Archives for posts with tag: 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 – 400* people (as of 2019) 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:

*Updated: (2019)


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.


Gordon Bennett, 2008, Retrieved January 23, 2009 from

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from



Allas, T. (n.d), Fiona Foley, Retrieved January 30, 2009 from

Gordon Bennett (n.d.), Retrieved January 29, 2009 from

Green, C., 1999, Beyond the Future: The Third Asia-Pacific Triennale Art Journal Vol.58, No.4 pp.81-87, College Art Association

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from

Judy Watson (n.d.), Retrieved January 26, 2009 from

Ladds, A. (n.d.), The Reconciler, Retrieved January 31, 2009 from

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Mundine, D. 2008, Robert Campbell (Junior), Retrieved January 26, 2009 from

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from

Nelson, R., 2007, Gordon Bennett, Retrieved January 27, 2009 from

Through artists eyes: Tracey Moffatt and Gordon Bennett Retrieved January 29, 2009 from

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from

White, A., 2000, Aboriginal Art: Sacred and Profane, Review of Susan McCulloch, Contemporary Aboriginal Art: A Guide to the Rebirth of an Ancient Culture, Art Journal Vol. 59, No.4, pp.105-107, College Art Association


Judith Ryan wrote about the artist Rover Thomas in her 1993 catalogue essay for the National Gallery of Victoria exhibition of Aboriginal art: ‘As an artist Thomas is not locked inside language patterns or ritual structures of the Western Desert; he looks beyond them to another world of reality and enjoys the freedom to depict this expansively…’ (McCulloch S., 1999). Acquiring his own individual style, Thomas’ paintings are characteristic for their highly textured ochre surface, minimal imagery and sense of space. A restricted palette, in which black usually predominates, leaves an aesthetic impression of a highly resolved abstract painting. As an overview of Rover Thomas’ life, this essay will attempt to understand how he developed so fully as an artist at such a late stage of his life, and why his work had such an individual character.

During the early decades of the twentieth century the cattle industry was established in the Kimberley region of far north Western Australia. The Indigenous people of the area lost all their land as European settlers took it for their cattle stations. These stations then used the Indigenous people as forced labour. Along with Europeans staking claim to these people’s lands, they expected them to acquire the knowledge, skills and attitudes that would make life easier for the settlers. However, it also suited the pastoralists to have a compliant workforce so the Aboriginal people were also left much to their own devices, allowing them to sustain the values and traditions of their tribal lives (Carrigan B., 2003). Rover Thomas Joolana was born into this new and relatively dependent relationship in an Aboriginal camp around 1926 near Well 33 on the Canning Stock Route. His birth was not officially recorded, but it is known that both his fathers (his actual father and the man who raised him) were Wangkajungka, his mother Kukaja. These are two adjacent language groups in the Kimberley. Thomas never knew first hand the world his parents had known before white settlement, but still was able to understand the rules of Dreaming which continued to shape the local Indigenous world.

When he was about ten his mother died and he was moved to Billiluna Station, where he worked as a jackaroo and was initiated into traditional law by a man from Sturt Creek. Another Kimberley artist, Queenie McKenzie, told of how she sewed Thomas’ scalp back on after it was trodden on by a horse (McCulloch S.,1999). He then worked with a fencing contractor in Wyndham and later the Northern Territory. He eventually returned to Western Australia where he worked as a stockman on the Bow River Station. Later, he worked at the Texas Downs Station for nine years and then Old Lissadell and Mabel Downs stations. He then returned to Texas Downs where he married his second wife. By the 1960s changes in popular views forced the government to introduce new pastoral laws which mandated equal pay for both Aboriginal and non- Aboriginal workers. Unfortunately this saw the majority of Aboriginal workers dismissed as they were no longer a source of cheap labour. They gravitated towards the towns of Fitzroy Crossing and Kununurra. In the eastern Kimberley a camp called Warmun was established by the Gija people at Turkey Creek, whose traditional lands surround Halls Creek to the south.

Back in 1974 when Thomas moved to Warmun, it was a small government reserve and a difficult place to live. It had few facilities and makeshift housing was all that was available. Only a few buildings had electricity and there was no running water. The social conditions were difficult as tensions increased with the expanding and diversified population. Turkey Creek was more of a refugee camp rather than a community; many felt excluded and longed to return to their country, and most were apprehensive of the encroachment of mineral and energy exploration. Fortunately, the prevailing government was interested in Aboriginal conditions and investment in community infrastructure began. A school was to be established, a community store constructed, houses built, a bore sunk, pipes and taps installed, electricity provided and pensions and welfare benefits became available, allowing basic needs to be met. It was to this paradoxical but burgeoning community that Rover Thomas moved to and it became the background for him ‘finding’ the Kurirr Kurirr, a ceremonial narrative dance cycle (Carrigan B., 2003).

Thomas’ story about how he became an artist is entwined with an event in 1974, in which one of his elderly female relatives was badly injured and died after a car accident near Turkey Creek. Her spirit visited him soon afterward and related to him Dreamtime stories and songs. Thomas shared these dreams with his community, who evolved a ceremonial song and dance cycle from them called Kurirr Kurirr (Genocchio B., 2008). The Kurirr Kurirr is an embodiment of the spirit of the old woman who died while being flown to Perth for medical treatment. The narrative sequence of the cycle follows her spirit back across her country; along the way encountering Dreamtime beings, as well as events from the historical past such as a particular massacre. The Rainbow Serpent predominates in Kurirr Kurirr, being associated with the swollen creek in which the accident happened, Cyclone Tracy, and the tidal whirlpool at Derby over which the old woman dies. The Rainbow serpent also underlies this cycle of work in a profound way by linking the region’s diverse language groups and giving them chains of communication and cooperation (Carrigan B., 2003).

As the Warmun community developed this song/dance cycle they travelled and performed it over much of the north of Western Australia, even into the Northern Territory. The most important part of the ceremony was the painted boards, left over from community building work and carried by the dancers. The first of these boards was painted by Thomas’ uncle Paddy Jaminji from the stories that Rover related to him. Jaminji was recognised as the artist of the community as he had been known for his wooden carvings and ochre patterning on boomerangs (Genocchio B., 2008). Mary Macha, a government art consultant was incredibly excited when she saw these boards for the first time: ‘Paddy showed it to me…More paintings were added and, of course they suffered in their travels… But they were powerful!’ (McCulloch S., 1999, p.118). Even though Jaminji was initially not interested in selling them to her, he eventually sold her two sets on condition that she brought him more boards.

However, Thomas perhaps became frustrated at his lack of recognition as ‘Dreamer’ of these paintings and strode up to Mary Macha a few years later and said: ‘Rover Thomas, I want to paint’ (Thomas R., 1994, p.49). At first, Thomas and Jaminji worked together on a level piece of ground then, when houses were built, they were able to paint on the concrete floor. An example of their first collaboration is The Spirits Jimpi and Marginta (1983), depicting the two devils that accompany the spirit of the old woman (McCulloch S., 1999). It was painted in thickly applied ochre pigments mixed with gum collected from the surrounding trees. Later the two artists began to paint on their own and, although these paintings by Thomas and Jaminji could appear to be a recently invented style through which it is hard to see continuity with earlier styles, the Australian National Gallery curator Wally Caruana states that the style is deeply rooted in the traditional pictorial conventions of the east Kimberley rock art. It is also associated with the patterns of body painting traditions (Thomas R., 1994).


Paddy Jaminji and Rover Thomas

The spirits Jimpi and Manginta 1983

natural pigments on plywood

60.0 x 120.0 cm

National Gallery ofAustralia

Jaminji’s paintings show a careful and precise stippling of white clay dots delineating the different coloured forms in the work, whereas Thomas’ own work of 1983, such as The Dog and the Emu at Lake Gregory shows more impatience with the same method. Jaminji is also careful to compose the imagery of his paintings with a certain balanced symmetry while Thomas’ composition is quite haphazard. Most of  Thomas’ work of 1983 is also rough in execution, according to Mary Macha due to his use of bush gums that were mixed with his pigments. It resulted in a rough, loose textured finish that made it difficult for the overpainting of white dots to adhere to the ground. It was when he was introduced to the water-soluble gum of the Kurrajong tree that the artists of Kulumburu used, that he was able to achieve stability and the matt surface that he desired (Rover Thomas Joolama n.p.).


The Dog and the Emu at Lake Gregory 1983

natural pigments on hardboard

46.0 x 61.5 cm

National Gallery ofAustralia

One of the most striking works of that year is Wungurr is the name for that Snake (1983). Two snakes, one charcoal black, the other yellow ochre are entwined forming a powerfully graphic presence on the orange-coloured raw plywood base. Again, Thomas has executed the white dot outlines quickly, with the outer dots of the black snake allowing the yellow snake to become part of the interior space. It is the embodiment of the Rainbow Serpent and depicts the junction at Turkey Creek where the woman had her accident (Thomas R., 1994). An extension to the story of this painting is Ngamarrin (The Snake near Turkey Creek) (1984). It depicts the Snake crawling over the hills, the darker areas representing burnt grass and shadows. Where the serpent shows its head, depicted in lighter ochre with a white dot for the eye, is the place where the car accident happened (Thomas R., 1994). There are three separate colours used in this painting, a large area of dark red-brown which is applied in differing layers of transparency, a lighter more orange ochre that provides a background, and a large central single area of charcoal black that represents the landscape. The painting also shows a more steadfast and persistent effort in its depiction of area, and is a precursor to the later more austere compositions.


Ngamarrin (the Snake near Turkey Creek) 1984

natural pigments on plywood

90.0 x 180.0 cm

National Gallery ofAustralia

A good example of a more simplified composition is Bedford Downs Massacre (1985) which shows a complete break from figurative imagery to illustrate a narrative of an incident that occurred between European and Aboriginal peoples around 1924 in the East Kimberley. The massacre at Bedford Downs relates to an incident in which, after the collection dray loads of wood by the Aboriginal workers, the manager of the station distributes poisoned rations of food to them. Along with the manager’s neighbours, they shoot the victims while they are incapacitated and writhing in agony. They then use the wood to cremate the dead (Thomas R., 1994). The pale ochre that is used in the three key spaces of the painting conveys a sinister image of ash on dark red ground and, along with its title, the starkness of the narrative.

Again, in 1986, he simplifies both his composition and palette further in Lake Argyle. Only two colours are used, charcoal and red ochre, to effectively show a topographical view of the dam on the Ord River. Again the pigments are laid on quickly, with the gum to add translucency, to create four simplified shapes outlined in white clay stippling. Thomas describes it as a place where a star fell during the Dreamtime. ‘The water, lake, go right down… my drawing, water go in there, he go all the way water. Long time ago, but still a hole there’ (Thomas R., 1994, p.58). This still relates to the Kurirr Kurirr cycle in which water, as a manifestation of the Rainbow Serpent, plays a role of transportation.


Lake Argyle 1986

natural pigments on canvas

90.0 x 180.0 cm

National Gallery ofAustralia

Much of  Thomas’ work also relates to places that he has travelled through, and portrays both the intimacy and enjoyment he had through his connection with the landscape. The unusual painting Roads meeting (1987) shows a crossroads where a bitumen road and a dirt track meet. The two outstretched hands are supposed to represent the stop signs on the road. It is unusual because of its graphic, diagonally geometric representation and lack of organic shapes. The hands are similar to hand stencils found in rock art traditions, and seem to be reaching out to each other. It could be interpreted as a conceptual portrayal of the traditional, represented by the dirt track, and the modern, represented by the bitumen road, meeting and reaching out to each other. Thomas was quite individualistic within his community. He lived on his own outside the settlement and spent much of his time working inPerth at his main benefactor, Mary Macha’s, house (Carrigan B., 2008).


Roads meeting 1987

natural pigments on canvas

90.0 x 180.0 cm

National Gallery ofAustralia

Thomas returned to the theme of the Bedford Downs massacre in 1988 with the painting Kananganja (Mount King). Here, the large main shape is representative of Mount King, and the long, thin areas are where it casts its shadow. The small circle in the lower left corner represents the place where the bodies of the poison victims were burnt. Verse 15 of the Kurirr Kurirr Cycle describes how Thomas dreamed the event:

The shade from the hill comes over and talks in language: ‘munga lurrlungu’,

The Devil Devil and woman look around and see the shadow [spirits] of people killed long ago by Kartiya [white people].

They see where the bodies had been burned.

They make a song about those people.

                                                                                                Rover Thomas (Thomas, 1994, p. 26)

The painting, like the first Bedford Downs Massacre of 1985, is sombre in its choice of colours. There is little contrast between the tones of orange-yellow ochres chosen, except for the dark red circle where the bodies were burned.


Kananganja (Mount King) 1988

natural pigments on canvas

90.0 x 180.0 cm

 National Gallery ofAustralia

Grugrugi: Owl 1989 is a return to full figurative representation and uses a more detailed motif of a previous painting in 1984, Ngarrangkani. The white ochre owls are depicted in a vertically reverse form of each other, yet are similar in most other respects. They are Dreamtime spirits, maybe the spirit of the woman, and bear a resemblance to the Wandjina figures through their large eyes and simplified noses and mouths. The eyes of the upright owl show red amongst the browns and pale yellow ochres of the rest of the painting.

Another massacre depicted as part of the Killing Times series is the Ruby Plains killing in which the owner and manager of the Ruby Plains Station come across some Aboriginal men butchering a stolen bullock. They shoot and decapitate the men and place their heads in a hollow tree. The men’s friends are alerted to where they are by the crows that gather over the dead bodies (Thomas R., 1994). Ruby Plains killing 2 (1990) shows the heads of the murdered people in the hollow of the tree trunk, as well as depicting the place where the murders happened through the use of a topographical plane. It shows the Ruby Plains Station as a circle in the upper part of the painting and the road to Balgo which extends in two ways from it. The longer black lines represent the creek which feeds into the OrdRiver then Lake Argyle (Thomas R., 1994). The depiction of such murders by Thomas seems to suggest that his intention was to create an historical record of the events which had never been officially recorded, other than by Aboriginal oral tradition.


Ruby Plains killing 2 1990

natural pigments on canvas

90.0 x 110.0

National Gallery ofAustralia

In 1983 Thomas painted a very simple composition called The Rainbow Serpent destroyed Darwin which illustrated the movement of Cyclone Tracy. In Cyclone Tracy (1991) he painted a more elaborate version of these events. The black line rising from the bottom of the painting shows the starting place of the wind, then as the line turns and widens into a large space it shows the full force of the cyclone. The yellow ochre lines running into this large black area show more winds feeding the cyclone and the red ochre portrays the wind filled with red dust (Thomas R., 1994).

Looking across from Kununurra they see that Darwin has been flattened by the cyclone.

The Rainbow Serpent destroyed Darwin.

                                                                                                Verse 31 Kurirr Kurirr Cycle

                                                                                            Rover Thomas (Thomas, 1994, p.27)

The painting is significant in being able to successfully convey an effective impression of the crescendo of the cyclone. The black area swallows the yellow ochres like a large mouth. The blackness swallows everything in its path.


Cyclone Tracy 1991

natural pigments on canvas

168.0 x 183.0 cm

National Gallery ofAustralia

 In 1991 Thomas went on to paint his birthplace on the Canning Stock Route and his father’s burial place, these became the subjects in which he was interested in the latter part of his life (Carrigan B., 2003:78). He painted the things that were important to him and were directly related to his own experiences Mary Macha relates that he was a traveller and did not constrict himself to painting ‘his own country’, saying in an interview: “Once, when he was painting down here, someone asked him, ‘is that your country?’ And he just laughed and said, ‘no I steal anybody’s country’” (Carrigan B., 2003, p.63).  After being the first Aboriginal artist, along with Trevor Nicholls, to represent Australia  at the Venice Biennale of 1990, Thomas received a major retrospective at the National Gallery of Australia in 1994. However, his health was failing and after 1995 he was only able to paint sporadically. Illness and failing eyesight were taking their toll when he died in 1998. His unique vision and style reflect his affinity and understanding of the landscape and events. Also, without being a part of any major international art movement, the power and the simplicity of his work cannot properly place his work in the realm of contemporary abstractionism, but reveals it as a visualization of transcendental thought.


Ackerman, K. 1998, Rover Thomas- tribute Retrieved: 4.1.09

Artists Biography- Rover Thomas Joolama c. 1926-1998   Retrieved: 4.1.09      Retrieved: 4.1.09

Carrigan, B. Ed. 2003, Rover Thomas- I want to paint, Heytesbury Pty Ltd T/ as the Holmes a Court Gallery,Perth

Gennochio, B. 2008, Dollar Dreaming- Inside the Aboriginal Art World, Hardie Grant Books,Melbourne

Mc Culloch, S., 1999, Contemporary Aboriginal Art: A guide to the rebirth of an ancient culture, Allen and Unwin,Sydney

Morphy, H, 1998.  Aboriginal Art, Phaidon Press,London     Retrieved: 4.1.09

Thomas, R. 1994, Roads Cross- The Paintings of Rover Thomas, The National Gallery ofAustralia,Canberra