, 1996; Hall et al. 1998; Keith, 1993; Solomos 1988; 1993; Bowling and Phillips, 2002).
In recent Australian and British criminology there has been criticism of Eurocentric concepts of the contemporary ‘punitive turn’ and its historically progressive stages up until the end of the welfare state period and the beginning of neoliberalism and popular penality. The focus on the punitive turn in late modernity (or within neoliberalism) has neglected the long-term and ongoing oppressions of colonial penality, the focus of the ‘postcolonial turn’ (Anthony 2014; Moore, 2014; Blagg, 2012, Blagg and Anthony 2016). The progressive teology, from sovereign to disciplinary power, doesn’t work once the postcolonial perspective is included. Working in the West Australian context, Blagg employs postcolonial theory to highlight Aboriginal cultural and identity strategies of resistance (2008, 2012), invoking concepts of contrapunctuality and liminality as modes of resistance that work within existing power structures. Blagg also points to the specificity of Aboriginal perspectives (2016) stressing the importance of place for the Indigenous perspective in settler societies, against British sociology’s increasing concern with stratifications of mobility (Bauman, 2011, ). Anthony and Blagg (2013) view the ‘postcolonial turn’ ’not in terms of a world after colonialism has ended (it has not), but in terms of the diversity of cultural, social and political contestation and crises brought into being by a multiplicity of colonial projects (Blagg, 2016).
The relationship between punitive and postcolonial turns are crucial issues in the settler post-colonies (Australia, Canada, New Zealand) and post-colonial Britain, in part because of the high rates of police surveillance, conviction rates and intensities, and incarceration rates for both post-colonial immigrant minorities and Indigenous people in these countries. In each of these states the issue isn’t (or isn’t just) that a punitive turn has produced higher rates of conviction and incarceration, but that it has targeted post-colonial populations in particular. Cunneen et al. (2013) use a postcolonial perspective to reframe the disproportionately high rates of incarceration of Aboriginal people as ‘hyper-incarceration’, the outcome of settler state of policies, laws and practices designed to dispossess Indigenous people of land and sovereignty.
The over-incarceration of Indigenous Australians, Native American Indians, Maori, and Black and South Asian British has occurred in liberal multiculturalist states, wherein postcolonial populations have been subject to the protections of status equality, based on recognition of equal worth and opportunity. The concurrence of a liberal equality framework with justice-system discrimination has been met with a postcolonial criminological focus on the politics of recognition and misrecognition of Aboriginal peoples in “settler” colonies (see, for example, Povinelli, 2002; Cunneen, 2011; Anthony, 2014 Blagg, 2008, 2016). Elizabeth Povinelli (2002) critiqued Australian liberal multiculturalism, arguing that it is limiting recognition of Aboriginal difference to the extent that it does not constitute a ‘radical alterity’, it fails to recognise the relationship with land that forms the key aspect of Aboriginal identity and social practice. Cunneen (2011:256) describes a postcolonial tension between the universal liberal equality of the western justice system and the recognition of the racialisation, marginalisation, socio-cultural and socio-legal difference of colonized people. Thalia Anthony (2014) critiques the legal system’s recognition of Aboriginality, noting that it divides between supposedly deserving ‘traditional’ remote groups and undeserving urban groups, while limiting status recognition to current disadvantage rather than Aboriginality per se. These forms of liberal recognition limit the rights-bearing aspect of Aboriginal identity in the justice system to a small proportion of Aboriginal people: those who can demonstrate current and ongoing disadvantage suffered by virtue of traditional cultural practices enacted in remote (non-urban) locations. Blagg (2008, 2016) describes the liberal failure to recognise the syncretic character of Aboriginal youth identity that works between networked urbanity and ongoing relationship with land, and the corresponding necessity of sovereign land-based security for the bridging work of Aboriginal multiculturalism.
These foci on Aboriginal alterity and mis/recognition resonate with Glen Coutlhard’s (2014) post-colonial and post-Marxist critique of the liberal recognition of Native Indian people in Canada. The section below first follows Coutlhard’s reading of recognition in terms of Fraser and Fanon, outlining the relationship between status recognition and misrecognitions of status and esteem within the asymmetrical power relations that prevail between colonising and colonised people. It argues that this critical postcolonial approach provides a better understanding of a politics of recognition than liberal theories grounded in assumptions of symmetrical relations of mutual reciprocity.
The article then maps the legacy of the West Australian protection era of penal-welfare for the current era. It argues that the justice system’s over-incarceration of Aboriginal people is, along with reconciliation, and welfare policy (including ‘rehabilitation’), is one component of the way liberal government recognises Aboriginality. Liberal multiculturalism is one element of the current regime of neo-protectionism and hyper-incarceration (Cunneen) in Western Australia.
Coulthard’s Native Indian critique of liberal theories of recognition and identity, as well as critical theories of recognition and redistribution provide frameworks for understanding the limits of liberal justice, equalities and reconciliation responses to Aboriginality in West Australia. Australian national and state (Western Australian) reconciliation and equalities frameworks, like the Canadian reconciliation framework, accord with the pluralist liberal paradigm of Charles Taylor and other liberal theorists (see, for example, Taylor, 1994; Kymlicka, 199x). For Taylor (1991:45-6) individuals develop their identities within their communities and cultures, and do so in “dialogue with others, in agreement or struggle with their recognition of us.” Taylor (1994:25-6) argues that the state’s cultural recognition was a ‘vital human need’ enabling groups and individuals to maintain their difference and autonomy, while mis-recognition oppressively confines individuals or groups in distorted and reduced modes of being. In the Canadian context, pluralism would require that the state should recognise the claims of cultural distinctiveness and self-government being made by First Nation minorities (Taylor, 1993, 148, 180; 1994:40).
Coulthard (2014:31) rejects Taylor’s proposition that ‘a more accommodating, liberal regime of mutual recognition might be capable of addressing the power relations typical of those between Indigenous people and settler states.’ His criticism, based like Taylor’s liberal multiculturalism on the works of Fanon’s Black Skins/White Masks (1952), takes three parts. First, like Nancy Fraser (2003) and other critics of the liberal politics of difference, he finds that Taylor (generally) overemphasises the subjective and cultural aspects of recognition, underplaying the structural and material elements that Fanon (1952) related in terms of an autonomous parity.
Fraser’s critical theory of recognition (1995:70) addresses the (in her view) overly cultural focus of the politics of difference, arguing that justice struggles involve recognition and redistribution claims, based on cultural difference and social equality. Here cultural justice involves struggles over respect and recognition, while socio-economic justice involves issues of exploitation, marginalization and deprivation. Addressing parity of participation requires putting maldistribution (class subordination) justice on an equal footing with misrecognition (status subordination), as in practice most groups are bivalent (subject to both cultural and socio-economic justice) (Fraser, 2003; 1995). Justice, moreover, can take affirmative or transformative forms. ‘Affirmative’ justice involves ‘correcting inequitable outcomes of social arrangements without disturbing the underlying framework that generates them’ Fraser (1995:82). Transformative justice requires ‘remedies aimed at correcting inequitable outcomes precisely by restructuring the underlying generative framework’ (Fraser, 1995:82). Transformation, in the recognition aspect, would involve the underlying cultural-valuation structure so that the individual or group would be recognised in terms that granted greater esteem. At the same time, this transformative recognition requires that everyone’s sense of belonging, affiliation and self is open for change (Fraser, 1995: 83).
Fraser’s subsequent (2003) reframing of justice in terms of parity of participation reframes recognition as status:
the social status order must express equal respect for all participants and ensure equal opportunity for achieving social esteem. This condition precludes institutionalised patterns of cultural value that systematically depreciate some categories of people and the qualities associated with them, thus denying them the status of full partners in social interaction (Fraser, 2010: 365)
Coulthard adopts Fraser’s balancing of recognition with redistribution, and applies the affirmative/transformative dichotomy to Taylor’s multiculturalism. He sees Taylor’s liberal approach as merely affirmative, as it only enables a limiting of the intensity of some of the effects of colonial-capitalist exploitation and domination,’ while neglecting their generative structures (‘a capitalist economy constituted by racial and gender hierarchies and the colonial state’ (Caulthord, 2014:35). Moreover, while this approach is congruent with Taylor’s liberalism, it is incongruent with the cultural and spiritual values of Native Indian groups, and thus constitutes a form of misrecognition (Coulthard, 2014:35-6).
However, Coulthard critiques Fraser’s (2013:31) rejection of recognition as a matter of ‘individual or interpersonal psychology’ as this may entail a logic of blaming the victim, for a notion of recognition as a matter of ‘social relations’. For Coulthard, this eviscerates the subjective agency of the struggle for recognition that he reads Fanon as advocating as necessary to ownership of overcoming the ‘inferiority complex’ of colonised subjects (Fanon, 1991:11, in Caulthord, 2014:37).
Second, Taylor’s liberal recognition assumes the legitimacy of the state’s sovereignty, and thus its power to grant recognition. For Coulthard, this negates the autonomy and self-sovereignty of Indigenous society. Coulthard argues that liberal recognition better enables polynational asymmetry rather than multinational reciprocity. Thirdly, Coulthard rejects Taylor’s (1994: 50) claim that ‘the struggle for recognition can only find one satisfactory solution, and that is a regime of reciprocal recognition among equals.’ For Coulthard’s (2014:40) reading of Fanon, Taylor’s Hegelian mutual recognition of master and slave assumes an equality that does not apply to the asymmetrical relations between the Canadian state and the First Nation people, because the state seeks land and resources, rather than the minority’s recognition. On this basis, reciprocity either breaks down into non-recognition or, as asymmetrical recognition, leaves the foundation of the colonial relationship relatively undisturbed. Subsequently, the limits of the liberal politics of difference has been evident in state practice: for example, while Canadian courts have recognised Indigenous rights in providing ‘an unprecedented degree of protection for certain “cultural” practices within the state, they have nonetheless repeatedly refused to challenge the racist origins of Canada’s assumed sovereign authority over Indigenous peoples and their territories (Coulthard, 2014:41).”
Coulthard’s critical postcolonial and Fraser’s critiques of liberal theory of recognition have relevance for theorising the justice and recognition struggles of Aboriginal people in Western Australia. Before considering those struggles, it will be useful to trace the liberal colonial pathways that led to the current neo-protectionist regime.
In Western Australia, contemporary dynamics are rooted in colonial legacies that start with violent dispossession in the 19th century settler-colonialists’ pursuit of primitive accumulation (Marx, 1990). Governor Sterling’s speculative endeavour was informed by his strong knowledge of the East India Company which was an aggressively oppressive pre-state commercial endeavour in India (see Holt 78). The colony’s dispossession of Aboriginal sovereignty and territory worked through informal warfare conducted by white settlers, (Reynolds, 2013), the forced displacement from the ever-encroaching sphere of settler property, and forced confinement of Aboriginal in reserves, missions, prisons, police lock-ups, residential schools, and orphanages. For displaced and confined Aboriginal people, there was “dishabitating ” dislocation from and of country; the land was still there, but the possibility of inhabiting it in a manner that allows continuation of an Aboriginal mode of life, the matrix of law and custom that support kinship based in custodianship of land was severely restricted. If one side of the Aboriginal experience of white settlement has been forms of imprisonment, as the Noongar elder Noel Nannup observed, the experience has also been one of being ‘refugees in our own country’ (Pilger, 2013).
Representation of the conquered territory as terra nullius emphasised the claim that settlement was being legally enacted in a land devoid of pre-existing sovereignty and self-government (Reynolds, 2006, x). The sovereignty of the crown over the colonies was legislated in the New South Wales Reception Laws on the basis of that all colonial land holdings derived from crown tenure, just as they did in England (Anthony, 2014, 36). As Anthony (2014, 37-8) explains, the 19th century colonial courts interpreted Crown title to land as arising from Indigenous inhabitants lack of sufficient numbers, civilization and proprietary rights.
The colonial laws abjured recognition of Indigenous systems for governing relationships to land, culture, kin and ceremony (Anthony, 2014, 33; Gaykamangu 2012: 238; Loy 2010). In south-western Australia, these systems were maintained by generations of Noongar people. “Under traditional Noongar law, territories belong to entire groups”, while extended family ties kinship networks and sharing form the very basis of the matrix of traditional law and custom (Holt 197 footnote 169, 166) Custodianship was a different concept to the Western notion of alienation (Holt 197). Custodianship, and was usually recognised on the basis of custodial knowledge and was often passed from father to son. It involved particular rights and privileges (such as the burning of bush) (Holt, 197-8). The extension of kinship rights and privileges over territory worked to ensure that boundaries were permeable rather than fixed and inviolable (Holt, 198-9)
The British government position was that possession of the Swan colony was peaceful settlement (Holt, 87-8. The Constitution of the Swan river colony settlement (1829) granted the status of British subjects to Aboriginal people (Holt, 18). British government and humanitarian commentators, at the height of the anti-slavery movement, emphasised the need for gentle government of subject populations (REF). Within the Office of the Protectors (1840)’ officers were required to acquaint themselves with Aboriginal language, habits and territories and ensure that Aboriginal people were not mistreated by other settlers (Holt, x).
The idea of a peaceful settlement was self-contradictory as settlement relied on the violent dispossession of lands (Holt 102) under the custodianship of the Aboriginal people and the laws, customs and relationships they had failed to recognise. Despite the metropolitan discourse of peaceful settlement and the non-recognition of Aboriginality, Governor Stirling understood his endeavour as involving the conquest of Aboriginal people (Holt 87-88). The Legal Advocate George Moore similarly viewed European killing of Aboriginals in order to protect property as imparting salutary lessons (REF). Settlers saw themselves as being at war; punitive colonial expeditions against Aboriginal people were marked by the settlers’ savagery, and those who dissented from the European ‘might is right’ philosophy were ostracised and driven from the settlement (Holt 106-7; 96-7)’. These views of legitimate colonial violence were justified in racial terms subsequently developed in liberal theories of the good government of subject populations (Mills). .
Legitimation for colonialism was sought from the community of settlers themselves, and from metropolitan observers of the colonial project in accordance with British values. Liberal political justification for British colonialism was influentially evident in the political theories of J.S. Mill (Mehta, 1999). Writing in the mid-19th century, Mill justified historical and ongoing British colonialism by drawing on the existing discourse of racial hierarchy to argue that the government of colonial subjects needed to vary in accordance with the stage of civilisation of the subject population (Mill, xx). Mill categorised civilisations as progressing from the natural state of ‘savagery’ to ‘barbarism’ which differed from savagery in being characterised by the violent opposition to civilisation. “Barbarians”, such as the sepoys involved in the India Mutiny (1856), could be treated as mere beasts, and the threats they posed dealt with violently (Ref/more). Populations could progress from the immaturity of savagery and barbarism through the tutelage of ‘slavery’ in which they might learn obedience and discipline. Liberalism’s staged theory of development justified despotic government of ‘immature’ populations as a means of protecting civilisation, and as a means of expanding the sphere of civilisation through their improvement (Mehta, 1999:30-3). For formerly ‘savage’ or ‘barbarian’ populations, Mill advocated benevolent guidance towards their self-government (Mill, 1991; Merefield 2008). Such guidance was backed up by the threat of force as immature populations were ‘in too low a state to yield to the guidance of any but those to whom they look up to as the possessor of force (Mill, 1991, 49-50; 1946; ).
Mill’s developmental schema resonates with British colonialist misrecognition of Aboriginal people as ‘barbarians’ and ‘savages’. In apprehending Aboriginal people as ‘barbarians’, punishments for actions taken to be resistant including whipping, shackling and chaining, and executions, were often conducted in public in order to terrorise potential Aboriginal resistance, providing Aboriginal people with the despotic education in white law and order (Finnane and McGuire, 2001, 281; Edmonds, 2010:151). These forms of symbolic terror were justified by criminalising the acts of resistance as ‘barbaric’ as opposed to the civilising violence of the settlers: Media campaigns representing Indigenous resisters as ‘outlaws’ worked to justify the informal warfare conducted in large part by squatters. As Blagg (2008, 2) observes, such criminalisation ‘played a key role in silencing criticism of the mass dispossession of Indigenous people and through this the theft of land’.
However, where colonial subjects accepted defeat and desisted from resistance, Aboriginal were viewed, in Millian terms, as savages requiring tutelage rather than barbarians requiring violent suppression. This flexibility in colonial management of subject populations was evident in the Australian frontiers where, for example, the forced and coerced labour of the Aboriginal pastoral workers often for no more than for food and lodgings was also used to legitimate colonial settlement in its representation as a form of civilising education(REF).
Resistance and adaption to colonial dispossession and penal-welfare.
Aboriginal people accepted settlers initially as returning ancestors, and the early south west garrison did not encroach greatly upon the Aboriginal relationship to land (Holt, 74). In the first years of settlement Aboriginal attitudes towards Europeans were amicable, and involved numerous instances of kindness. European views of land as asset and private property law were incommensurable, however, with Noongar custodianship of land, Once the Swan River settlement began to encroach upon their custodianship, and the settlers undertook informal warfare in order to secure the dispossession and displacement, Noongar people resorted to numerous acts of violent resistance. As Holt notes, their resistance was not to Europeans but to being turned off traditional land and of failure to honour reciprocity (Holt, 106-7). This period of militant resistance may have ended by 1840, following the York conflict of 1839 (Greene, Holt, 117).
As colonial relations developed from settler strategies of warfare and to labour exploitation, Aboriginal practices shifted from payback to adaption and self-preservation in the mid to late 19th century, settler society drew increasingly on Darwinian notions of racial hierarchy. Aboriginal people were viewed as unsuccessful in the species competition for the survival of the fittest, and represented as a ‘dying race’. Racialised notions of caste were used to legitimate the idea that full-blooded Aboriginal would become naturally extinct, while breeding and the education of exposure to European civilisation would extinguish the Aboriginality of those who were of mixed parentage (those who were ‘half-caste’ or less). Thus with barbarism defeated by European might (in warfare and the criminal justice system), savagery could be extinguished through assimilation into European blood, caste, and culture. The notions of caste and blood were central to the developing liberal concepts and practices of protection. If in the early years of settlement, British authorities had required that Aboriginals be protected from ‘other settlers, ’after a decade on violent conflict, colonial government had reversed the emphasis so that the 1849 Act referred to the protection of settlers. The 1886 Protection Act was based upon the idea of Aborigines disappearing, and labelled only people of full blood as Aboriginal (Holt, 152). Aboriginal people of full blood, or otherwise conceived of as ‘real’ or ‘traditional’ Aboriginals, were viewed as a population that could be segregated and ‘let die’ (Holt 152).
The 1886 Act gave Honorary Protectors powers to control the movement of Aboriginal people in several areas; to arrest them for loitering and “dressing indecently”; to confiscate their weapons, to enter and evacuate their camps, to arrest without warrant for possessing alcohol; for cohabitating with Europeans, or for any offence under the Act, to the and bonds in deposits from employees wanting to move Aboriginals from one district to another, to supervise via the permit system all Aboriginal women and boys under 15, and to demand police assistance as they are required.
The 1905 Aborigines Act gave the Governor arbitrary powers to declare Aboriginal reserves and prohibited areas; to confine people on reserves and to exempt people from confinement; to exempt individuals from the provisions of the Act. It consolidated the powers of the Honorary Protectors (most-often local policemen) in the role of the Chief Protector. The Chief Protector was made legal guardian of all “illegitimate” Aboriginal children under 16, and had the power to remove them to missions. The Protector also had the power to grant or deny permission for Aboriginal women to marry European men; to manage the property of Aboriginal people without their consent. These powers were expanded in subsequent amendments; establishing great powers and scope including more categories of people under the protection-system’s power
The West Australian Protection Acts, like Queensland Act (1897), the Aboriginals Ordinance Northern Territory, (1918), were designed to segregate and control Aboriginal populations, through restrictions on mobility, employment, and family relations and kinship, and welfare. ‘Protection’ confined Aboriginal people to reserves, settlements, pastoral stations and missions (Hogg, 1985; Haebich, 1992; Hawke & Gallagher 1989; Marshall, 1988).
Up until the 1950s, the penality belonging to the “protection” system (including imprisonment) was primary, while the formal criminal justice system was secondary (Cunneen et al. 2013:787). Protection was as much a matter of policing as welfare: the role of honorary protector most often fell to local police officers. These police-protectors (Haebich) were responsible for their own system of order and punishment. This included confinement to places of residence and work, control of the rate of and access to pay, and control of family relations.
The welfare-penal and formal justice systems worked in tandem, with Aboriginal people released from prison being ‘deported’ indefinitely to the reserve/missions, and others seen as troublemakers removed from society without any charge or conviction (Cunneen et al (2013: 733-742; Finnane and Maguire, 2001: 290-2). The formal justice system discriminated against Aboriginal people who suffered longer prison terms than white people, while their conditions of imprisonment included high mortality rates caused by overcrowding, disease, abuse, and execution (Haebich, 2000:210-211).
These sites of penal welfare confined many of their inhabitants in mission/reserve/institution (including orphanages, …) and the prison. Many Noonar people were confined to circulation between these sites of confinement, their penal/welfare runs becoming journeys within what Loic Wacquant terms (in reference to Afro_American ghettoes) a carceral continuum (Wacquant, 2001; Hogg, 2001; Haebich, 2000:206).
The use of this particular carceral formation decreased from the late 1950s, in correspondence with the rise of civil rights, assimilationist and anti-racist policies, increased property values associated with mining and agriculture. New forms of Aboriginal displacement and containment were associated with the repeal of protection legislation. Aboriginal Welfare and Protection Boards closed, many missions, reserves and other institutions of confinement closed or handed over to Aboriginal communities, and many Aboriginal people moved to marginal urban areas.
As ‘protective’ segregation gave way to urban proximity between Aboriginal and settler populations, segregated penal-welfare began to give way to greater reliance on the formal criminal justice system (Broadhurst, 1987:154; Hogg, 2001:367). Correspondingly, there was a massive increase in Aboriginal imprisonment rates, from 1.4 per 1000 in 1946/7 to 140 per 1000 in 1991/2, (The containment of Aboriginal people shifted from the protection system to the formal justice system.
In contemporary terms, one trajectory for incarcerated Aboriginal people begins in the impoverished habitats in urban margins, former missions and reserves. These locations often represent a colonial displacement from the spiritual inhabitation of particular country. Imprisonment after arrest often involves a further dislocation to urban centres remote from the Aboriginal person’s country, family and community.
Imprisonment represents a territorial and spiritual forced dislocation and confinement, as well as a compounding of disadvantage and diminishment of prospects of social mobility in Australian society. For many Aboriginal people, movement from the urban fringe to the prison and back again becomes a confining pattern that resembles the deadly symbiosis and carceral continuum suffered by poor Black Americans.
The key feature of the criminal justice system and imprisonment in Australia is the overrepresentation and over-incarceration of Aboriginal people. Extremely high incarceration rates apply in the three frontier jurisdictions West Australia, Northern Territory, and Queensland. For example, in Western Australia Aboriginal men make up approximately 40 per cent of the prison population, despite Aboriginal people representing only 3.6 per cent of the population. The ratio of Aboriginal to non-Aboriginal incarceration in Australia was approx. 16:1, and in Western Australia was 18:1 in 2014 (ABS, 2015). The national ratio for Aboriginal youth compared to non-Aboriginal youth in Western Australia was 52:1 (AIHW, 2015). These disproportionately high incarceration rates result, in part, from criminal justice policies including a lack of commitment to post RIKADIK diversion strategies for Aboriginal youth, combined with “‘three strikes’ mandatory sentencing for juveniles convicted of property offences, the transfer of responsibility for youth justice from the Department of Community Services to the Department of Corrections, stricter parole conditions, restrictions on access to bail, an increasingly ‘zero tolerance’ approach to policing the streets, youth curfews and ‘move on’ orders” (Blagg, 2012).
These ‘push factor’ policies responding to a racist law and order politics matched by the ‘pull factors’ of greater levels of offending and social disorganization need to be understand in a postcolonial framework (Blagg, 2008).
Like the UK, Australia is a signatory to the major civil and political human rights conventions. However, it does not have national human rights legislation. Instead, equality and diversity is managed within the federal system (state and territory governments). Each state or territory prison department has its own guidelines based on the state legislative frameworks. Issues of equality and diversity are particularly pressing in Western Australia, as the state has the worst over-incarceration of Aboriginal people.
Western Australia (W.A) is guided by the public service Policy Framework for Substantive Equality (2010) under the Equal Opportunity Act 1984 (WA). The recognition of the needs of diverse groups and individuals within an overall aim of achieving equality is acknowledged both in broader policy frameworks, particular prison policies and in the monitoring of the Equal Opportunities Commission (up until 2014), and the prisons inspectorate. In addition, prisons services are guided by a new Reconciliation Action Plan (DCS 2015) that recognizes, albeit in weaker form, the substantive equality guidelines for prison operations.
The W.A. prisons department (DCS, 2008) formally defines substantive equality as being ‘about treating people differently in order to cater for their needs to achieve equal outcomes.’ It recognises that ‘rights, entitlements, opportunities and access are not equally distributed throughout society’ and that ‘equal or the same application of rules to unequal groups can have unequal results’ (DCS, 2008). As such it takes into account ‘the effects of past discrimination and the differences in needs between groups and individuals to minimise unfair outcomes’ (DCS, 2008). Within this approach policy has aimed to promote the culturally appropriate treatment of Aboriginal people, including recognition of the negative consequences of colonialism, ongoing disadvantages, and the need to address prison over-representation and high recidivism rates.
These postcolonial framings of equality are undercut by the neoliberal orientation of the presiding government, including austerity measures, along with government and media stigmatizing of Aboriginal communities as sites of substance abuse, violence and sexual abuse, and their residents as morally inadequate and undisciplined (Anthony, 2014). The substantive equality approach exists in conflict with the neoliberal political economy and the cultural racism that presents Aboriginal offenders as particularly undeserving.
In practice the West Australian approach has supported a strong degree of cultural and faith practices in prisons; Aboriginal prisoners have been able to enact cultural celebrations and participate in traditional forms of sociality with dedicated meeting places (often around the fire, to facilitate yarning); new prisons in regions with Aboriginal communities, including the West Kimberley and Eastern Goldfields prisons have been designed to be ‘culturally appropriate’; tribal groups have sometimes been encouraged to request colocation in shared accommodation (as a reward for compliant behaviour) (OICS, 2015).
This partially ‘post-colonial’ policy and practice goes beyond cultural identity recognition to recognize prisoners’ historical situation, including socio-economic disadvantage. Some W.A. prisons have, correspondingly, geared industries to providing pathways to post-sentence work for Aboriginal prisoners, including work in food preparation, hospitality, and construction. On a prima facia basis, this approach appears to represent an improvement over the UK approach to diversity in recognising the historical oppression and disadvantages of Aboriginal people, along with recognition of their incommensurable mode of life.
Yet the West Australian approach is only partially post/colonial; the substantive equality approach came about at a particular political moment under the stewardship of the Labour Premier Geoff Gallop: subsequent Liberal leadership of the state restricted its use in favour of neo-liberal risk management. In practice the prisons department has made weak use of the substantive equality principles, failing to perform the acts of translation that would recognise alternate or incommensurable socio-cultural systems. The Department’s policy on funeral attendance gives one example. Aboriginal people have strong spiritual and social obligations to attend the funeral of important relations, and incarcerated individuals are expected to show that they have at least attempted to gain permission to attend. The Department restricts attendance to prisoners whose deceased relations were close blood ties (mothers, fathers, sisters, brothers). However, Aboriginal socio-cultural practices are based on networks of care including, but not limited to (blood tie) family members; many applications are for the funerals of people who were important to the prisoner (often, primary care givers), but not close blood relations (OICS, 2013).
The Department’s Eurocentric assessment of funeral applications fails to adequately recognise Aboriginal socio-cultural alterity (Blagg, 2008:201; Anthony, 2014:139). A similar failure exists in the practice of dispersing Aboriginal groups away from their land and people (“out of country”), for supposedly cost-effective incarceration. These cultural failures correspond to neoliberal cost-cutting, as the state (and federal government) has sought to restrict support for remotely located Aboriginal communities, on the basis that their occupation consists of a “lifestyle choice” (Kaldor and Mayes, 2015). This postcolonial misrecognition reflects the original misrecognition of Aboriginal modes of life, and continues the neoliberal postcolonial rejection of Aboriginal claims to “not simple formal equality, but the right to a radical difference based on a pre-existing relationship with the land” (Blagg, 2008:202).
Failures to recognise alterity have occurred in the realm of treatment programs, US-based criminogenic treatment programs used for all prisoners in WA prisons have largely been used with limited adaption for Aboriginality, and departmental support for comprehensive re-working of these, and for the development of historically and socio-culturally appropriate programs like Red Dust Healing have been weak.
Despite the substantive equality focus on overcoming disadvantages caused by colonialism, the department’s sentence risk assessment system takes a universal approach in which longstanding historical offences contribute to higher risk assessments and less access to resettlement support. This liberally equitable policy impacts Aboriginal prisoners in particular as many have criminal offences dating from their youth. This is substantively inequitable as Aboriginal prisoners are generally in particular need of resettlement support.
Finally in this vein, the program of prison building, including the women’s precinct at Hakea fails to recognise that that Aboriginal over-incarceration in prison ? this ‘peculiar institution’ ? is the epitome of postcolonial inappropriateness. These failures of socio-cultural misrecognition correspond to the state government disbanding of the Substantive Equality Unit in 2015. The letting-go of substantive equality suggest that socio-cultural recognition falters at the limits of neoliberal austerity measures, and stops at the alterity of non-liberal modes of being.
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In parts, the paper draws on inspection findings from the author’s research for the Office of the Inspector of Custodial Services
 See, for example, Barry, (2016); Rorty R (1998, 2000); Garrett (2010)
 not to be confused with the later protection system
 Griffiths (2006: 204, fn., 35) follows Christopher Turk (1988: 26-7) in noting that Mills was the ‘easily the dominant political theorist in pre-1870 Victorian Britain, and draws on multiple colonial sources to illustrate his strong influence amongst Australian colonial elites in the late colonial period (204-5, fn.,36).
 Mill, 1946, 131-2. Mill is not here advocating the practice of slavery by civilized states, but noting that immature societies may, nonetheless, progress through enforced ‘indstrial life’.
 In West Australia the period of settler warfare and Indigenous resistance between 1830 and 39 there were approximately 61 aboriginal people killed and 20 settlers killed per year.
 extinction thesis is based upon the idea that the longer aboriginal population decline towards extinction on the basis of this intertribal violence, Settler violence, disease, and in migration of other aboriginal groups reducing the blood cast purity of the population
 Previously the 1874 industrial schools act had held power over institutionalisation of children including aboriginal children
 Equal Opportunity Act 1984 (WA); Prisons Act 1981 (WA) s 95(5); Racial Discrimination Act 1975 (Cth).
These guidelines seek to provide users with ‘equitable outcomes regardless of their ethnic or cultural background, gender or personal conditions’.
 Department of the Attorney General, State Aboriginal Justice Congress 2009, Western Australian Aboriginal Justice Agreement, State Justice Plan 2009–2014; DCS (2008, 2009, 2011, 2015).
 I am using ‘post/colonial to signify a disruption with colonial mindsets, in contrast to ‘postcolonial’ which signifies a continuity of the colonial mindset.
 This issue was informally tracked by the author for the Office of the Inspector of Custodial Services (WA) throughout 2013-14. Updates provided by the Department of Corrective Services (WA).