It’s clear what was behind Kumanjayi Walker’s killing. So why can’t we say it?

“I cannot positively conclude that Mr Rolfe’s values (which included racist attitudes and dehumanising of Aboriginal suspects) contributed to his decision to pull the trigger of his Glock and discharge Shot 1, although I cannot exclude that possibility.”

This extract from the coronial report of the Kumanjayi Walker inquest reminds me of the March Hare in Alice’s Adventures in Wonderland: you should say what you mean. Former police officer Zachary Rolfe is racist, the Northern Territory Police Force is institutionally racist, but NT Coroner Elisabeth Armitage does not know for certain if racism played any part in Walker’s killing.

The 1991 final report of the Royal Commission into Aboriginal Deaths in Custody had more clarity and conclusiveness to its findings of systemic and structural forms of racial discrimination. The halfway house of the coronial report delivered this week demonstrates how we have regressed from 34 years ago. Racism: we dare not speak its name.

Kumanjayi Walker … What will be the legacy of his “avoidable death”?Credit: Graphic illustration: Michael Howard

As a lawyer who has worked on the intersection of Aboriginal people and the law for 25 years, including as co-commissioner in the Queensland commission of inquiry into youth detention centres and my independent review into NSW Aboriginal out-of-home care, Family is Culture, I have sought to articulate and evidence where relevant and possible the operations of racism within Australian legal and administrative systems.

This is not a straightforward task. It’s difficult to explain to Australians what racism and institutional racism is. Unlike other jurisdictions, such as the United States, Australia lacks a strong civic tradition of engaging openly with race and racism, and we did not undergo a civil rights era that catalysed structural reform. This is despite the political economy of the Australian nation being anchored in race and racism. As Noel Pearson has argued about the parsimony of the frontier wars, the political economy of the colonial state was the killings.

We continue to operate under a constitution that retains a “races power”, an explicit power allowing the federal parliament to legislate adversely on the basis of race. A 15-year-long journey to constitutional recognition began with this very concern in 2010, but the process ended in 2023 with barely a mention of this constitutional history.

Research conducted after the 2023 Voice referendum found the primary reason Australians voted no was that they didn’t want “race” in the Australian Constitution, unbeknownst that the Constitution, its drafting and text were imbued with race and racism. The appalling lack of civics education in Australia is not the sole reason that many Australians don’t understand the race aspects of our constitutional history and system, but there remains widespread reluctance to confront the racial foundations of our public institutions, whether the exclusionary assumptions underpinning the 1890s constitutional conventions, the legacy of the White Australia policy, or the structural inequalities that persist in contemporary policing and criminal justice systems.

The Yoorrook Justice Commission, Victoria’s first formal truth-telling inquiry, recently tried to map the contemporary manifestations of this aspect of the criminal justice system in the state’s child protection and in policing. Before Yoorrook, it was set out clearly in what were in fact Australia’s first two truth-telling investigations, the Royal Commission into Aboriginal Deaths in Custody and the 1997 “Bringing Them Home” report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. But truth commissions and the global truth-telling “transitional justice” industry are notoriously bad at social change and in having recommendations successfully implemented, which is why those royal commission recommendations flounder.

Indeed, some are calling for a federal truth-telling commission while simultaneously lamenting the non-implementation of those royal commission recommendations. It speaks to the absurdity of the status quo and post-referendum fragmentation in Indigenous affairs to call for the same form of inquiry to achieve something we unequivocally know it can’t.

What can history tell us? While formal policies of compulsory racial segregation established by protection legislation ended in the latter part of the 20th century, there was little institutional reckoning with the role police had played in administering that regime. Police forces, which for over a century had played a key role in the enforcement of the system of Aboriginal reserves, missions and curfews, were reconstituted in the post-protection era as ostensibly neutral enforcers of the rule of law with no corresponding effort to reform the institutional culture or confront its origins in racial control.

The phenomenon of over-policing – where Aboriginal and Torres Strait Islander people, particularly youth, are disproportionately surveilled, detained and prosecuted for conduct that may not attract the same police or judicial response when committed by non-Indigenous peers – is not speculative. It is extensively documented across decades of institutional review and legal analysis, including the 2017 Australian Law Reform Commission’s Pathways to Justice report. These are not isolated or anecdotal claims. They form part of a consistent body of empirical and legal evidence that demonstrates a structural problem embedded within our institutions.

But equally confronting, for those calling for more truth-telling to replace structural change, is that Australians say they know the truth but want to move on. That’s a truth that needs to be grappled with. This is possibly why the sky did not fall in with the Yoorrook findings of genocide in Victoria. They were, by and large, not controversial because this was already historically supported, perhaps demonstrating that societies do move on and the temporal, ideological motivations of the Aboriginal history “culture wars” have disintegrated with the passage of time.

It has been more than three decades since the release of the deaths-in-custody royal commission report, Australia’s first truth-telling commission. There is much sentimentalising of the report. The inquiry emerged in a markedly different Australia, an era in which Australians trusted public institutions and politicians. Its findings were released when Aboriginal political structures were more unified and institutional forms such as the Aboriginal and Torres Strait Islander Commission provided a national platform for Indigenous voices. In the intervening years, the landscape has changed significantly. Aboriginal communities have experienced fragmentation, and the post-ATSIC policy environment has become saturated with a proliferation of individuals and organisations purporting to represent Aboriginal interests, often in unaccountable ways, and which commodify identity and political authority.

The royal commission was unequivocal in its central finding: that systemic change would be achieved only by reducing Aboriginal contact with the criminal justice system altogether. This imperative remains as urgent now as it was then. Yet, despite its clarity, much of the contemporary criminal justice response has been directed towards superficial modifications at the sentencing stage, design interventions and cultural overlays that attempt to “Indigenise” the system without altering its foundational logic. These are, to borrow a phrase, cosmetic adjustments, lipstick on a pig that leaves the structural drivers of over-incarceration intact.

The royal commission’s recommendations on non-criminal justice system solutions are a pathway forward. The pursuit of these should not form part of the closing-the-gap monolith that hoovers up all things Indigenous these days – the wicked problem they’ve created to solve the wicked problem.

A core insight of the royal commission, too often cited but insufficiently read, is that communities need autonomy and agency, and the safety of Aboriginal people depends on them avoiding the system altogether, not their adaptation within it. We’ve done the reverse over 30 years and wonder why the gap in disadvantage grows wider.

The royal commission further called for a withdrawal of bureaucratic control and the reallocation of authority to Aboriginal communities. Ironically, the most recent national attempt to institutionalise this principle, the proposed Voice to parliament, was framed by its opponents as an exercise in bureaucratisation, despite its primary aim being to devolve authority to communities and reduce administrative gatekeeping.

In the aftermath of the failed referendum, bureaucratic entrenchment has, if anything, intensified. Critics of over-bureaucratisation have grown conspicuously silent, while initiatives such as justice reinvestment attract significant public expenditure without demonstrable systemic returns. The Justice Policy Partnership, established under the National Agreement on Closing the Gap, is dominated by bureaucratic actors. Several Aboriginal members have made serious accusations about its ineffectiveness. Yet, as is often the case in Indigenous policy, their concerns about the bureaucrats are ignored by the bureaucrats, and the dysfunction continues with no course correction.

Today, the right of self-determination, as articulated by the royal commission, is far from the concept defined then. It has been reduced to “partnership with government”, whatever that means, and in practice it means incorporation via corporations statutes. In this way, self-determination has become synonymous with corporate compliance.

What relevance these observations to the NT Kumanjayi Walker coronial inquest? The second version of the closing-the-gap framework adopted in 2020 pushed the Commonwealth’s constitutional obligations and leadership responsibilities from 1967 back to the states and territories, which were notoriously bad at Indigenous policy.

Now Aboriginal organisations are required, by agreement, to stand side-by-side with state and territory governments which claim to be in partnership with them while they implement draconian and ruthless criminal justice policies that render nugatory the various KPIs of justice, health and wellbeing that the closing-the-gap framework purports to achieve.

The asymmetry and absurdity of the arrangements were evident when the Walker coronial inquest recommended, among many things, diversionary justice programs for Indigenous youth four days after the NT announced restricting youth offenders from accessing diversionary justice programs. Two ships passing in the night.

The federal government has declined the invitation of the Indigenous sector to take more leadership. The most compelling solution here is for the Commonwealth to assume responsibility for Indigenous criminal justice and bring some leadership, accountability and coherency to the sector, if we are serious about the national closing-the-gap agreement and its justice outcomes. Something more serious is needed than the annual performative lamenting the gap.

Professor Megan Davis is the Gough Whitlam and Malcolm Fraser Chair in Australian studies at Harvard University.