Lawyers and academics have criticised comments by a Northern Territory supreme court judge that antiracism was becoming a “religion”, preventing honest discussions about the “epidemic of extreme domestic violence” against Aboriginal women.
In the 26 August speech to a gathering of female lawyers, Justice Judith Kelly said there was a “cultural component” to the violence inflicted on Aboriginal women by Aboriginal men in the territory.
“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,” Kelly said.
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”.
Kelly said terms like “institutional racism” and “systemic racism” were invidious and ascribing all disadvantage to “racism” was unhelpful and dishonest. “It is simplistic and it trivialises genuine racism, which should never be tolerated,” she said.
But the principal solicitor of the National Justice Project, George Newhouse, said the unequal application of NT laws was evidence of systemic racism.
“Justice Kelly should learn more about how the rule of law in the NT produces or sustains racial inequity between groups,” Newhouse said. “Whilst NT laws ostensibly apply equally, they are not exercised that way.”
Newhouse said that according to the NT government’s own reports, police are more likely to arrest or charge an Aboriginal person than a non-Aboriginal person, there are significant disparities in sentencing, Aboriginal Territorians were taken into custody in 75% of proceedings while non-Aboriginal Territorians were taken into custody 57% of the time, and they were far less likely to be granted bail.
“These systemic disparities are based on a rock-solid statistical evidence base and ground the allegations of institutional racism and systemic racism in the NT,” Newhouse said.
“Justice would be better served by examining and addressing the causes of the differential outcomes in the justice system instead of deriding those who object to institutional racism and systemic racism by demonising them as members of a religion or cult and suggesting that people who use the terms trivialise ‘genuine’ racism. We can fight violence against women and systemic racism simultaneously.”
Russell Marks, a criminal defence lawyer and adjunct research fellow at La Trobe University, questioned Kelly’s evidence for claiming people were “self-censoring” for fear of being branded a racist by the ideologues of the new “antiracism religion”.
“Justice Kelly says it’s ‘unhelpful’ that charges of racism are made about the territory’s justice system without evidence to support them. But where is the evidence that a ‘cult of antiracism’ is preventing people from talking about the issues, as she claims?” Marks said.
“Unfortunately, Justice Kelly is the latest in a long line of settler authority figures who claim for themselves the right to decide what is and is not racism. The racism of Australia’s justice system is clear: it’s a system that was imposed without the consent of the people who were already living here. Australian law still prohibits courts from taking into account Aboriginal laws, culture and dispute resolution systems.”
By quoting statistics on the violence Aboriginal women experience and placing such violence as occurring solely in the domestic sphere, Kelly inferred that the perpetrators of such violence were only Aboriginal men, Queensland University of Technology professor Chelsea Watego said.
“The fact remains that Aboriginal women experience violence that extends beyond the domestic sphere and includes at the hands of non-Aboriginal people and even from police officers, all of whom they are unable to rely on [for] protection from the legal system,” Watego said.
“To suggest that racist attitudes are an artefact of the past and to make broad claims that ‘on the whole, modern Australian society is not racist’ is surprising given how recent the Northern Territory emergency response was, which required suspending the Racial Discrimination Act because it was explicitly racist.”
A spokesperson for the NT attorney general, Chansey Paech, said it was inappropriate to comment on the matter and referred questions arising from Kelly’s speech to the NT minister for the prevention of domestic, family and sexual violence, Kate Worden.
Comment was sought from Kelly and Worden.
