Aboriginal women are dying, it’s not racist to discuss it

Northern Territory Supreme Court judge Judith Kelly.

I have been asked to speak on the subject of domestic violence against Aboriginal women in the Northern Territory.

In fact, my speech has dual themes. First, domestic violence against Aboriginal women and what we as lawyers and courts can do about it, which (unfortunately) is not a lot.

Second, I want to talk (briefly) about a difficulty that has grown up in even talking about the problem – that is an ideology of supposed anti-racism that is beginning to assume the dimensions of a religion or a cult under the influence of which people and institutions are casually and inaccurately labelled as racist without any evidentiary basis for the charge.

I say an ideology of supposed anti-racism because the underlying assumption of this ideology appears to be that Aboriginal people must exist in a permanent state of victimhood, an assumption that is, in fact, deeply racist.

Further, among those in thrall to this ideology, labelling someone or something racist seems in many cases to be an end in itself – not a prelude to remedial action but a substitute for it.

Earlier this year I agreed to do an interview with Amos Aikman from The Australian. The article based on that interview was headlined “ ‘Epidemic of violence’ plagues women” and appeared in The Weekend Australian on June 4. Some of you may have read it. That article followed two others that described horrific violence inflicted on several women in Yuendemu by family members and quoted from sentencing remarks by Justice Jenny Blokland and by me. I gather that is why I was asked to speak on this topic.

But really, what is there to say? It’s bad? It’s bad. It’s really bad.

I have twice in the past invited television cameras into my courtroom when sentencing – first, a man who bashed his wife to death in 2015; then a man who bashed and then stabbed his partner to death in 2021. (The victims in each case were Aboriginal women.) Both times I did so not just to draw attention to horrific acts of domestic violence but because in both cases people witnessed what was happening and did nothing. In the 2015 case, around 20 people saw or heard that woman being bashed and crying out for help and not one person intervened or even diall­ed 000.

Everyone is willing to talk about the over-representation of Aboriginal men in prison. It has been called Australia’s shame and so it is. But, as I have said before, the stream of Aboriginal men going to prison is matched by a steady stream – a river – of Aboriginal women going to the hospital and to the morgue. It is an epidemic of extreme domestic violence and I’m certainly not the only one to point it out.

Between 2000 and 2022, two Aboriginal men were shot by police, both times followed by massive press coverage, calls for inquiries and so on. In that same period, 65 Aboriginal women were killed by their partners and in each case you would have been flat out seeing a small report on page 5 or 7 of a local newspaper – nothing nationally.

Indigenous women are approximately 10 times more likely to be the victim of an assault than non-Indigenous women, and 32 times more likely to end up in hospital than a non-Indigenous woman victim. What can we as lawyers – and the courts – do about it? Pretty much nothing.

In my experience, both prosecutors and defence lawyers do a good job and as a result, in most individual cases, justice according to the law can be said to have been done. We judges keep making the same sentencing remarks – talking about the prevalence of domestic violence, emphasising general deterrence, personal deterrence for repeat offenders, denunciation, community protec­tion and so on – for all the good it does anyone.

We imprison the offenders. Judging by the recidivism rate, that doesn’t do anyone much good either, although in an article in Balance some years ago that I have just read, Sally Gearin referred to incarceration of offenders as at least “giving some respite” for victims – which is an interesting concept.

Aboriginal people still make up about 30 per cent of the NT’s population and still make up between 80 and 90 per cent of the prison population – and a significant percentage of that prison population are Aboriginal men in prison for serious crimes of violence against Aboriginal women.

Returning to my second theme – the difficulties being experienced in even talking about the problem: Talking honestly about the problems that exist and encouraging honest and open public debate would have to be a good start. And by speaking honestly about the problem I mean not self-censoring for fear of being branded a racist by the ideologues of the new anti-racism religion.

Eschew the invidious terms institutional racism and systemic racism unless there is at least some evidence the institution in question does actually have racist policies – that is, systematically treats Aboriginal people less favourably on the basis of their race.

Ascribing all disadvantage to racism is unhelpful and dishonest; it is simplistic and it trivialises genuine racism, which should never be tolerated.

There is racism and there are racists in our community, and we should call them out.

In the past, Australian governments had racist policies and a significant portion of the community had unthinking racist attitudes. These things should be acknowledged, and those times have left a legacy of disadvantage, but the fact that some contemporary problems have been caused or contributed to by racism in the past does not mean that they are the result of racism today.

On the whole, modern Australian society is not racist – and I think the majority of contemporary Australians are not racist. In fact, as a society we have become super sensitive to any charge of racism.

Despite this, the term racist is bandied about in contexts where it simply doesn’t apply. This starts with the ideologues but it is also spreading into general public discourse, where it is often a distraction.

This is an edited extract from a speech given by Justice Judith Kelly at the 2022 Women Lawyers’ Drinks on the Supreme Court Balcony in Darwin on August 26. The full speech is online.