Response to NT Judge Judith Kelly’s Speech on 26 August 2022 on Racism in the Law

Greg Barns

This opinion piece was published on Pearls and Irritations – https://johnmenadue.com/rebuttal-of-justice-kelly-speech-image/

Justice Kelly’s speech on racism – a response

Sep 7, 2022

Front view of an antique horsehair lawyer's wig

Image: iStock

Northern Territory Supreme Court Justice Judith Kelly’s widely publicised speech on August 26th delivered to a Women’s Lawyers function in Darwin and which covered racism and family violence in Indigenous communities, delivered to a Women Lawyers, needs a response.

This was a speech which took issue with the claim that Australia is a racist country and that systemic and institutional racism are invidious terms. It was a speech which, it can be argued, ignored the insidious and unspoken racism that is the reality of Australia today and particular for Indigenous Australians. It was, in some respects, an intellectually lazy essay into the realm of Indigenous disadvantage.

It was a speech that peddled lines familiar to many us. That is, that Australia is not racist nation. That of course is easy patter from white European Australians but ask Indigenous Australians, students from Asian countries and India about how they feel as victims of constant racist jibes, and occasionally violence from white thugs. And the claim that Australia is not racist ignores the colonialism and disenfranchisement that has given rise to endemic poverty, alcoholism, and entrenched systemic disadvantage.

Then there was Justice Kelly’s claim that ‘political correctness’, although she did not use that term, means you can’t talk frankly about family violence in Aboriginal communities, which was the focus of her talk. According to Justice Kelly there is “a difficulty which has grown up in even talking about the problem – that is 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.”

Let’s drill down into Justice Kelly’s claims. When it comes to “domestic violence against Aboriginal women” she pronounced that lawyers and courts can’t do much about this phenomenon – “unfortunately”, she said, lawyers are stuck with the reality that there is “not a lot” they can do.

One might have thought a leader in the NT legal system might seek to inspire her audience with some insights and even, dare we say it, ‘radical’ ideas about how lawyers and courts can in fact assist in lowering the rates of domestic violence in Indigenous communities.

And has Justice Kelly seen recent research about what New Zealand’s legal system is doing to work with Indigenous communities to deal with family violence? On 22 June Radio New Zealand  reported that the latest report from the Family Violence Death Review Committee, a government body, which shows a substantial drop in Māori family violence deaths. Maori made up “44 percent of family violence deaths from 2009 to 2019. In 2021, this dropped to 23 percent of family violence deaths, according to the committee’s provisional data.” The Committee chair Dr Fiona Cram observes that ‘Māori community organisations showed how to form genuine, respectful relationships.’ She said; “To demonstrate, the report highlights the work of three kaupapa Māori organisations that are embedding a duty to care for their people, resulting in less risk of unseen victims and more opportunities for families and whānau to guide service delivery.”

Or Justice Kelly could have pointed to the success of therapeutic justice (TJ) courts in reducing family violence. Or Indigenous courts which have been successful in Canada and in this country, in Victoria. TJ courts have had great success in working with offenders with serious and complex needs, in reducing their recidivism rates. Why not advocate that the NT government and legislature should be examining the introducing of such courts which deal with drugs, mental health, and family violence?

Justice Kelly’s bleak assessment reflects a positivist approach which seems to accept that the law is not a tool for social reform. In a place such as the Northern Territory which features the government sponsored child abuse hell holes like Don Dale and industrial scale imprisonment of Indigenous Australians, lawyers must be focused relentlessly on social and political values change. A senior judge like Judith Kelly could have sent this message loud and clear instead of throwing up her hands in resignation.

But then there was her doubting that systemic racism actually exists. This is the part of her speech which has conservatives in the media and elsewhere salivating. “Eschew the invidious terms “institutional racism” and “systemic racism” unless there is at least some evidence that the institution in question does actually have racist policies – i.e. systematically treats Aboriginal people less favourably on the basis of their race,” Justice Kelly pronounced.

Why are “institutional racism” and “systemic racism” invidious terms? One assumes the judge meant ‘invidious’ in its ordinary sense. That is, ‘likely to arouse or incur resentment or anger in others’. If so, she is dead wrong. These are terms which are apt in describing legal systems and societies where minorities are jailed at much higher rates than the majority; where they die in custody too often; and where they experience entrenched discrimination in their daily lives. All of these are features of the Northern Territory. And no, this is not a slur from a bourgeois ‘white lawyer from the south’. It is factual.

Here is what the eminent former Western Australian Chief Justice Wayne Martin  said in 2017, ironically in a speech to a criminal lawyers group in the NT, about the systemic racism which infects the Australian legal system; “Aboriginal people are much more likely to be questioned by police than non-Aboriginal people. When questioned they are more likely to be arrested. If they are arrested, they are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people.” So is Justice Kelly seriously saying there is not a preponderance of evidence that systemic and institutional racism are part of the DNA of the NT?

But underplaying racism, a favourite past time of The Australian where Justice Kelly, in June this year, spelt out her views on family violence in Indigenous communities and said that ‘claims of racism in the justice system were “very unhelpful” and false’. Justice Kelly thinks that on the whole, “modern Australian society is not racist”, and she thinks “the majority of contemporary Australians are not racist. In fact, as a society we have become super sensitive to any charge of racism.” That last observation is meaningless. No doubt many white Americans bristle when it is suggested their nation is racist.

But as to the claim Australia is not a racist country (by the way a claim often made by the most conservative Prime Minister Australia has produced, John Howard) I would prefer the evidence based conclusion by  Amnesty International that “[w]hile it may be a difficult truth to confront, it is clear that Australia has an enduring problem with racial discrimination and abuse. To combat racial abuse, Australians must first acknowledge that racism is a widespread, destructive and systemic problem.” And we can add to that the authoritative voice of former Race Discrimination Commissioner Tim Soutphommasane who told  CNN back in 2018; “For the most part we are a highly cohesive and harmonious society but that doesn’t deny for a moment that racism continues to be a significant social problem.”

I am not sure the basis of Justice Kelly’s glib statement that Australia is not racist because the evidence points the other way. Just ask ex AFL footballers like Adam Goodes, Nicky Winmar. Spend some time with students from Asia and India at our universities and they will tell you about the weekly jibes and abuse they endure as they live their lives in this nation. And of course to be Indigenous is to endure the stain of racism daily.

It is incumbent on lawyers in the NT to respond to Justice Kelly’s dim and conservative view of the role of race in the Australian legal system. If they do not, then the appalling status quo will continue.

And on this issue of a response has any Northern Territory legal organisation engaged with critiquing Justice Kelly’s speech? Where is the NT Bar Association, the NT Law Society, the criminal lawyers groups or Indigenous legal aid organisations like NAAJA? They should find their voice when a leader of the legal profession speaks on race.