ATSIP and Immigrant Ethnic Minorities in the Criminal Justice System

Essay Topic: Discuss a number of populations who are entering criminal justice system at an increased rate. Pick two of the populations discussed in this Unit who are experiencing this problem, and explain the shared and different reasons why this is occurring. You should use case studies and examples to support your argument.

The Increasing rates of aboriginal/ Torres Strait islanders people (ATISP) and immigrants (ethnic minorities) coming in contact with the Criminal Justice system (CJS) can be argued as whether “Australia’s criminal justice system (CJS) has satisfied the coexisting core principles which include fairness, transparency and equality before the law” (Burgess, 2010, p12). This piece explores the two populations through the conservative and oppressive attitude of the CJS and the challenges of multiple factors such as police discretion, institutionalised racism, bias and discrimination. The history revolving around the system’s ability to impose “equality, fairness and access” ( Beazer, 2018, p280), is argued on what factors have contributed to the increasing rate of the CJS compared to other populations and determine how/why the CJS sees these populations as problems, how they come in contact with the CJS so often, the similarities and differences between these populations which intersect and reforms which can help with our current CJS to overcome the barriers of bias and overrepresentation of these populations.

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The criminal justice system (CJS) under the Common law/ Westminster system derived from the UK, examines ‘the rule of law’ being defined as ‘within which all people should be treated alike: without fear or favour; rich or poor; male or female; established Australian or migrant” (White and Perrone, 2015, p.351). In correlation, Indigenous people are constantly overrepresented, experience institutionised racism and discrimination and disregarded with constant experience to “intense scrutiny and intervention” (Cuneen, 2008, p65). The issue of overrepresentation and  treatment of indigenous and Torres Strait islanders becoming “racialised and criminalised” (Cunneen,2008, p68), is the fact that “white policy makers hold leverage and control over them systematically, eroding the relationship between ATISP and the CJS” ( Cunneen, 2016, p1). The CJS reveals itself to be an unknown and unfamiliar system with western legal ideology which overrides the ATISP’s system of tradition, community values and casts it out as irrelevant (Cunneen, 2016,p48 ). They are essentially a population which “lives in a country with two laws” (Cunneen,2008,p121). The erosion of trust, identity and understanding between the Indigenous community and CJS comes from their stolen identity during the cross generational colonisation/marginalisation, where “the Law Reform Commission of Western Australia (2006, p192) found that ‘historically Aboriginal people have been subject to oppressive treatment by police. As a consequence, Aboriginal people often distrust and resent police officers” (Cunneen, 2016, p70) .Hence, the ATSIP has endured oppression, which involves reported stats “back in 1991, depicting the number of Indigenous prisoners increasing by 8% annually compared to 3%” (Cunneen, 2011,p8) while in the ABS 2017, prisoners in Australia reporting “the rate of imprisonment being 15% higher compared  to non-aboriginal people and that the rate for aboriginal people has increased by 4% from 2,346 in 2016 to 2,434” (ABS, 2017).  By imposing Western ideologies, “It is not the case that Indigenous people are ignored in criminology, but that they are constantly the object of intense scrutiny and intervention” (Cunneen, 2008, p65). Consequently, the ATISP had to “accept the fact that they are a doomed race whom has been imposed/ trapped by an alien culture” (Cunneen, 2008, p131).

The CJS has flaws in accommodating Indigenous people stemming from their limitations of access and lack of consideration to accommodate Aboriginal customs and traditions into the CJS’s procedures. This places the system’s challenges in maintaining  the coexistence of “equality, fairness and access” (Beazer,2018,p280) and essentially the system fails by their lack of inclusion and integration of aboriginal customs. The ATISP within the CJS is disadvantaged where they are being overrepresented through their “race being conflated with criminality and viewed as a colonised and criminalised group” (Cuneen,p68,2008). This means that actions which are not normally deemed a crime by the state, are more likely subjected to over-policing and arrest. Overpolicing has been an issue where “over-representation happens at all levels of the justice system: including initial contact, arrest, conviction and imprisonment” (Cunneen, 2015, p370). The population was subject to “constant surveillance experienced by some Aboriginal communities, being dramatically brought to public attention in the 1970s, following media reports on the policing of the Sydney suburb, Redfern, where there was a high concentration of Aboriginal people” (Cunneen, 2015, p370). This depicts the history of ATISP and the police to have been depicted as a long hostile and discretionary relationship. Forms of discretion range from stats showcasing that police would more likely stop and search young aboriginal people compared to non-aboriginal people and between 90-95% of these searches were unsuccessful” (Cunneen, 2016,p72). Additionally, “move-on notices were issued to Aboriginal people in inappropriate circumstances and were disproportionately affected by this law. Aboriginal people were also being targeted by the police for congregating in large groups in public areas even though no one is doing anything wrong” (Cunneen, 2016, p72). Crimes considered minor offenses and not heavily defined by the state such as “public drunkenness and minor offences such as offensive language” (Weatherburn,2014,p3), “were still subjected to twice as likely to be arrested and three times more likely to be imprisoned compared to non-indigenous people ” (AHRC, 2019). With these arrests there have also been a substantial increase in ATISP deaths in custody. A report has examined “between 1989 and 1996, a total of 96 ATISP died in custody” (Cunneen, 2011, p8) while “between 2008 and 2019, 153 ATISP have died in custody” (AHRC, 2019). Evident in the death of Ms Dhu in 2014, she was mistreated by police where she was “cuffed, accused and overlooked by her complaining about her injuries/pain seeming exaggerated/faked and eventually died due to infection by injuries caused by her partner” (Allam,2019). Another example showcases the death of Kwementyaye Briscoe, “where he was arrested due to him being drunk in a public space. His death comes by the mistreatment and lack of treatment by police while being dragged to his cell, succumbing to alcohol poisoning and inadequate medical checking ” (Allam, 2019). Overall, the history of hostility/oppression portrayed by authorities and police showcases the lack of inclusion, trust and reform between the authorities and ATISP.

The overrepresentation of Immigrant (ethnic minority) populations comes from the public’s fear of crime and factors of labelling, discrimination and institutionalised racism play a significant role in depicting the “myth of the criminal immigrant being deeply rooted in public opinion, shaped by political rhetoric and fanned by sensationalist media accounts” (Sydes,2015,p11).This results in different ethnic groups ending up increasingly racial profiled and overpoliced within our general population and overrepresented in the CJS. As ethnic minorities means any person born outside Australia, defining this term would be difficult as there are people who have the appearance of a minority, yet it is also easy to misrepresent who exactly is born in Australia or born overseas just by their appearance (Pyonting,2008, p119). Age and race also makes the label “dubious and not straight forward” (Pyonting, 2008, p119 ). In “forming the myth which protrudes the idea of fearing crime where gangs of ethnic minority youth are perceived to be threatening because of unfamiliarity to or produce prejudice on the part of, dominant ethnic groups engendered by media and popular representations” (Cunneen, 2008, p119).  Although there has never been a true link to ethnicity and crime, people’s perceptions usually “stems from the fact that immigrants typically embody the characteristics known to be associated with crime among natives” (Syde, 2015, p13). However most people base their judgment on their “appearance, socio economic status, education and age which links them demographically with other ethnic minority groups” (Mukherjee,1999, Cunneen, 2008, p119).  History of Immigrant crime linking usually relates back to assumptions and past actions where people from particular minority races have committed horrific or shocking crimes which have substantially impacted the community. However reports have found that first generation immigrants are “actually underrepresented in crime with 3.9 per 1000 with being less than that for adult Australians at 5.7 per 1000 people” (Pyonting,2008, p120). Considering this, the “recidivism rate of immigrants was half that of Australian born locals” (Pyonting, 2008,p120). However “popular media prejudices and misconceptions” (Poynting,2008,p121) blow these situations out of proportion. Examples dating back to the 1950’s show that different minority groups change, so long as they are the centre of attention at the time. From the 1950’s and 60’s, “the attention was directed at the Italians and greeks , where in 1961 they were involved in an organised prosititution” (Pyonting, 2008, p121). During 1970, “there was a whole community of Italians being  criminalised due to the sales of cannabis” (Poynting, 2008, p121). In the 1980’s, “Vietnamese people were a sign of violence and drug related crime due to paranoia and connection to the Vietnam War” (Pyonting,2008, p121). Essentially the common trend of these events were, whatever the state defines as a crime at the time and whatever ethnic group/ minority produces drama, moral panic and substantial harm to a community, whether it is now or in the past (eg 9/11,Vietnam War), will cause moral panic upon the community, who will disproportionately label, racialise and misrepresent (Poynting,2008,p121). In correlation, the “rise in young ethnic gangs: Asian and Lebanese in the 1990’s in the diverse cities of Melbourne and Sydney, was another incident which produced moral panic, and were subjected to popular state surveillance and intervention” (Poynting, 2008, p121).  Essentially this never ending cycle would continue today to the incident of the South Sudanese population being blamed for the “Apex gang” involvement in the Moomba brawl incident in 2016 ( Benier, 2018). Essentially this situation caused the community to stereotypically label the sudanese gangs as the current trending gang. Perspectively, this trend will never end and once another incident arises, this will provide a chain domino effect lunging onto the next minority. Ultimately, institutionalised racism stems from the differences and bias which comes from the exaggerated perceptions and opinions of the media and general population, where essentially “the extra visibility of young ethnic minority people feeds the media’s moral panics over gangs, as well as bolstering a racial stereotyping based upon physical appearance” (White, 2015,2013a, p45).

Essentially both discussed populations intersect quite similarly by being interwined through institutionalised racism, marginisation and discrimination. Intersectionality showcases how both groups form similar tendencies for other people to stigmatise them and assume them as deviants in our society. Factors such as discrimination, racism and socio economic status form a basic foundation to why they are commonly overrepresented in the CJS. Both populations experience “differential policing , where this refers to a style of policing that negatively impacts those subject to police decisions based on particular sexual, racial and class dimensions and stereotypes” (White, 2015, p370). Both populations also have similar age groups being overrepresented particularly the youth whom are less controlled compared to first generation parents. ATISP are also subject to moral panic and stereotyping since “in a similar vein, the dominant construction of Aboriginality within the media is largely negative and tends to be associated with stereotypes such as the long-grasser, juvenile joyrider, petty thieves and drunk crimes” (White, 2015, p45). The two populations ultimately incite bias from public perception and fear based on their actions/behaviour around them. Perspectively both populations experience institutionalised racism, where over policing is common for police to perceive these ethnic groups to behave in a certain way and harness particular stereotypes. The differences from which these populations experience stem from their origins, status and methods in which they are mistreated by authorities. Although ATISP has existing reforms such as koori courts, community centres and night patrols, ethnic minorities don’t really have any of these reforms and tend to be trapped within public perception due to the population’s past actions. Whatever differences and similarities these populations have in common, what is certain is the fact they are caught in a society which is bias and sensitive to fear of crime. Both populations require inclusion, reform and alternate/diversion sentencing measures within the CJS to avoid overrepresentation.

As our country becomes more diverse and with society’s values changing rapidly, the CJS/law should follow suit to reflect these changes in depicting society’s diverse values and customs. Our current CJS fails to adopt and adapt changes under the rule of law, which reflects as conservative barriers block inclusion and why certain populations end up overrepresented. Populations such as the ATSIP and Immigrant ethnic minorities mainly become overpoliced due to them being subject to institutional racism, labelling, discrimination and oppression. Resolving the problem of overrepresentation requires the CJS to be open to reform, understanding, interaction, education and social inclusivity to allow the system to provide alternative access/justice solutions to represent the values of the general population. Overall, given the conservative nature and stance of our CJS, the perspective of the general society, and the lack of change to reform the flaws in accommodating these populations equally within our justice system and society, is essentially what makes these populations so overrepresented. 

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