Rank Hypocrisy of Courts and Police Exemplifies Systemic Racism Towards Indigenous Australians

Both the NSW courts and NSW police are caught red-handed discriminating against Indigenous Australians

Racial clarifications

Before we even get started on this racism-related post, let's just make sure we're all clear about a couple of things.

First off, when one hears the phrase "Black Lives Matter" (BLM), this isn't a response to the supposed question "which lives matter?" Rather, it's a reflection of today's "racial" climate in which the lives of Black people are cheapened, implying that what is actually said by the phrase BLM is "Black lives should also matter". Its purpose, therefore, is to highlight the devalorisation that Black lives experience in our society. That being so, when one retorts to "Black Lives Matter" with the statement that "All Lives Matter" (as Australian senator Pauline Hanson has, whose related motion in parliament was overwhelmingly blocked by other senators), one is making the devalorisation of Black lives invisible and by extension partaking in racism.

Well you see boys and girls, the truth of the matter is that the little piggie in that George Orwell book had it right all along: All lives matter, but some lives matter more than others (photo by Steve Daggar)

Second thing. Racism is not an issue of discrimination against different "races". Reason being, there is no such things as different races. Simply put, the notion that there's such a thing as different races is no more than pseudo-science; more specifically, it's (a) an outcrop of colonisation and the attempt to make a biological justification for discrimination and prejudice, it's (b) a political appropriation and distortion of neo-Darwinian theories of evolution, and (c) it's an attempt to place those of white European ancestry at the top of a racial hierarchy in an increasingly intermingling globalised world.

If one wants to ditch the pseudo and look solely at the science, a 2002 study published in the journal Genetics showed that there exists larger genetic differences within Africans than between Africans and Eurasians. As the paper stated, "Africans differ from one another slightly more than from Eurasians, and the genetic diversity in Eurasians is largely a subset of that in Africans". In other words, chances are one will find more genetic similarity between a Eurasian and an African than between two people from different ends of Africa.

That all being so, rather than racism being the discrimination against other "races", racism is the very notion that there even exists such a thing as distinctive "races", be they with varying physical characteristics, behaviours, or whatever else one's pet discrimination may be.

But those are all the dry, scientific, technical explanations, which I don't think do much to explain the presence of discrimination in a more cultural sense. To explain that I'll relay a quote from an essay in Wendell Berry's The Art of the Commonplace, a quote which I think properly upends our conventional understanding of the issue of racism.

[T]he root of our racial problem in America is not racism. The root is in our inordinate desire to be superior – not to some inferior or subject people, though this desire leads to the subjection of people – but to our condition. We wish to rise above the sweat and bother of taking care of anything – of ourselves, of each other, or of our country. We did not enslave African blacks because they were black, but because their labor promised to free us of the obligations of stewardship, and because they were unable to prevent us from enslaving them. They were economically valuable and militarily weak.1

I'll let that simmer for a while and so leave an expansion on a land-based understanding of racism for another time. For now, the on-the-ground situation in Australia.

Protesting a “racial” pandemic during a viral pandemic

Despite pleas for restraint by the prime minister and state leaders in light of what were claimed to be concerns about the then-nascent COVID-19 pandemic, in early-June of 2020 tens of thousands of Australians not only hit the streets to show support for BLM protests, but did so legally (including one occasion in New South Wales in which organisers appealed and successfully overturned attempts by police to ban demonstrations). While it's highly unlikely for people to spread SARS-COV-2 to others in open air conditions, organisers at Melbourne's BLM rally nonetheless made sure to consult with organisations such as the Victorian Aboriginal Health Service as well as to procure 55,000 PPE masks and 55,000 bottles of hand sanitiser for distribution by staff.

(photo by Matt Hrkac)

Contrary to what can politely be described as a "misinformed" statement by the federal minister for the Pacific, Alex Hawke, that protesters congregated en masse "to attend a self indulgent 'protest' about matters in other countries", the reasons why Australians protested in the streets were however very much Australia-centric, those reasons specifically relating to the institutional and systemic racism levied upon Indigenous Australians, not to mention their ongoing deaths while in custody.

Meanwhile, and alongside condemnations levelled against Australia's early-June 2020 BLM protests as being riders of the United States' BLM bandwagon, the Rupert Murdoch masthead The Australian (whose maxim appears to be "a lie can travel halfway around the world before the truth can get its boots on") was at the head of a chorus of media outlets attempting to scapegoat Melbourne's BLM protest as responsible for a COVID-19 outbreak. This came courtesy of a front-page "exclusive" entitled "Coronavirus: Black Lives Matter protest linked to tower cluster". But while the only (non)evidence given in the article is nothing more than conjecture and "may have been"s, the Victorian Department of Health and Human Services had already stated – and has subsequently continued to state – that there is no evidence to link the two, that Melbourne's BLM protests were in no way linked to a COVID-19 outbreak in Melbourne, and that by extension The Australian is full of it.

In light of all the evidence to the contrary, why would publications like Rupert Murdoch's The Australian and government ministers like Alex Hawke continue to twist the truth to the point of fabrication? Might placards seen at protests across the country – "Racism is a pandemic" – in fact be true?

(photo by Matt Hrkac)

Whatever the reason(s) be, while the mid-2020 riots in the US were a direct result of the murder of the Black American George Floyd at the hands of police officers, Floyd's final words – final pleas – were words Indigenous Australians are similarly known to have also gasped at the hands of police officers, words that were chanted all across Australia during the 2020 BLM protests.

"I can't breathe."

One set of rules for Indigenous Australians, another set for non-Indigenous Australians

In December 2019 a Black American from North Carolina, John Neville, died in custody due to being asphyxiated while being restrained, his brain having been deprived of its necessary oxygen. While being restrained and hooded he had cried out more than 20 times "I can't breathe!" In July 2020 a nurse and five former jail officers were charged with involuntary manslaughter, a show of justice that across 476 deaths in custody of Indigenous Australians since 1991's Royal Commission into Aboriginal Deaths hasn't occurred even once.

To give just one example, it was four years earlier, on 29 December 2015, that a 26-year-old Aboriginal Dunghutti man, David Dungay Jnr, was three weeks away from being released after having served time for assault. He was in his cell at Sydney's Long Bay jail hospital, eating some biscuits, which guards told him to stop doing (he had diabetes). Dungay continued eating the biscuits, which was followed by five guards rushing into his cell, dragging him to another cell, and holding him face down while he was injected with a sedative by a Justice Health nurse. All the while he cried out twelve times – captured in harrowing footage seen in court – the exact words that George Floyd and John Neville managed to eke out to their killers: "I can't breathe!" Shortly after the injection Dungay lost consciousness, and subsequently died.

Three years later a coronial inquest found that not one of the guards that restrained Dungay should face disciplinary action. Although it was deemed that there had been no need to raid his cell (all of which was done without the proper authority), the conduct of the guards, said the coroner, was "limited by systemic inefficiencies in training".

It was neither necessary nor appropriate for David to be moved and ... he did not pose a security risk. From a medical point of view there was no evidence of any acute condition which would have warranted a cell transfer.

It was also noted by the coroner that the nurse who administered the sedative should have their professional conduct reviewed by the Board of Nursing.

In conclusion, nothing more than an apology acknowledging "organisational failures" was issued by the NSW Corrections commissioner.

But according to a leading criminal barrister, Phillip Boulten SC, "a reasonable prospect of conviction exists":

I have concluded that the evidence at the [coronial] inquest is capable of satisfying a Court beyond reasonable doubt that officers F, A and C assaulted Mr Dungay.

I have concluded that, in addition to evidence demonstrating that these officers assaulted the deceased, there is sufficient force in the evidence about Mr Dungay’s cause of death such as to make a prosecution for manslaughter viable.

As there was no good reason to move him, his movement was illegal. In that sense, all of the force used during the process of moving him was illegally applied. It was certainly not ‘appropriate’.

Mr Dungay was securely housed in his cell. There was no medical or security emergency. As there was no good reason to move him, any force directed at doing so was illegal.

The force used was contrary to the relevant Custodial Operations Policy and Procedures (Copps).

Mr Dungay was actually assaulted by all of the custodial officers who effected the move and who applied any force to him.

There is, in my humble opinion, a very real public interest in this matter being carefully considered by the director of public prosecutions.

Simply because the coroner decided not to refer the case for consideration for a homicide offence, does not relieve the DPP of giving independent consideration to all relevant issues once they are drawn to the director’s attention. As has been pointed out by many in recent times, the number of Aboriginal and Torres Strait Islander people who have died in custody continues to grow unacceptably. No one has ever been prosecuted for anything that led to the death of an Aboriginal or Torres Strait Island person whilst they were in custody.

This particular death shocked the NSW public. It continues to do so. In these circumstances, it is only right and just that the circumstances of this case be considered with the utmost seriousness and gravity.

The Dungay family, having received what they and many other Australians deem to be a lack of justice, have been seeking two things ever since: that SafeWork NSW investigate David Dungay Jnr's death, and that criminal charges be lodged by the NSW director of public prosecutions against the guards involved. Twice now SafeWork NSW has refused to investigate Dungay's death, and so following the launch of a change.org campaign that also called for the opening of an investigation, and less than two months after Australia's early-June 2020 BLM protests, the Dungay family and supporters organised another rally in support of the call for an investigation.

Sign the Petition
“I can't breathe": Charges must be laid for the death of David Dungay Jnr

As stated by Leetona Dungay, mother of David Dungay,

I am going to keep marching until we get justice for my son. We buried him in Mother Earth, and that's where I'll walk tomorrow and every day until charges are laid against the guards involved in his death.

This time around the New South Wales supreme court ruled in favour of the police's call for prohibition on the protest, and so as protest organisers lost their court appeal to have the prohibition against public assembly overturned it was now the case that demonstrators were at risk of being fined and arrested for breaching COVID-19 restrictions on mass gatherings. The Dungay family nonetheless vowed to continue with their march, as described by David Dungay's nephew, Paul Silva:

We won't stop until there is justice for my uncle's death. The reason we are protesting is because after five years not a single person has been held accountable for the death of my uncle.

I tell you what, if the premier can commit to asking SafeWork NSW and the DPP to investigate whether charges can be laid in relation to my Uncle's death I'm sure that we can put off the protest.

If she refuses then it just goes to show that no one cares about our lives and we will see you on Tuesday.

True to their word, the Dungay family and their supporters set off – with masks and hand sanitiser – on their (small) protest, armed with the 90,900+ signatures garnered by their change.org petition to be presented to parliament.

Paul Silva and Leetona Dungay on the right carrying a box with some of the 90,000+ signatures – which has now reached 113,000+ signatures – calling for the opening of an investigation into the death of David Dungay (photo via NATSILS)

While the few dozen protesters had organised themselves in groups of less than 20 since NSW COVID-19 restrictions in place that day stated that "no more than 20 people are allowed to gather outside in a public place", the protesters were met with an uncannily heavy police presence that far outnumbered the protesters and which included riot police and dog squads. Everybody was ordered to move on, said the assistant police commissioner Michael Willing, due to there being more than 20 people overall. The Dungay family and supporters dispersed, but not before six were arrested and two were levied with fines of $1,000 each. The law, after all, is the law.

Or is it?

Because as the assistant police commissioner curiously put it,

As we said all along, we are not anti-the right to protest. This is about public safety. At the end of the day, we are in the middle of a pandemic. The Supreme Court judge himself described the current situation in NSW as being on a knife's edge.

Why the assistant police commissioner's statement was so curious was due to a notable paragraph in the Crikey Worm that hit my inbox the very next morning:

Footage released by Nine reporter Andrew Rickert yesterday appears to show dozens of anti-CCP protesters – apparently from the “New Federal State of China”, a separatist group backed by Steve Bannon – marching outside Sydney’s Chinese consulate. Protesters also appeared masked and social distanced, but no arrests or fines have been reported.

That is, on the exact same day that Indigenous and Indigenous-aligned protesters were being arrested and fined in Sydney for seeking justice for the death of a (Black) Indigenous Australian while in custody, in another part of Sydney protesters backed by a far-right Donald Trump ally (Steve "Fauci's head belongs on a pike" Bannon), congregating in groups that far outnumbered the Dungay family and their supporters, were allowed to proceed unimpeded.

To make matters worse, less than three months later, while NSW's COVID-19 restrictions were still in place at 20 people per gathering, a "one-off exemption to the Public Health Order" was passed by the NSW government that increased the limit of public gatherings to 100 people – so long as social distancing measures and such were adhered to, which are exactly the stipulations that the Dungay family and their supporters abided by. Moreover, it was most interesting what the exemption was made for. Namely, Remembrance Day.

That is, the NSW government declared it to be okay for people to gather in groups well above what had by then increased to a 30-person limit in order to pay respect to the decades-old deaths of what was predominantly a bunch of white men (which there's nothing inherently wrong with), in spite of the fact that it had previously been deemed not only wrong for more than 20 people to gather to denounce the death of a Black Indigenous man, but was deemed wrong for more than 20 people to gather to denounce just one example of the ongoing deaths of (Black) Indigenous Australians (in custody) that occurred not simply several decades ago but which continue to this very day.

Suffice to say, it would seem that the Indigenous protestor who ripped up his $1,000 fine received at the 28 July 2020 protest – and who stated "Garbage, this is going in the bin. That's all it's worth" – was even more in the right than he realised.

I'll leave it at that for now, although in upcoming posts we'll delve further into the double standards and atrocious treatment bestowed upon Indigenous Australians, all the while delving deeper into the roots – the literal roots – of where such treatment derives from.

Sounds of COVID-19, with Fanfare Ciocărlia

"Probably a bit too morose for another high-intensity Sounds of COVID-19, with Fanfare Ciocărlia song" you may be thinking. But on the contrary, here's the aptly-titled, and possibly somewhat of a rallying cry, "Fiesta de negritos".

May the blasts of breath from the lungs of the monsters of brass give succour to the honour of the too-early, and unjustly, departed.

Not sure what this Sounds of COVID-19, with Fanfare Ciocărlia section is? Then be sure to check out its dedicated page for an explanation:

  1. Wendell Berry, The Art of the Commonplace: The Agrarian Essays of Wendell Berry (Washington, D.C.: Counterpoint, 2002), p. 47.

(photo by Matt Hrkac)

A former filmmaker, now jawboning on the collapse of industrial civili­s­a­tion and the renewal of culture. .

  ALLAN STROMFELDT CHRISTENSEN  2021