A Northern Territory supreme court judge has said antiracism is a “religion or a cult” and the fear of being called a racist is preventing people from “speaking honestly” about violence against Aboriginal women.
Justice Judith Kelly told a gathering of women lawyers there was “not a lot” lawyers and courts could do about domestic violence against Aboriginal women that was not already being done.
“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 ‘antiracism’ religion,” Kelly said in the 26 August speech.
“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,” she said when quoting figures from a 2011 report.
“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.”
Kelly listed a range of things she thought people could do more broadly to tackle domestic violence. She said people could call triple zero if they saw or heard someone screaming, flagged the need for more money for women’s shelters in many communities and suggested people could write “a letter to the paper” or “do whatever it is people do on social media” to raise awareness such as “crowd-funding”.
She also said there was a “cultural component” to the violence inflicted on Aboriginal women by Aboriginal men in the Northern Territory.
“Some communities prioritise the interest of the male perpetrators over that of the female victims,” she said.
“There is the culture in some communities that tolerates violence against women and others; that blames the victim and prioritises the interest of the male perpetrators over the female victims: that, in my view, can only be changed from within those communities.”
Talking about the problem was difficult, Kelly said, due to “an ideology of supposed ‘antiracism’ which 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.”
She acknowledged there were “deep societal disadvantages … improvements in health, housing, education, bringing jobs to the bush should be amenable (at least partly) to amelioration through political and economic action from mainstream Australian institutions – in conjunction with Aboriginal communities who generally know best what they need.”
The judge wrote in her speech that past Australian governments had racist policies and the community had racist attitudes “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 was not racist, Kelly said. “Most folk would almost rather be branded a paedophile than a racist.”
She made pointed reference to comments made at this year’s Garma festival by Arrernte woman and the director of the Northern Territory Aboriginal Justice Unit, Leanne Liddle, who was named 2022 NT Australian of the Year for her role in delivering the landmark NT Aboriginal justice agreement.
The agreement was founded on research, evidence and the views and experiences of Aboriginal territorians collected through 160 consultations. Over seven years, the agreement aims to reduce offending and imprisonment of Aboriginal people in the NT, engage and support Aboriginal leadership, and improve justice responses and services.
While acknowledging the “many useful and positive things” Liddle had said in the course of her work, Kelly was critical of her for “blaming ‘structural racism’ for trapping Aboriginal people in the Northern Territory in jails and poverty, without saying what that means”, and rejected Liddle’s statement that the judiciary and judges were “handcuffed to a broken idea of justice”, saying that claim was not meaningful, true or helpful.
“I do not for one moment suggest that Leanne is one of the ideologues, but it is important to call out false claims of individual racism and false claims of systemic racism – as it is to call out racism where it occurs. It is not helpful to see victimisation where it doesn’t exist,” Kelly said.
Liddle said on Thursday: “I respectfully disagree with Justice Kelly’s comments.”
“I stand by my Garma speech and the overwhelmingly positive feedback I have received since goes to show that these issues strongly resonate with many people in the community,” she told the Guardian.
Earlier this year, Kelly gave an interview to the Australian newspaper, in which she said Aboriginal women were trapped in an epidemic of extreme violence brought about by intergenerational abuse and disadvantage “and a culture that protects perpetrators before victims”.
Following that report, Territory Criminal Lawyers applied for Kelly to recuse herself from hearing the plea of a client who was facing charges of domestic violence against his domestic partner.
Kelly found that Territory Criminal Lawyers had not established a “logical connection” between the general remarks made about domestic violence against Aboriginal women and “the asserted risk that the judge might not be seen to bring an open and unbiased mind to assessing relevant factors in sentencing the defendant”. The recusal application was refused.
This article was amended on 1 September 2022 to make clear Territory Criminal Lawyers applied for Justice Judith Kelly to recuse herself, not the North Australian Aboriginal Justice Agency.
