Archives for category: Aboriginal


Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].


When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.




[3] Walker v NSW (1994) 182 CLR 45




[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)


[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59


Above image:


Objections to deliberative democracy state that culturally plural societies are too diverse to be able to enact such a concept, that social groups who are marginalized in these societies would not have the access or ability to participate in such decision-making processes. This essay argues that deliberative democracy is applicable to these societies and may be the only method of addressing historical injustices through the reconciliation process, shared stories and perceptions of a common good.


 “First we argue for equality, by appealing to the arbitrariness of the natural lottery. Then we allow departures from equality provided that these are not worse for those who are worst off. This explains why, in Rawls’s phrase, the worst-off have the veto, so that benefits to them should have absolute priority.” Parfit (2000, p.121)


Theorists of deliberative democracy assert that democracy relies upon notions of a common good and an egalitarian ideal, and also that democracies should be developed to encourage civic responsibility and self-respect. While many modern societies are culturally plural, as long as a system of government allows for a fair system of bargaining that is representative of all groups, these theorists think that it will be a legitimate system (Cohen, 1997). This essay will look at the different concepts that underpin deliberative democracy and assert that such a democratic process is both applicable to a modern, pluralist society and that collective choice will also lead to better understanding between the different groups that inhabit these societies.

John Dryzek’s “Discursive Democracy” (1990) was the first book written about deliberative democracy. Dryzek states that ‘the final decade of the second millennium saw the theory of democracy take a strong deliberative turn’ (Dryzek, 2000:1).  The opportunity to participate became the imperative in asserting effective deliberation and claims for or advocated by others could be justified in terms that would be acceptable to the participants. For Dryzek (2000), deliberative democracy should not be confined to strict forms of ‘public reason’ but should be able to engage in more tolerant positions that include testimony, humour, emotion, storytelling, argument, rhetoric and even gossip. He contends that this would help deliberation in a non-coercive way and rule out dominant powers manipulating outcomes or attempting to enforce an ideological conformity.

This also explains how deliberative democracy has come to be seen by some as being too chaotic and unmanageable through inclusion, and yet by others as being too restrictive through exclusion. For these objections even the idea of rational argument is elitist and exclusive to those who cannot explain themselves comprehensively (Dryzek, 2000:5). However, Dryzek’s inclusion of story allows those that do not have the same worldview as the dominant group to come to an arena of democracy and show through narrative why their preferences might be the ones that are chosen by the collective. Indigenous people can benefit from democracy in this way, instead of having to rely upon the political representation of someone who has little concept of their worldview or culture.

Jürgen Habermas developed the concept of deliberative democracy, basing its legitimacy in reason. Democracy, asserted Habermas, is supposed to encourage free critical reasoning about common affairs designed to guide the practice of coercive powers (Cohen, 1999:386). Joshua Cohen states that one of the reasons that Habermas contended that democracy should be deliberative, was to ensure the impartial justifiability of outcomes (Cohen, 1999:402). John Rawls (1972) also reflected this in his thinking about political decision-making where his principle of participation required fair political equality. Deliberative democracy relies upon the participants engaging in free deliberation amongst equals as the basis of their legitimacy and Cohen (1999) thinks that in this way deliberative democracy is able to address pluralism within a democratic process. Citizens find resolutions to problems of collective choice through public reasoning and establishing a framework for deliberation. It is a plural and diverse association that is committed to resolving problems through collective choice. This is assisted through each party not reaffirming self-interested or mandatory preferences or ideals.

The first step in collective choice is choosing an agenda, then the proposal of different solutions to that agenda with supportive reasoning, and finally settling upon an agreed solution. While all comprehend the necessity of their own good, in deliberative democratic decision-making they also share a commitment to finding decisions that are acceptable to all, even if it involves revising one’s own preferences and beliefs. Deliberation requires critical reasoning because it is not enough in pluralistic societies for people to provide reasons for decisions being based upon preferences, beliefs or ideals. The notion of autonomy is also important in a deliberative democracy, as preferences should be formed by agency rather than circumstance. Therefore, deliberation consists of assessing the common good from the basis of legitimate public reflection on what is an appropriate claim on public resources, rather than notions of preconceived ideas and interests (Cohen, 1997).

Historical injustice means injustices that have occurred across generations from oppressive social practices and institutions. These social practices legitimise exclusion and oppress certain groups because their features mark them as inferior to others. Through this oppression these social groups are vulnerable to exploitation, marginalization, powerlessness, cultural imperialism and violence. If this oppression occurs over a long period of time they become historical injustices. Historical oppression is unique in that it formulates identity in terms of conflict and opposition, leaving a stigma even after reparations have been reparations have been attempted. Indigenous cultures that have been conquered by settler colonial powers are an example of historical injustice. In attempting to address the plural dimensions of historical oppression, democratic inclusion must find a way of resolving these issues (Bashir, 2012).

Benjamin Barber (Young, 1989: 256) highlights the opposition between the general interests of the civic polity and the particular interests of private affiliations. Barber states that concepts of the common group are not enforced from a position of authority but agreed upon as part of a common project. Although Barber states that notions of belonging to particular groups are important as well for people, it could be that concepts such as universal citizenship and deliberative democracy may require a degree of impartiality that humans may not be able to practice (Young, 1989). People understand polity from their particular perspective and the narrower their perspective the narrower will be their political view. This occurs in societies where some are privileged while other are oppressed. To recommend that all citizens leave their perspectives and interests behind merely reinforces the privileged position of some and fails to redress the oppression, all the while silencing it by ignoring the perspective of the oppressed. Young (1989) argues that Barber confuses plurality with privatisation, stating that pluralism encourages particular private interest groups to assert their interests over others. She goes on that instead of unified public realm that does not disregard the particular perspectives of individuals but acknowledges the ‘desire to decide together the society’s policies’ (Young, 1989:258). Therefore Young suggests that there should be specific representation of disadvantaged groups in order to enact affirmative action with regard to their participation in the greater group, the greater group already having a strong enough voice (Young, 1989:262).

An objection to deliberative democracy is that its treatment of basic liberties is unacceptable because it is dependent upon a majority decision and restricts the liberty of individuals. Cohen (1997) responds to this objection by stating that deliberative democracy entails informed and autonomous judgements through public deliberations in which free and civil expression is allowed to take place. In this way it includes the individual in decisions for the majority. Another objection is that public deliberation is, in reality, irrelevant to modern political conditions. It is basically an objection that direct democracy cannot occur in modern conditions because the nature of our states is too large and complex in both population and institutions. Especially with regard to the globalization of citizenship in large conglomeration states like the European Union, this objection states that it is difficult to encourage citizens under such conditions of diversity to consider themselves equal participants in acts of cooperative deliberation (Cohen, 1997). By ensuring that institutions engaged in deliberative democracy have arenas through which citizens propose and debate issues for the political agenda, this objection seems nullified. If these institutions can act across communities and states, through the use of social media and online translators people can engage with each other on a local, national and international level.

Habermas advocated such a communitarian approach to democracy based upon mutual communication. In this way deliberative citizenship can use narratives of shared experience to address thinner concepts of liberal theory and particular interest groups. John Dewey termed this type of deliberative vision as a ‘shared way of life’. For Immanuel Kant, without ‘enlarged thought’ or public engagement in the decision-making process that includes other perspectives there is a failure in the human community to live wisely. If one loses touch with public conversation one becomes sensorily deprived ( Boyte, 1995). Addressing issues in the public sphere that involve marginalised social groups, such as indigenous, disabled, or ethnic minority groups, a necessary part of the political process is allowing those groups to become engaged in decision-making. Approaches to this could be through the convening of town meetings where citizens can be involved in discussing problems, and ensuring that election coverage gives voices to a broad range of citizens, especially those that are marginalised, as well as representatives. Civic journalism also can play a role in revealing conditions that may be hidden from the general civic polity (Sirianni and Friedland).

To ensure that institutions work within the desired parameters of a deliberative democracy, it is necessary to understand that material inequalities usually mean political inequalities. Being from a remote or poor community can mean that you have little chance to engage in the democratic process because of lack of access. Therefore, political parties that are able to be supported through public funding are an important enabling feature of deliberative democracy. In this way material disadvantage in the political arena can be overcome and ensures the manifest equality that is a part of the Rawlsian view. Also, by providing a diverse enough range of issues parties can ensure that debate is not restricted to certain issues and provide more open-ended accounts that can properly inform diverse understanding of the common good (Cohen, 1997).

Objections to deliberative democracy on the grounds that it is either too inclusionary or exclusionary are counteracted by methods of storytelling that include people who might otherwise have their voices silenced. Deliberative democracy can provide a solution to the challenge of pluralism in its insistence that participants are able to engage with each other equally and with liberty of deliberation. Critical reasoning is essential for deliberative democracy because it helps to take the decision-making beyond personal preferences and beliefs. Deliberative democracy should also be viewed as an egalitarian approach. Furthermore, through such a Rawlsian egalitarian approach the difference principle can apply and reconciliation between the general community and disenfranchised groups can occur. This is especially important when it comes to redressing historical injustices.

Deliberative democracy is a way in which those who have suffered from historical injustices can be included in the process of decision-making in an attempt to resolve their issues. Elements of affirmative action are advocated to become part of the arena of deliberative democracy to ensure that those people whose voices are usually silenced, such as the marginalised or oppressed, are included in the decision-making process. Liberty and autonomy are able to be protected in the process of deliberative democracy through public decision-making with all free and civil voices being included.

Finally, although modern states are large and populous, smaller arenas, such as social media, where people can voice their opinions on issues are becoming more popular and varied across the political sphere. Civic journalism and publicly funded political parties are also a good way to make sure that those who have little chance to engage in the democratic process have their material disadvantage addressed. Therefore, if the objections to deliberative democracy are addressed then it should be a successful basis for addressing the claims of marginalised social groups.


  1. Bashir, B. (2012), “Reconciling Historical Injustices: Deliberative Democracy and the Politics of Reconciliation”, in Res Publica, 18 (27), 2012, pp. 127-143
  2. Boyte, C.J. (1995), “Beyond Deliberation: Citizenship as Public Work”, Civic Practices Network, viewed on 5 May 2013 on
  3. Cohen, J. (1997) “Deliberation and democratic legitimacy” in Deliberative Democracy: Essays on Reason and Politics , Bohman, James; Rehg, William , 1997 , pp. 67-91
  4. Cohen, J.  (1999),”Reflections on Habermas on Democracy”, in Ratio Juris, 12 (4),December 1999, pp. 385-416
  5. Dryzek, J (2000), Deliberative Democracy and Beyond: Liberals, Critics and Contestations, Oxford University Press Inc. New York
  6. Rawls, J., (1972), A Theory of Justice, Clarendon Press, Oxford
  7. Sirianni, C., & Friedland, L. (n.d.), “Deliberative Democracy”, Civic Practices Network, viewed in 5 May 2013 on emocracy reliescieties. cess ise issues.ther too inclusionary or exclusionary are conteracted by habit these societies. cess is
  8. Young, Iris Marion. “Polity and group difference: A critique of the ideal of universal citizenship” Ethics , 99:2 , 1989 , 250-274


Judy Watson

touching my mothers blood 

1988 etching and black ink

A New York University academic, Fred R. Myers states that an intractable problem with Aboriginal art is that while it exists outside the art system the more it is valued. However, once it is in the art system unprepared viewers do not know how to respond to it because, without the information they receive in an ethnographic museum, they cannot relate it to other contemporary art. They cannot see an informed consensus providing the basis for the work (Myers 1998). This retrogressive view of the adaptability of Aboriginal art is fortunately not the way it is viewed within the Australian contemporary art world. Changing attitudes have allowed both remote and urban artists to benefit from a growing popular interest. Aboriginal artists have extended the parameters of how their art is viewed, and this has allowed them to present their work in new contexts such as installation art and photography. This essay will explore the background to the advent of the careers of the artists Gordon Bennett, Robert Campbell Jnr, Fiona Foley, Tracy Moffatt, Lin Onus and Judy Watson. It will also explore how these artists have contributed to change through their work.

By the 1970s, viewing Aboriginal art through a primitive paradigm was becoming unpopular. New ways were being developed to look at global arts and liberate them from the pigeon holes of Western art history. An exhibition in Paris in 1989, Magiciens de la Terre, attempted to challenge primitivist paradigms by showing the work of fifty artists from the West together with a similar number of artists from non- Western traditions. The exhibition presented all the artists as ‘contemporary’ with an example being a huge mud circle painted on a wall by the British environmental artist Richard Long, alongside a ground sculpture by a group of Aboriginal artists from the Yuendumu community in Central Australia (Morphy 1999).

The background to this exhibition began in the early 1980s when, for the first time, Aboriginal artists were included along with other contemporary white artists in the Sydneyexhibition of Perspecta 1981. In 1983, the Musee d’Art Moderne in Paris exhibited a large ground painting made by twelve Warlpiri men from the Lajamanu community. The ground painting’s ephemeral quality reflected the exhibition’s theme of Dream and Reality. It also created an avant-garde interest because it was an ephemeral ‘dematerialized’ art object and was considered to follow on the legacy of avant-garde challenges to mainstream expectations of an object-orientated art world (Myers 1998). However, although the recognition of Aboriginal art as being contemporary rescued it from being marginalised, it was only the art of remote communities in the north and centre ofAustralia that were achieving recognition. The art of the south that was being done by Aboriginal people in urban and rural areas remained unrecognized in what W.E.H. Stanner called ‘the great Australian silence’ (Morphy 1999).

Although Aboriginal artists in south-eastern Australiacontinued to produce art and craftworks, and some such as Ronald Bull (1942- 79) gained a reputation in the art world, they were negatively viewed as either producers of tourist art or, if they were mainstream contemporary artists, as being assimilated into Western culture. In 1993 the Aratjara Exhibition that touredEurope attempted to rectify the situation. The curators adopted the broad conception of Aboriginal art because, as the art historian Ian McLean notes, it was ‘not until 1990 were there signs of an institutional shift towards the inclusion of urban Aboriginal artists’ (Morphy 1999, p.378). Many of the artists included in this exhibition had been developing from the 1970s onwards in the art world and art schools of urbanAustralia. They drew their inspiration from many different sources reflecting the diversity of their backgrounds. Many found inspiration through personal pilgrimages back to the country of their forebears or in visiting fellow artists in remote communities (Morphy 1999).

Dijon Mundine facilitated communication between Aboriginal artists in the south-eastern states and those in Central Arnhem Landcreating ‘an environment of shared experiences in which mutual understanding developed’ (Morphy 1999, p. 392). Some of the artists that visited Arnhem Landduring this time were Campbell, Fiona Foley (b.1964) and Gordon Bennett (b. 1955). Bennett, a Brisbane-based artist, says that his paintings are ‘an ethnography of representation’ (Morphy 1999, p.399). He characteristically uses a representational system to draw complex analogies between Western art history and the colonial domination of Aborigines. In Outsider (1988) he uses Vincent Van Gogh’s Bedroom at Arles (1889) to show a headless Aboriginal person standing over a bed with two classical heads lying upon it. This postmodernist appropriation seems to challenge both his understanding of his formal art education and his sense of identity within that framework.

After graduating in 1988 with a Bachelor of Fine Arts degree, Bennett had first major solo exhibition in 1989 and has since achieved critical acclaim. He continues to engage his work in questions of cultural and personal identity (National Gallery of Victoria 2008). He describes this personal journey: “I was socialized into a Euro-Australian system of representation which included an art school education. However, my approach to aesthetics is to seek to extend my concepts of it and by extension to expand my concepts of representation’ (Morphy 1999, p.403). His paintings include much graphic detail, narrative, words, grids and commercial logos During the 1990s his  Home Décor series uses the aesthetics of the De Stijl art movement to depict stylized Aboriginal figures, (appropriated from the work of 1940s print artist Margaret Preston), as decorative artefacts entrapped upon a Modernist grid. After travelling toNew York in 1998, he developed a street-style appropriated from the 1980s neo-expressionist Jean-Michel Basquiat to convey the graffiti of racial and political activism.

The complex nature of the influences and history that involves much contemporary Aboriginal art is exemplified in the work of Fiona Foley. After graduating from the SydneyCollegeof the Arts in 1986, Foley, along with other ‘urban’ artists such as Tracy Moffatt, Bronwyn Bancroft and Michael Riley, was a founding member of the Boomali Aboriginal Arts Cooperative in Sydney. She has worked in many different types of media and became well-known for her collaboration with the artist Janet Laurence on the installation The Edge of Trees (1994) for the Museum of Sydney (Allas 2008). Drawing on other Aboriginal art forms, Foley’s work becomes a commentary on the history of racism and oppression. The sculpture The Annihilation of the Blacks (1986) looks much like Fish on Poles (1962) an Aurukun sculpture that formed the focal point for a ceremonial dance. Foley’s sculpture, rather than being hunted fish, show dead bodies of Aboriginal people being hung upon poles. Also, in 1996 she made a ground sculpture much like traditional ground sculptures. Using flour as a material signified its importance in subjugating Aboriginal people in the nineteenth and twentieth centuries. Foley’s photographic work, such as Native Blood (1994), explores the Western representational genre through photographing herself as an ‘erotic primitive’ (Morphy 1999). Again, like Bennett, she works from the position of postmodernism to change historical context.

The academic Chris Healy describes Foley as a witness; ‘her work is all about determined efforts of remembering- bearing witness to both specific instances and pan-Aboriginal experiences of colonialism- and refusing to remain silent’ (Healy 2003). Originally from FraserIsland, also the birthplace of the poet Oodgeroo Noonucal, her work brings a connection between art, Aboriginality, and place. Djon Mundine observed about her work; ‘this raw material- [is] a form of cultural memory- from FraserIslanditself… For Foley, this was an art practice carried out in a custodial role, a way of reclaiming the history of her people and their land’ (Healy 2003). In her piece Lie of the Land (1997), Foley lists the names of objects traded with Aboriginal people in the 1835 ‘treaty’ with John Batman. These words are engraved on seven sandstone slabs three metres in height and effectively records on giant headstones the objects which cost so many lives (Healy 2003).

While the urban Aboriginal art movement has grown in significance since the 1990s, the focus of it being somewhat marginalised has changed into it joining, without differentiation, to mainstream contemporary art. With this change, artists such as Bennett, Foley and photographer Tracy Moffatt (b.1960) insist on their recognition as artists not simply ‘Aboriginal artists’ (McCulloch 2001). Moffatt explores issues of race, history and gender through staged Surrealist photographs and films. Nice Colored Girls (1987) was a film that staged contemporary encounters between Aboriginal women and European men montaged with references to colonial history and racist attitudes (Morphy 1999).

Like Bennett and Foley, Moffatt was born in Brisbane, and took her first snapshots at the age of 13 in the backyard. These formed a series of coarse-grained off-set prints called the Backyard Series (1998), with one of the photos featuring a nativity scene played by children. Moffatt was adopted into a white family and these garden photographs reflect both the normality and surreal undercurrents which strain relationships in society. The film Night Cries: A Rural Tragedy (1989) is an ambiguous story about the relationship between an elderly white woman and her half-Aboriginal child (Versloot 2000). In a Moffatt wrote to theNew York curator Lynne Cooke she explained: ‘Making art is quite therapeutic, like chopping vegetables, it calms me and keeps me off the streets’ (Moffatt 1997). She went on to state how important it is to advance your art and be influenced by others; not to be scared of taking anything new. She also states that her influences were mainly women artists such asFrida Kahlo,Georgia O’Keefe and the photographer Anne Brigman (Moffett 1997).

Lin Onus (1948-1996), who was also introduced to the artists of Arnhem Land by Mundine, had a different background to Foley, Bennett and Moffatt. His art also grew from a personal pilgrimage, but he was born in Melbourne where his father was an Aboriginal entrepreneur and craftsman, and his mother was Scottish. Onus grew up in an atmosphere full of Aboriginal art and, although he had no art school training, by the age of seventeen his early paintings were being sold by his father. These paintings were landscape inspired by the work of Albert Namatjira (1902-59) and Ronald Bull. However, the late 1970s and early 1980s brought a change in his work inspired by Trevor Nickolls (b.1949), an Aboriginal artist who went to art school in the early 1970s and was exposed to a wide range of contemporary art. He then spent much time in Arnhem Land and was taught clan paintings by artists such as Jack Wunuwun and Johnny BulunBulun. He painted a series of portraits of these artists in a hyperreal style on a background of their own paintings.

Towards the end of his life Onus turned increasingly to sculpture, using parody as a theme. His group Dingoes (1989) are realistically formed but painted in ochred colours of the Aboriginal flag. The group illustrates the life cycle of a dingo and includes a dingo breaking through a dingo-proof fence which was, according to Onus,  ‘a commentary on the treatment of these native animals which in Aboriginal eyes approximates the treatment of Aboriginal people themselves’ (Morphy 1999, p.391). He also used three-dimensional installations to display his strong sense of irony and humour. Fruit Bats (1991), is an example of the cross-cultural references and meticulous detailing for which he became so well-known (McCulloch 2001).

Aboriginal art has now become part of the mainstream in contemporary art inAustraliaas it is collected by the same institutions, exhibited within the same gallery structures, and written about in the same journals. This has come about because of the struggle by Aboriginal artists to have their work incorporated rather than assimilated into the institutional structure. Artists such as Judy Watson (b.1959) show how the adaptability of Aboriginal art contributes to an overall push in it being judged on its aesthetic qualities rather than its story-telling properties (McCulloch 2001).

Watson uses painting, sculpture and print media to create complex, subtle works that evoke the spirit and feeling of place. Her style is predominantly non-figurative, using the texture and surface qualities of the painted canvas, lithographic stone, or plywood base to express meaning. Her set of sculptures the guardians/ guardian spirit (1986-87) represent the matrilineal part of her family. The figure forms allude to termite mounds and the spirits that they represent. Many of her paintings are designed to hang without frames like textiles (Morphy 1999). Another Brisbane-based artist, in 1990 she was able to experience her Aboriginal heritage when she visited her grandmother’s country in north-westQueensland.

Although art from the south-east of Australia generally fits into a global category of contemporary art that emphasizes individual style, there are common themes and patterns of influence that distinguish Aboriginal art. Many artists draw on themes of their identity, past and also shared experiences of oppression. The subject matter of Robert Campbell (1944-1993) ranged from the history of racism in rural NSW to its mundane existence. Growing up in Kempsey, he learnt to draw at the primary school at Burnt Bridge Mission where he also helped his father decorate boomerangs. Whilst working as a seasonal worker around Kempsey and a labourer in Sydney, he developed what Djon Mundine calls a ‘confident’ and ‘idiosyncratic’ style (Mundine 2008) painting for tourists and local art shows using available materials.

Campbell’s work is both humorous and insightful and he wrote: ‘As an urban Aboriginal artist my work does not look “typically Aboriginal”… My paintings are in fact very much what I feel in my own heart. Very personal’, (Morphy 1999, p.380). A characteristic of his work is the contrast between the bright optimism conveyed in the colours of the paintings and the dark themes they explore. In Death in Custody (1987) he documents an important issue of contemporary Aboriginal politics; that Aboriginal people are the most imprisoned segment of the Australian population and the number of young men who die in custody (Morphy 1999).

It is because of the starkness of the statistics of Aboriginal poverty, infant mortality, sickness, and prison populations that these artists continue to address these issues. However, this should not necessarily pigeon-hole them as “Aboriginal” artists. Their work is political as well as being concerned with identity. These are subjects which interest many contemporary artists. By extending the boundaries of popular response through the use of new contexts, these artists have been able to change attitudes to the way their art is viewed. Furthermore, there is a need for Aboriginal artists to continue to explore their Aboriginality and through their work, aid non-Aboriginal people in understanding the impact of racism and disinheritance.


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