Silence in Court

Teresa Ashforth

Chapter Four: Aboriginal perspectives and reactions

Dialogic or Strategic Communication
A Clash of Cultures
Ways of Speaking
Drunkenness as a Crime Constructed by Discourse

Dialogic or Strategic Communication

Aboriginal people are fully conscious of the communicative barriers which frequently confront them in their encounters with Whites. In the book We Are Bosses Ourselves (1973) Fay Gale presents in narrative form an extended stretch of Aboriginal discourse - 'Alma's Story'. Alma is one of the five Borroloola women taking part in a discussion with Gale and, for important cultural reasons described by the latter, considered a 'sacred' person among these women. She is represented as speaking for them, commencing her narrative with "We are Aboriginal women ... we talk for our hunting business, ceremony business ...". In the following extract from Alma's discourse some of the frustration experienced by Aboriginal people in their encounters with Whites is expressed when she says (1973:75):

All they want is talk from our mouths - that's all
that's all they want
they're looking for talking from our mouths
But our mouths won't get them anywhere
Unless we sit down and have a quiet talk
an understanding talk
and have that person understand us
and we understand (h)im
Then we feel closer

Alma's use of 'him' in the extract does not carry the lexical meaning it might in White discourse since frequently in Aboriginal English this pronoun is unselectively applied to both sexes as well as to animals, plants and inanimate objects.)

The theme of Alma's utterances illustrates the notion of 'Universal Pragmatics' as explored by Habermas. Habermas suggests, (McCarthy 1984:278) that universal pragmatics "aims at disclosing conditions of possibility ... the possibility of reaching understanding in ordinary language communication". Habermas suggests that the fundamental task of the theory of communicative competence is to "identify and reconstruct the universal conditions of possible understanding". As pointed out by McCarthy (1984:287) Habermas considers "strategic" forms of communication such as lying, misleading, deceiving, manipulating and the like as "derivative", since they involve the suspension of certain 'validity claims' - they are parasitic on speech oriented to genuine understanding.

The distinction between strategic and dialogic communication is neatly encapsulated by Alma: "They're looking for talking from our mouths", vis-a-vis "an understanding talk", at the same time as she contrasts the failure with the success of a communicative encounter: "our mouths won't get them anywhere", with "then we feel closer". According to Habermas, (cited McCarthy 1984:287-288) "in action oriented to understanding language finds the use for which it is fundamentally designed". Any "strategic" use of language therefore only becomes possible because of this initial pre-supposition: "In the end, the non-communicative (strategic) use of speech in action oriented to success presupposes the communicative use of language".

In February 1984, Robert Bropho appealed to the Human Rights Commission on behalf of the Aboriginal Fringedwellers of the Swan Valley at a meeting in Perth to hear Aboriginal complaints about unfair treatment and harassment by the police. The meeting was attended by representatives of that Commission, representatives of the Police Department and others. His appeal was for something more than legislation (TR 1984).

What we are concerned about is if the police are going to continue on as they always have in the past - we can't seem to come to grips with it or to find a solution which will stop these incidents occurring as they did in the past. We feel and believe we're encountering experiences with police which will continue on until such time until we can find a solution - where this sort of treatment is stamped out or stopped or whatever. I feel that the problem I think and realise is communication - communicating with one another. I mean we can sit and cry over it - it's been with us so long and we write letters from the bottom of the ladder up to the top and we get answers back from the top saying that the matter is being investigated - and we get letters back saying that our complaints are not worthy of the ability of the people at the top and we fail in these avenues and we feel that there's nowhere else to turn to ... The main thing is what we're concerned about now is you're the dominating race of people who are in the position it's your law and we're forced to live by it. When your law breaks its terms of rightness where do we turn to for justice?

The 'strategic' use of language, in Habermas's terms, is attuned to the meaning he and increasingly others ascribe to the word 'ideology', which he and they see as communication systematically distorted by the exercise of power: language used "as a means of domination and social force" (Thompson 1984:257). An essential link is assumed therefore between the strategic and the consensual/communicative use of language in Habermas: the former he sees as only being made possible by, even though it becomes a parasitic or debased form of, the latter. As cited by Thompson (1984:260):

It belongs to the structure of possible speech that in the execution of speech acts (and actions) we contrafactually proceed as if the ideal speech situation ... were not merely fictive but real - precisely what we call a presupposition.

The ideal speech situation is necessarily anticipated in every act of speech ... in so far as every competent speaker possesses the means to construct such a situation, however distorted the actual conditions of speech may be.

The human and existential setting in which the real spoken word occurs was very much central to the concern of Bakhtin (Todorov 1984:18-19). As noted by Bakhtin:

the subject as such cannot be perceived or studied as if it were a thing, ... there is no knowledge of the subject but dialogical ... The boundary there is not the I but this I in interrelation with other persons, that is I and the other, I and Thou.

According to the 'Dialogical Principle' explored by Bakhtin as being essential to all utterances (Todorov 1982:43): "Discourse is oriented towards the person addressed, oriented toward what that person is". Further, as summarised by the latter, "the utterance is not the business of the speaker alone but the result of his or her interaction with a listener, whose reaction he or she integrates in advance". Bakhtin (cited Todorov 1982:30) observes:

No utterance in general can be attributed to the speaker exclusively, it is the product of the interaction of the interlocuters, and, broadly speaking, the product of the whole social situation in which it has occurred.

And again (1984:21)

Meaning is personal: there is always within it a question, an appeal to, and an anticipation of, the answer; there are always two subjects in it (the dialogical minimum).

Todorov credits Bakhtin with being the modern founder of the discipline of pragmatics - a discipline incorporating but not confined to the science of linguistics - essential to the understanding of discourse - the "totalising and multifaceted reality" which Bakhtin (Todorov 1984:24) describes as "almost the totality of human life".

Similarly, Habermas defends the concept of Universal Pragmatics as being central and crucial to any theory of social action. Described by McCarthy (1978:279) as "the possibility of reaching understanding in ordinary language communication" - Habermas's Universal Pragmatics recognises "the structural interconnection of experience and action". Language as action therefore is epitomised in the utterance.

Bakhtin (Todorov 1984:45) distinguished the meaning (which he calls the theme) of the utterance in discourse from the signification of the utterance. Of the signification he says it is "all the moments of the utterance that are reiterative and identical unto themselves in all their repetitions". He goes so far as to say that signification "signifies nothing, but only has the potentiality, the possibility, of signifying in a concrete theme". The theme or meaning on the other hand - as is the utterance of which it is part - is defined as 'unique' "since it results from the encounter of signification with a context of enunciation equally unique". Bakhtin's own words:

The theme of the utterance is individual and non reiterative, as is the case with the utterance itself. It is the expression of the concrete historical situation that engendered the utterance. ... It follows that the theme of the utterance is determined not only by the linguistic forms that are its components (words, morphological and syntactical forms, sounds, intonations), but also by the extra-verbal aspects of the situation. Were we to ignore these aspects of the situation we would not be able to understand the utterance, as if we had ignored the most important words.

The 'social' aspect is of paramount importance in Bakhtin's scheme. Discourse was consistently theorised by him in terms of synthesis - synthesis between the 'expressible' (the inward experience) and the external 'objectification' of that experience (the utterance). Both of these fell entirely within, were ineluctably shaped by, and maintained an indissoluble symbiotic relationship with, the social non-verbal territory in which they had their being.

The notion of the non-reiterative nature of 'theme' as outlined by Bakhtin (as opposed to the reiterative nature of signification) harmonises with Habermas's theory as situated by McCarthy (1978:279):

In locating universal pragmatics on the semiotic map, the key distinction is that between "rules for the generation of sentences in any language" (grammatical theory) and "rules for situating sentences in any speech act" (universal pragmatics).

The "rules which determine the generation of sentences" can be likened in Bakhtin's terms to the process of signification prior to its utilisation in the specificity of the speech act. Similarly, the "rules for situating sentences in any speech act" invoke Bakhtin's concept of utterance, which requires for its enablement not only the interlocutors - the I and the Other - but also all the extra-verbal aspects of that unique and non-repeatable event.

For the production of sentences according to rules of grammar is something different from an employment of sentences according to pragmatic rules that form the infrastructure of speech situations in general.

The possibility of reaching agreement through the use of reason, as seen by Habermas, is described by McCarthy in the following terms:

Normal interaction involves regarding the other as a subject, supposing that he knows what he is doing and why he is doing it, and that he intentionally holds the beliefs and pursues the ends that he does, and that he is capable of supporting them with reasons if necessary. Although this supposition of 'responsibility' is frequently ... counterfactual, it is of fundamental significance for the structure of human relations that we proceed as if it were the case - on this unavoidable fiction rests the humanity of intercourse among men who are still 'men'. When however fundamental differences in beliefs and values block the initiation or continuation of 'communicative relations' the possibility of discursively resolving these differences takes on a particular significance. It represents the possibility of instituting or reinstituting a consensual basis for interaction without resort to force in any of its forms from open violence to latent manipulation; it represents the possibility of reaching agreement through the use of reason and thus by recourse to, rather than violation of, the humanity of those involved.

In more ways than one, Aboriginal discourse unmistakably embodies, and frequently reiterates, a plea to others for just such a method, while at the same time perceiving and expressing with considerable clarity the ease with which signification can in their case be powerfully appropriated in the strategic and institutional use of language in the violation both of their humanity and their real interests. For them, and they know this, language, most particularly in all aspects of White legal discourse, can be, as seen by Habermas (McCarthy 1978:183), a means of domination and social power. It serves to legitimate relations of organised force. Insofar as the legitimations do not articulate the relations of force that they make possible, insofar as these relations are merely expressed in the legitimations, language is also ideological.

Here, says Habermas, it is not a question of "deceptions within a language" but "of deception with a language as such". And, he continues:

Hermeneutic experience that encounters this dependency of the symbolic framework on actual conditions changes into the critique of ideology.

Nor can such legitimations be considered in isolation from their 'moral' dimensions. According to McCarthy (1978:35-36) Habermas regards moral action as essentially communicative, a relation between subjects who are "involved in a complex of interactions as their formative process ...":

The moral subject, the subject of praxis, is inconceivable in abstraction from communicative relations with others. Conversely, social interaction is eo ipse moral interaction, it is, at least potentially, a dialogic relationship "that emerges among actors on the always precarious basis of mutual recognition". ... Historically the organisation of social relations has reflected institutionalised power relations rather than public and general communication free from domination. Thus interaction as a category for comprehending processes of social evolution does not refer immediately to unconstrained intersubjectivity but to the history of its repression and reconstitution; the dialectic of the moral life.

Argument abounds and has not been fully resolved regarding the universality of criteria of rationality (McCarthy:318), particularly with regard to anthropology and social enquiry, where accusations of intellectualism, relativity and ethnocentrism inevitably arise and where each researcher must find his or her own uneasy path through a veritable minefield of methodological traps. Habermas's attempt in his theory of communicative competence therefore to develop a comprehensive notion of rationality, even if (or perhaps because) it leaves the way open for further debate, is useful. He provides us with a theory which lays claim to no more than the aspiration to an ideal, and which as a general rule can only be approximately realised in practice.

Lyotard (1984:66) boldly claims that consensus "has become an outmoded and suspect value". He bases his conclusions on his analysis of the pragmatics of science and points (1984:6) to the particular formulation of consensus which sees it as "... a component of the system, which manipulates it in order to improve its performance". On the other hand, in the form elaborated by Habermas, as noted by Lyotard "consensus is an agreement between men, defined as knowing intellects and free wills and is obtained through dialogue ... a conception based on the narrative of emancipation".

And when Lyotard states (1984:65) that consensus "is only a particular state of discussion, not its end" and that its end on the contrary is "paralogy",, such a hypothesis in no way invalidates the proposition that such a method comes closer than most, even if on Habermas's own admission it may not necessarily claim absolutely to be able to reach to the complete resolution of conflict and domination.

Habermas argues that the settlement of truth and rightness claims through argumentative reasoning (subject to the conditions he describes) represents the realisation and completion of competences that are universal to mankind: "The ability to communicate", according to Habermas, "already places at one's disposal the formal means for 'constructing' a discursive speech situation" (McCarthy 322).

No matter how the intersubjectivity of mutual understanding may be deformed, the design of an ideal speech situation is necessarily implied in the structure of potential speech, since all speech, even of intentional deception, is oriented toward the idea of truth. This idea can only be analysed with regard to a consensus achieved in unrestrained and universal discourse ...

The four 'validity claims' providing the framework for this endeavour are defined by Habermas as follows: (McCarthy:337):

comprehensibility (corresponding to that 'region' of reality Habermas calls language - a region in its own right); truth (corresponding to 'outer nature' or 'external nature' - the objectivated sector of reality which the adult subject can [directly or indirectly] perceive and treat manipulatively); rightness (corresponding to 'society' - that symbolically prestructured sector of reality which the adult subject can understand in a non-objectifying attitude, i.e. as a communicative actor); truthfulness (corresponding to 'inner nature' - all intentions that an "I" can express as its experiences - knowing itself not only as subjectivity, but as something that has at the same time already transcended the limits of mere subjectivity in cognition, language and interaction). (Ibid.337)

In Bakhtin's typology of discourses (cited Todorov 1982:57) (which included 'literary' discourse; the discourse of 'production'; the discourse of 'business'; and 'familiar' discourse) he defined 'ideological' discourse as having to do with propaganda, school, science and philosophy in all their varieties. Thompson's more general definition of ideology (1984:35) represents it as the manner, and the many ways, in which meaning (signification) serves to sustain relations of domination by means of language. The triple equation ideology = dominance = language has become a persuasive thematic in the hands of contemporary language philosophers, many of whom have used it as the basis for individual and particular methods of analysis and interpretation. And although Bakhtin did not (as did, for example, Kress and Hodge in Language as Ideology) go on to develop a notion of dominance through language, he did, like them, emphasise that the utterance is never simply the reflection or the expression of something that pre-exists it given and 'ready' (Todorov 1984:50), but is always part given and part created:

It always creates something that had not been before ... and that is absolutely new and is nonreiterative, and that, moreover, always has a relation to values. ... But this thing comes into being only from a given thing (language; the observed real fact; the felt emotion; the speaking subject him/herself; what was already in his or her conception of the world, etc.)

Kress and Hodge (1979:5) went a little further when they observed:

Language fixes a world that is so much more stable and coherent than what we actually see that it takes place in our consciousness and becomes what we think we have seen. And since normal perception works by constant feedback, the gap between the real world and the socially-constructed world is constantly being reduced so that what we do 'see' becomes what we can say.

Philosophical and ideological differences divide Bakhtin, Habermas and Foucault. Nevertheless, in the area of discourse there are relevant points of comparison between them. For example, Habermas's idealistic conception of the possibility of communication free from constraint of any kind (which, he freely admits, is unlikely to be achieved in practice) corresponds in some respects with what Foucault has labelled 'desire' in "The Order of Discourse". As summarised by Young (1982:49)

it (discourse) is constituted by a relation between desire, which wants discourse to be unrestricted, infinitely 'open', and the institutions, which assert that discourse comes into formation through constraint and control, and that it is in this way that it possesses power. In other words, the two are inseperable: discourse is formed and exists through the operation of both, exactly in the way that ego and id are constitutive of each other.

Perhaps the difference is significant in that while Habermas would see the constraint as a limiting factor, Foucault regards it as a necessary facilitator - something which wards off the powers and 'dangers' of discourse's formidable 'materiality'. Foucault describes this constraint and control as taking the form of "the taboo on the object of speech; the ritual of the circumstances of speech; and the privileged or exclusive right of the speaking subject". Here, he says, we have the play of three types of prohibition which intersect, reinforce or compensate for each other, and form a complex grid which changes constantly:

We know quite well that we do not have the right to say everything, that we cannot speak of just anything in any circumstances whatever, and that not everyone has the right to speak of anything whatever.

Given that it is subject to the play of such forces that Bakhtin's dialogical principle' can be enunciated, here too Foucault's notion of an 'agonistic' relationship in the communicative encounter is relevant: For Foucault what defines a relationship of power is that it is "a mode of action which does not act directly and immediately on others. Instead it acts upon their actions". The performative aspects of speech therefore could be said to take their shape from this "agonism" - "a relationship which is at the same time reciprocal incitation and struggle; less of a face-to-face confrontation which paralyses both sides than a permanent provocation" (Dreyfus and Rabinow 1982:222).

This notion of action upon the action of 'others' Foucault sees as co-extensive with every social relationship. Speaking of 'strategy' in this particular context, Foucault sees it as operating in three ways (Dreyfus and Rabinov 224):

First, to designate the means employed to attain a certain end; it is a question of rationality functioning to arrive at an objective. Second, to designate the manner in which a partner in a certain game acts with regard to what he thinks should be the action of the others and what he considers the others think to be his own; it is the way in which one seeks to have the advantage over others. Third, to designate the procedures used in a situation of confrontation to deprive the opponent of his means of combat and to reduce him to giving up the struggle; it is a question therefore of the means destined to obtain victory.

Strategic and thematic aspects of utterances would seem to be seen therefore by Foucault as being significantly interdependent as well as inseparable in practice. So too are his notions of strategy and truth, or truth and power.

Habermas's concept of "deceptions with a language" as opposed to "deceptions within a language", is not entirely incompatible with the Foucauldian notion of "regimes of truth". For Foucault, 'truth' is 'essentially of the world' (Morris and Patton [eds]) 1979:46:

It is produced there by virtue of multiple constraints and it induces there the regulated effects of power. Each society has its regime of truth, its "general politics" of truth: that is the types of discourse it harbours and causes to function as true; the mechanisms and instances which enable one to distinguish true from false statements, the way in which each is sanctioned; the techniques and procedures which are valorised for obtaining truth; the status of those who are charged with saying what counts as true.

For Foucault, it is not the "ensemble of truths which are to be discovered and given acceptance" which constitute truth, but rather "the ensemble of truths according to which true and false are separated and specific effects of power attached to the true". So yes - Foucault's truth is a constructed category: As observed by McHoul (TR:1987):

It is constructed out of impersonal power formations whereas for Habermas it is almost a Platonic category which is responsible for itself and the reproduction of itself and of infelicitous or deceptive speech which can be measured up against it; far from being a social construct it is the rational criterion by which social constructs can be analysed or measured.

Nevertheless, there does seem to be an important connection between Habermas's "deception with a language" and Foucault's "politics of truth" for both have a very real bearing on the purpose and function of the legitimated statements' which are so very central to, and accepted so unproblematically within, the discourse of the White legal system.

And even if, as McHoul (1987) observes, "Habermas stopped short of the notion of the subject being a discursive product", Habermas nevertheless does acknowledge language as capable of serving as a means of domination and social power "serving to legitimate relations of organised force".

Rather than seeing power relations as "reconstituted 'above' society as a supplementary structure whose radical effacement one could perhaps dream of", Foucault sees them as "rooted deep in the social nexus". To live in society is therefore, according to him, to live in such a way that action upon other actions is possible and in fact ongoing. "A society without power relations can only be an abstraction". Most important however, according to him, is the realisation that it is politically necessary to analyse the historical formation of power relations in a given society, the source of their strength or fragility, the conditions which are necessary to transform some or abolish others.

As cited by Dreyfus and Rabinoff (1982:223) Foucault observes:

For to say that there cannot be a society without power relations is not to say either that those which are established are necessary, or, in any case, that power constitutes a fatality at the heart of societies, such that it cannot be undermined. Instead I would say that the analysis, elaboration and bringing into question of power relations and the "agonism" between power relations and the intransitivity of freedom is a permanent political task inherent in all social existence.

It could hardly be reasonably suggested that Aboriginal discourse at present is of such organised efficacy as could challenge on a grand scale the force of legal discourse as it currently operates. The strength and potency of individual voices however should not on that account be dismissed or underestimated.

A Clash of Cultures

At the Labor Lawyers Conference in Perth in September 1987 Aboriginal lawyer Mick Dodson, Senior Legal Advisor for the Northern Land Council delivered a speech in which he directly and forcefully addressed the question of Aboriginal/Police relations - suggesting as he did so that the title of his talk should carry a double question: 'Are there any and are any possible'. This was not a joke he added but a reflection of reality as Aboriginal people see it.

In his exploration of what he saw as the deep-rooted causes of the ways in which our different cultures continue to clash Dodson highlighted that aspect of Aboriginal culture which manifests itself in concern for and working together with the aim of the common good in mind: the duties of caring for country passed down through families; the observance of the unwritten body of law surviving and evolving in an unbroken line over many thousands of years. He contrasted this with White law (1987:4):

One has a law which comes from the people and which the people observe. In their terms, non-Aboriginal law is one that is imposed by a political, bureaucratic, judicial and impersonal system and enforced by a uniformed army.

From Dodson's Aboriginal viewpoint, Aboriginal society's sense of group responsibility is seen to be strong while ours is seen to be "limited" - with, in our case, individuality and competition having taken over from our sense of community or collective responsibility.

Whether or not we may wish to accept such harsh judgements is not necessarily the question. The fact that such clearly-expressed views reflect Aboriginal perceptions of the gulf between us is more to the point and should give us pause. More modest perhaps than the demands of either Habermas or Freire, but at the same time evoking and incorporating both the notion of valid communication and the dialogical principle, and rejecting those elements of domination and constraint so eschewed by contemporary language philosophers, Dodson's prescription for improving Aboriginal police relations was articulated by him as follows (1987:5):

The heart of any sound relationship involves a level of respect between the parties. Respect of each other's beliefs, culture, lifestyle and very existence. It includes respect for and defence of each other's basic human rights.

Inevitably, and perhaps deservedly, any presentation of Aboriginal utterances may be seen as a reprehensible political practice, both in the sense of their having been 'stolen' from their true ecological paradigm and 'stitched' into alien White discourse and because such an attempt at incorporation seems to deny the principle that, as observed by Foucault (1982:67) "discourses must be treated as discontinuous practices, which cross each other, are sometimes juxtaposed with one another, but can just as well exclude or be unaware of each other". The problem, if indeed it is a problem (which is debatable), cannot be dissolved, will not go away, and is central to the black/white dilemma.

Yet, although written commentary may well be seen as a practice of domination in itself, its very vulnerability, as well as its lack of certainty and finality resides in what Todorov (1983:170) describes as a characteristic of our time in particular: that of being able to agree with ... opposing camps and not to be able to choose between them - "as if the distinctive features of our civilization were the suspension of choice and the tendency to understand everything without doing anything". And yes - the question does have to be asked: who will benefit if two such relatively inimical discourses as legal discourse and Aboriginal discourse are brought closer together? For is not the police officer, no less than the Aboriginal 'offender' in our society, discursively produced by the ultimate 'truth' of the same legal formation.

And as Foucault (1972:29) observed:

To reveal that space in which discursive events are deployed is not to undertake to establish it in an isolation that nothing could overcome; it is not to close it in upon itself; it is to leave oneself free to describe the interplay of relations within it and outside it.

Whether or not what some Aboriginal people have to say about the police can necessarily be regarded as universally representing all Aboriginal people's perceptions in their regard will inevitably be debated. Despite the undeniable problematics inhering in such a proposition however, the fact that most Aboriginal voices, unlike those of lawyers and police, make their discourse outside any institutional site which might otherwise legitimate them, confers on those voices, at least potentially, a certain degree of freedom and validity: freedom from, for example, the constraints of "hierarchical subordination" or "functional complementarity" typical of the "enunciative modalities" of institutions as they are described by Foucault (1978:50-55); validity in that while they may not be lacking in social force (in that their effects should not be underestimated), they do not fit easily into a description which would class them as 'strategic' or systematically distorted by the exercise of 'power'. No discourse, as previously noted, can be simply seen as a phenomenon of expression only but must inevitably be located in some social nexus, must invariably occupy some site, some position, which will inevitably, as described by Foucault, manifest the 'dispersion' of the speaking subject and define his or her discourse as being established by "the specificity of a discursive practice". The extracts and comments included in the present text are no exception, subject as they are to the specific and 'discontinuous' practice we variously call 'intercultural communication' or 'ethnographic dialogue' depending upon our own position at the time; and citationally juxtaposed as they are in this particular instance with the 'academic' discourse within which they are embedded.

The ever-recurring general question of the possibility of undistorted relations of communication, while it admits of no easy answer, remains imperative. In the current political climate of black/white relations in Australia it is crucial.

While completely undistorted communication is, as observed by Carr and Kemmis (1984:166-167), purely "ideal-typical" and never achieved in practice (since, as they observe, any human action inevitably embodies "taken for granted assumptions of habit, custom, precedent and coercive social structures and the limitations on action these assumptions produce") the pursuit of this ideal is of the essence of anything approaching valid communication or true dialogue. Carr and Kemmis argue for a "dialectical process of reconstruction". They define this as a key part of critical self-reflection whereby a "relative emancipation from the dictates of habit, custom, precedent and bureaucratic systemisation may be achieved".

Even a 'relative' emancipation from such constraints however inevitably demands a theory as its enabling factor. Such theory can be constructed I would suggest, on the grounds offered by philosophers such as Bakhtin, Foucault, Freire and Habermas. And while their ideas may not be entirely unique to them nor purport to be the last word in the vexed question of human communication, nevertheless the forms in which they express them seem particularly appropriate where the problem of Aboriginal-Police relations is concerned.

That the area of transcultural communication is beset with its own peculiar problematic goes without saying. According to McCarthy (1984:317-333) unresolved argument regarding Western and so-called 'primitive' cultures, for example, still revolves around such issues as the fact that second-order 'intellectual activities' such as metaethical, metatheoretical, epistemological, historical and anthropological modes of reflective reasoning typical of Western thought are less prominent in, even if not entirely absent from, these 'other' cultures. There are the relativists who argue that such 'nondiscursive' standards of rationality are just as good as, or even superior to, the former. Since however, inevitably, the debate is conducted along rational/critical lines it tends to become a somewhat circular one closing in upon itself.

Little advantage can really be gained therefore from a commitment to either position. The argument is irrelevant even if the difference is profound. For each culture, in its own terms, or monologically, will inevitably 'describe', 'understand', 'explain' the other according to its own mode of description and interpretation. What they can do in dialogue however is to remain open and perceptive to the prejudices and constraints in their own as well as in the other's position. This might be expected to produce some degree of symmetry in communication and mutual understanding. By this means each side could conceivably reflexively change and modify itself.

The weight of tradition however, both 'ours' and 'theirs', vitiates so heavily against this that it is only by many instances of critical intervention such as was offered by Dodson in his address to lawyers that we can hope for the type of 'necessary discontinuity' which eventually may bring about a change in the paradigm in the Kuhnian sense of that word. "The difficulties", said Dodson, "stem from the basic cultural differences already mentioned -

It is not only a clash of individualism versus a system which identifies itself by individual relationship to the group - it is a clash of law. One law cannot sit with the other. Aboriginal law has strived to adapt and accommodate the new regime of whitefella laws. Sadly, whitefella law not only will not come halfway or compromise, it is singularly incapable of doing so. Until there is some meeting ... the two will never happily co-exist."

The 'problem' is seen by Dodson from an Aboriginal viewpoint when he says:

It is my belief that the core of the problem is total disrespect and lack of understanding one community has for the other.

The fact that police are so sensitive to any seeming disrespect by Aboriginal people towards them that they frequently react violently to any such sign would seem to suggest that they in their turn may have a similar idea regarding the 'problem'. Certainly some of their statements would seem to support this proposition. Whether or not, or how much, either side is justified in its assessment of any such lack of respect in the other tends to be obscured when real conflict arises however.

What is not ambiguous is the real site of power and control - nor was it ambiguously described by Dodson when he said (1987:5):

Meagre attempts at liaison committees, working groups, etc. are fruitless. There is no equal footing. Ultimate control invariably rests with the one party and that party's system of doing things. We need to be equal partners for these strategies to work.

Dodson was at pains to point out the dangers inherent in turning any exercise involving the shortcomings of, or culpable injustices perpetrated by, the police into "a witch hunt to find a suitable scapegoat to punish for national guilt" (The current Royal Commission of Inquiry into Black Deaths in custody could well be seen as one such exercise which could indeed detract attention from collective White responsibility for the historical and continuing subjugation, if not to say genocide, of Aboriginal people). For if police behaviour towards Aboriginal people were to be set in paradigmatic juxtaposition with White behaviour generally towards Aboriginal people over a wide spectrum of our social, legal and political lives many common characteristics of these behaviours could well become evident. It is perhaps because of this that Aboriginal voices like Dodson's are moved to cry out against the results of the unhappy clash of cultures and systems as they obtain between black and white at present and to appeal for solutions. "It is not" he says, "a relationship that is based on respect and understanding - it is a relationship that is one-sided, brutal, oppressive and unfair."

The ways in which such clashes occur and the seeds of their occurrence, are, of course, numerous. This is not to say however that they are beyond the wit of even the most naive amongst us to address and understand. While lawmakers are moved by historical and political considerations to amend laws and revise regulations, unless attitudinal changes at the enforcement level are achieved there is a danger that the right means in the wrong hands will bring about a result that still falls far too short of the ideal - a question once again of plus ca change, plus c'est la meme chose. Perhaps it is because Aboriginal people intuitively know this to be both a danger and a distinct possibility that they are cynical about, and show a somewhat disappointing lack of enthusiasm towards, many of the genuine efforts at present in motion to right some of the wrongs perpetrated against them.

Perhaps more than anything else it is important to consider and constantly to bear in mind that there is still a persistent expectation that Australia will become a homogenous society. This holds good in and is typical of many of our most entrenched institutions. This is not however just an innocent and pious hope with a genuine possibility of realisation given the correct mode of procedures and legislation; it is a false expectation based on an unjust and inequitable proposition in the first place. In relation to Aboriginal society and culture it can be seen to be particularly so.

When Dodson spoke of the 'clash of cultures' he could have been speaking of the intersection of two separate and distinct regimes of truth as defined by Foucault. For, as cited by Morris and Patton (1979:46) Foucault says of truth:

Each society has its regime of truth, its general 'politics' of truth; that is, the types of discourse it harbours and causes to function as true; the mechanisms and instances which enable one to distinguish true from false statements, the way in which each one is sanctioned; the techniques and procedures which are valorised for obtaining truth; the status of those who are charged with saying what counts as true.

It follows that the 'regime of truth' of one culture is not necessarily the regime of truth' of the other, nor will they comfortably merge. Foucault (1973:xx) spoke of the fundamental 'codes of a culture' -

those governing its language, its schemas of perception, its exchanges, its techniques, its values, the hierarchy of its practices - (which) establish for every man, from the very first, the empirical orders with which he will be dealing and within which he will be at home.

Our confusion seems to arise in that while as Whites we are perfectly aware of the regime of truth or fundamental codes of the culture to which we belong (and to which we either adhere or, paradoxically, affirm or 'prove' by resisting), we do not yet fully comprehend, despite the valiant efforts of recent 'scientific' studies and the evidence of Aboriginal people themselves, that Aboriginal people also (some would say more so, given the comparatively recent disruption of its continuity as opposed to ours) have a regime of truth embodying the fundamental codes of the culture to which they belong.

The fact that Aboriginal people, instead of fully participating in the mythologies by which Whites live, share a signifying system and alternative mythology which is largely in collision with ours, may be one of the reasons why the 'regime of truth' upon which our laws subsist is frequently perceived by them not as a regime of truth but as a puzzling and at the same time repressive apparatus against which they are invariably powerless and from which, partly due to historical reasons, they simply do not expect the dispensation of justice in their terms. As observed by an Aboriginal fringedweller (TR:1987):

The Aboriginal people has never ever trusted the police - because the police has all these powers and been able to lock up Aboriginal people whenever they felt like it, belt people whenever they felt like it. Even when I was a boy we was always frightened of the police because we knew how they used to harass and arrest the old people for little or nothing. And its still carrying on. The police in the early days even turned the blackfellas against one another through them employing black trackers to track them down. Its gone back a long ways. It started from when the first police trooper ever went out to arrest the first blackfella or shoot the first blackfella. I mean the bad feeling is still there. The Police Commissioner and the Police Minister might think the black aides are doing something for the Aboriginal people. They aren't really because the black police aide hasn't got any powers. The point is this that again there is just Jacky and the boss. I mean the boss is the policeman. The police aide - he's really a black tracker. It's the same situation all over again. The police aide is no more than a black tracker. I mean we're still in chains too because we're not being treated like the white man. I mean we are still in bondage. And now - if I do good it's my white side coming out in me, if I do bad it's my black side coming out in me. It's true. I've lived with that all my life. That's in the view of the white man's eye. Sure they can say we're free and all that kind of thing but at the bottom of the woodpile is the 'Abo'.

Advocates of the principle of equality would prefer to adhere to the notion of an absence or lack in Aboriginal people which can be filled with our regime of truth - a notion of a cultural tabula rasa, to correspond with the original concept of terra nullius, and one upon which we can impose our codes. And while informed Whites might bridle at such a suggestion the unpalatable fact remains that the latter are in a minority and, following the process of selection obtaining until very recently in the police force, are in an even smaller minority in that particular and influential institution. Happily, individual Aboriginal voices are, increasingly, being heard, and their political presence is being felt both at the domestic and at the international level. And it could be argued that unless Whites on our part become more ready and willing to participate on an equal footing with Aboriginal people an even more serious disequilibrium than exists at present will eventually result.

Dodson's accusation that so many constraints which need not always, or necessarily, in themselves be repressive, inevitably become so for Aboriginal people in their relationship with the law is, unhappily, sustained again and again in innumerable individual cases and in disparate circumstances.

These, taken together, continue to contribute towards that groundswell of resentment which surfaces so frequently and so easily in black/white encounters. Despite all this however, and as Dodson observed, Aboriginal people do strive to adapt and accommodate themselves to the 'whitefella' way as well as to the whitefella law. That the response to this should be to try to rob Aboriginal people of their remaining Aboriginality rather than to share in it is no more than a testament to ethnocentrism.

When Dodson accuses Whites of being singularly 'incapable' of coming half-way or compromising in adapting to Aboriginal mores he is of course touching on the weak side of the equation. Perhaps indeed it could be argued that Aboriginal people have already made more significant and honest advances across the cultural divide than non-Aboriginal people have towards them. The fact is that viable and valid communication is possible. The words used by Whites and the words used by Aboriginal people are not impossible to interpret in terms of communication frames accessible to speakers of English on both sides. What seems to be happening overall however is that three-quarters of the dialogic mediation is being left to Aboriginal people. This may be what prompts Aboriginal people like Dodson to deduce that White people are 'incapable' of coming half-way or of making the necessary compromises. The more sinister but realistic suggestion could be that non-Aboriginal people are, rather, tragically unwilling to do this.

Examples of the day-to-day ways in which such asymmetrical encounters come about and in which our 'regimes of truth' are seen by Aboriginal people as being imposed on them are numerous. It could be instructive to look at some fairly representative examples however to see if they contribute towards a common pattern.

Aboriginal people feel very strongly that in the enforcement of the law its representatives do not display the evenhandedness which such an activity by its very nature implicitly demands. They claim that methods of enforcing the law can themselves be instances of lawbreaking as they perceive it. In the vast majority of cases the need for the observance of White law is acknowledged by urban Aboriginal people, who do not see White law as being necessarily or always incompatible with their own standards or their own laws. They claim however, that unjust and unlawful actions are employed by the police in the enforcement of White law and that such actions are more frequently directed towards Aboriginal people than they are towards Whites.

On the rare occasions when such matters are raised in court, Aboriginal people are of the opinion (an opinion justified by results of studies such as are quoted in Aborigines and the Law) that in the vast majority of cases the police are exonerated and the official view seems to be that such incidents do not in fact take place except perhaps in exceptional circumstances when either an officer's 'humanity' or the concept of 'reasonable force' is customarily invoked. The results and the outcome of succeeding Commissions of Inquiry, such as the Lucas Report in Queensland among others, into police malpractice provide little comfort to those seeking reform. Sydney Lawyer, David Brown (1982:302) in exploring the struggle "to develop strategies of combat with ... agencies of reaction" observed:

We need to examine how this authoritarian consensus in a particular situation is constructed, what are the economic, political and social forces that underlie it, what interests are involved, and how these are connected.

And while individual officers may resent such stereotypical categorisation, and feel irked that they should all be regarded in such a poor light by Aboriginal people, not enough is being done to change either the image or the behaviour which gives rise to it. In fact many Aboriginal people would argue that that is the way the police want it - that somehow they, the police, see fear as their most potent weapon. Numerous instances of verbal threats are cited by them to support this conclusion, such as the following (TR:1986):

I haven't met a policeman I can trust - No. I know a couple of policemen - yes, but I know for a fact that if there was a debate where the bad one said something and then if it came to the crunch where I had to go to court - the good bloke would never go against what the other bloke had said. I feel that where it comes to Aboriginals and police it seems to me it's them and us. There's two sides. We know that. ... I went through a lot of bad experiences with the police - when they put a gun to my head and pulled the trigger and things like that with blank bullets - and they threatened to throw me in the river with a stone tied to my feet and all that. That was down in the East Perth lockup when they were questioning me ... I didn't give them a statement but they just really came in to me and kicked me around the floor and things like that. I was there for about fifteen minutes but it seemed like I was there for two hours but it was a good thing Gladys went and got a lawyer and came down. When they asked at the desk they said I wasn't there - Oh no he's not booked in'. But Gladys knew the car they picked me up in - it was a plain car - and the lawyer knew - he had an idea of where they must have had me. It was in a top room and that's where they had me and when he knocked on the door of course they had to open the door - it was locked. The door was locked and he yelled and knocked and they opened it but I hate to think of the guys they take in and nobody knows they're there. Apparently it's a special room. That was fifteen years ago - but for sure it's still happening. ...

Ways of Speaking

Aboriginal people,whether they be suspects or witnesses, are likely to be prey to particular anxieties and resentments in the presence of the police. These may have their origins either in personal experiences of their own or be brought about through vicarious participation in others' recorded histories. The police officer concerned with the Aboriginal suspect or witness in 1990 and faced with his or her 'cheeky' behaviour may well be unaware that less than forty years ago it was not unusual for witnesses as well as suspects to be taken prisoner in leg irons and neck chains and made to march one behind the other, sometimes over long distances and in punishing temperatures. They would then be kept imprisoned in cells for the convenience of White authorities pending a trial. For Aboriginal people, whose culture is still a predominantly oral one, this is a comparatively recent memory. The fact that it may have taken place in an isolated part of the country, and they themselves are now urban fringedwellers is not sufficient for them to be able to detach themselves completely from the traces of its long term effects; the fact that the motive behind such acts by a solitary constable may have been for him a pragmatic one as he perceived it does nothing to ameliorate the anger due to such physical and spiritual indignity which is unfailingly passed on. And whether or not we choose to dismiss or ignore these aspects of communication the urgent fact remains that such past contacts strongly persist in shaping present black/white relationships.

The word 'cheeky' is generally associated in standard English usage as referring to impudence or disrespectful behaviour displayed by someone, usually a child, towards his or her elders and 'betters'. In Aboriginal English the word has somewhat more weighty connotations. It is used to describe behaviours which can variously combine disrespect with hostility or aggression. Frequently, police are perceived as partners who act as foils for one another, the one seemingly friendly and affable, the other - the 'cheeky' one - manifesting the more obvious fear-inducing and menacing aspects of power and control. Aboriginal people are on the whole under no illusion as to who will ultimately wield control over them in the interview situation. This control derives not only from the institutional site of the law in itself but also, and more immediately, from the common expectations of Aboriginal people that being 'bashed' or 'belted' by police is a normal part of being arrested. And whether or not these expectations are well founded (and there is no dearth of compelling evidence that they sometimes are) they are nevertheless invariably present and real every time a police officer questions a suspect. Nor are they totally absent when the interviewee is merely a witness.

The possibility of sitting down to have, in the words of the Borroloola women, "a quiet talk - an understanding talk" therefore is bedevilled from the start in the case of the most well-intentioned police officer or 'co-operative' Aboriginal person. The former may well indeed have similar aims and aspirations to the latter: A sergeant in frequent contact with fringedwelling Nyungars articulated it as follows (TR:1988):

If an Aboriginal wants to sit there and talk to me in a friendly manner - or at least a straightforward manner - doesn't have to be a friendly manner - then you do exactly the same - and you sit there and have respect for each other. But if you get someone like the man who came in yesterday - yelling and screaming - before you know anything about him - well you can't have respect for a person like that ... You treat people as they treat you - whether they're Aboriginal, White or Indian or whatever - you get the same sort of respect back ... I try to treat them the way they treat us. If they come in and they want to talk about things then we'll sit down and talk - and if they come in and they're arrogant and that kind of thing allright then possibly the questions are a bit harder.

For these and many other reasons therefore, despite the apparent reasonableness of such mutual expectations, the "conditions of possibility" for their realisation are persistently and notoriously absent in encounters between Aboriginal people and police. Quite apart from the predictable and antagonistic response to resistance which is central to any power struggle and gives shape to its expression there are additional dimensions to the police/Aboriginal relationship which both intensify the resistance and sharpen the means of power. To the inbuilt racism which tends either consciously or unconsciously to inform police/Aboriginal relations in general is added a resentment that Aboriginal people should somehow demand or expect to be treated any differently from (especially any better than) other Australians.

Nor can any of this simply be dispelled by means of the symbolic invocation or facile expression of implausible notions of equality under the law or sameness under the skin. We may resent the still fresh sense of injustice shared by suspect and witness alike as something which has nothing to do with our personal or immediate responsibility; we do not nevertheless have the capacity easily to dispel it, however much, or however sincerely, we might by wishful thinking hope to do so.

Fired by the memory of past wrongs therefore, and accelerated by the expectation of continuing injustice, or even the use of force, it is perhaps not surprising that, frequently, the first response of an Aboriginal person to an advance of any sort by a police officer is what would be described in Aboriginal terms as 'cheeky'. This might appear to be a mere pre-emptive strike in a most unequal contest and one not calculated to affect a well-trained officer of the law. By taking such 'cheeky' language behaviour as the cue for his or her own repressive response however the latter may well without realising it be constructing the very violence for which the Aboriginal person is likely subsequently to be blamed.

Repetitive patterns of this kind are as familiar to Aboriginal people as they are to police and, in the 'typical' police/Aboriginal encounter, provide that never ending chain of self-fulfilling prophesies which constitute the structure of contemporary Aboriginal/police mythology. From many observations, such as those cited above, it would appear that these patterns of incomprehension and antagonism are set in motion by what might on the surface be seen as justifiable communicative responses. Following Bakhtin's dialogical principle referred to earlier (cited Todorov 1982:43) "the utterance is not the business of the speaker alone but the result of his or her interaction with a listener, whose reaction he or she integrates in advance": not only, according to Bakhtin, is the utterance the product of the interaction of the interlocuters but, more broadly speaking, the product of the whole social situation in which it has occurred.

It might appear that the avoidance of surface antagonisms, whether of a verbal or a physical kind, would facilitate "a quiet talk, an understanding talk" between equals or "a straightforward talk" between people who evince a respect for each other. The question has to be asked however, whether the police officer would consider it appropriate to so detach himself or herself from what might be described as the particular professional responsibility with which s/he, rather than his or her interlocuter is invested as to enter such a dialogue on equal terms. For if s/he is to fulfil the office to which s/he has been appointed s/he must inevitably pursue a form of communication which inhibits rather than promotes genuine understanding; which is "strategic" rather than "valid" in its nature - a form which while it is derivative of the notion of reaching genuine understanding in ordinary language communication, and only made possible because of the existence of such a model, is yet nevertheless of a quite different order from, and only existing in "parasitic" relationship with, that model.

Parallels can be drawn here between both the lawyer/Aboriginal client communication and the police officer/Aboriginal suspect communication - for in each case the strategy employed is designed to abstract broad patterns which are explanatory of a multitude of particular events in the interests of constructing an alternative viable narrative for a particular purpose. In both instances it becomes a question of modelling one discourse onto another: the fitting of the ordinary account of events in the world onto the Procrustean framework of legal discourse - in each case the Aboriginal person is required to furnish fragments of the discourse which will be produced in court.

And if during this process, as a result of a "mirror image" response on the part of a police officer to a 'cheeky' or, as the latter might perceive it, "arrogant" expression or action on the part of the Aboriginal subject, ("treat them the way they treat us"), antagonism or even violence ensues, the question has further to be asked, and honestly answered, as to whether the police by pursuing this philosophy and course of action are not in fact themselves very likely constructing that violence in a way that they are not prepared to recognise yet do not hesitate to deplore. And while experiencing a to them "typical" exchange with an Aboriginal person they frequently fail to see that they are in fact by and large both directors and choreographers of the resultant scenario.

The application of the 'common sense' criterion when selecting modes of speech appropriate to the situation incorporates both Halliday's notion of 'register' - how one speaks depending on what one is doing at the time, and Bakhtin's 'dialogical principle' which is oriented towards the being of the addressee, towards what that person is: if you are a police officer talking to an Aboriginal person about whom you already hold certain assumptions, ergo you address him or her according to those assumptions. For example, an Aboriginal male could indeed expect to be addressed in a particular manner by a police officer. As observed by Sgt. X (TR:1986) "Aboriginal women are a lot harder to interview than men ... With a man you can talk a man's language - with a woman you can't. Whereas she can swear and curse at you - you're not supposed to do it back at her ... Our department would certainly take a dim view if you sat there and started swearing at a female ... But if you've done it to a man and he has done it to you ... it's just another way of talking ... of treating each other. Even if they're swearing at you it doesn't mean to say they're abusing you. It's their language - so you use their language back".

But there is a catch. And it places the Aboriginal suspect in a position of 'double jeopardy'. If a policeman speaks to him or her in a certain way and s/he replies in kind s/he is in a very real sense doing no more than obeying the most basic conversational rules invoked by the form of address used. In doing so however with a police officer s/he unwittingly activates institutional prohibitions which protect the latter by giving him a privileged and exclusive right as a speaking subject but which at the same time lay his addressee open to charges of a criminal nature. The performative aspects of the police officer's speech can, in effect, act in such a way upon the performative aspects of the Aboriginal's speech as to act upon his 'actions'. And, not infrequently, actions which start out as being of a merely discursive nature quite quickly deteriorate to being those of a physical or violent nature.

The following extract from an Aboriginal narrative (TR:1984) of one such episode provides an illustration which, Aboriginal people would argue, is not at all untypical:

... When it was closing time we all walked out into the street where we stood in a group and was having a talk, when this police van pulled up. Out jumps three policemen and told us to 'piss off'. I turned around to him and said 'What for?' and he said - 'you black bastard, if you don't piss off I'll lock you up'. So I said 'Piss off - where to Mr. Policeman?' He then said 'I've had enough of you, you cheeky bastard. Fred' - (his mate), he shouted, 'come over here I got a couple of candidates for you'. The two of them grabbed me and I pulled back and said 'what the fucking hell's going on?' and the cop called Fred lost his hat and the third cop rushed over and said 'I saw that, resisting arrest'. The five of us blackfellas all got put into the van and the one called Fred said 'Don't ride in the back Bill, they're dangerous'. That's how we arrived at the central lockup. ... I got sick of waiting, so I jumped up and said 'Look policeman, what's all this about?' and he said 'Shut up, I've had enough of you, big mouth'. Then above five minutes later he came across and said 'Righto, what's your name?'. When I told him my name he read out the charge. I said, 'I've had enough of this bullshit because you didn't tell me I was being arrested'. He didn't answer me, he just punched me in the face. I punched him back, in the face. Then four policemen rushed to his rescue, and they told me I was going to get the book thrown at me.

What unfailingly seems unjust to Aboriginal people is that police officers seem to them to enjoy a dispensation from the observances of the very laws regarding verbal or physical abuse which Aboriginal people are accused of breaking. The fact that a police officer replies in kind or retaliates forcefully in kind, or even initiates behaviour which for the Aboriginal person would be categorised as an offence, is deleted from the key court narrative to the overall disadvantage of the Aboriginal person concerned. Significantly, many of the offences for which Aboriginal people are punished (as in the instance quoted above where the Aboriginal offender in question was sentenced to three months' imprisonment) are committed after and not before their contact with the police in the first place. And while they are very well aware of what they see as a discursive construction of their culpability they tend nevertheless to become actively and fatalistically involved in what they feel to be an inevitable process.

The following two examples (TR:1987) illustrate this point:

Of course we get the usual - stopped by the police. A cop came to me on Aberdeen Street and he said to me 'whose car are you driving?' - just a constable - probably been in the force for twelve months or something - and I said to him 'Why do I have to answer that question?'. I said 'There's a lady just pulled up in a Volvo - go and ask her whose car she's driving. If it's good enough for you to ask me it's good enough for you to go and ask her'. He said 'That's not the issue, I'm asking you'. And I said 'I'm not telling you. I don't have to give you my name and address unless you've got a reason to ask me. I don't have to tell you - but you're just casually walking around and thought you'd come up and ask me whose car I'm driving. Is it because you think it's too good for an Aboriginal to drive? ... I'd like to know the reason because it's not the first time I've been asked that and there must be a reason behind the question.' ... It makes you - well it's happened to me before. I feel that I'm not a citizen of this country. I feel that I'm an alien. I don't feel that we were the first inhabitants here at all. In actual fact I feel that I've been washed up on some shore like some of the people who abuse and criticise us - and we're the aliens and not them. It's just another form of hassle or whatever you like to call it. I mean that type of question could lead to abuse. Then before I know where I am I could be up for abusive language and things like that. Now that's just another way of opening a trap for you to put your foot in it. Now I know a lot of White people don't go through these things. It's only Aboriginal people.

I was sitting in the park one day. They (the police) came to me and they said 'What's your name?' and I said 'well, what do you want to know for?' 'Well, we've come to clean the park up'. I said 'Well that's fine by me - go and clean it up'. He said 'Yeh well I'm intending to clean it up - I want to get you off the park'. I said 'So I'm counted a bit of rubbish on the park - am I dirtying the park?' He said 'Oh no I just want to know your name and address'. I said 'well I just ain't going to give it to you because if I'm not allowed to sit in the park - this park is for the liberty of the people like me and that's why we pay taxes so we can come out and sit and enjoy the park.' He then called the sergeant over because he couldn't handle it and the sergeant came and said 'If I want your name and address I'll get it'. I said 'Oh well you won't'. He said 'I'll arrest you for not giving your name and address'. I said 'Well that's fine you do that'. So for no reason at all he arrested me and took me down to the lockup. I had to go to court and the magistrate found me guilty of not giving my name and address. The magistrate found me guilty - just for sitting in the park - no other reason. ... Before they came to me they came to two more Aboriginal people sitting in the park and I saw them leave. I knew they was going to come to me after these two people left. Of course that happens all the time. The police was asked in court by my lawyer is it their orders to send a police patrol around the park and see if there's any Aboriginals on the park and he said 'Yes - something like that'. He said 'We say we're going to go and do a clean up on the park, and that's what they were talking about'. Even from my childhood I see it in my country town. Cops used to tell us we have to be out of town by six o'clock - before sundown, and for no reason at all.

Questioning not only involves asking for information, but also carries a command function. Questions are speech acts which place two people in direct immediate interaction. In doing so, they carry messages about relations - about relative status, assertions of status and challenges to status. Thus it is very difficult for a person in a clearly-defined authority role to ask a pure information question - that is, to ask a question which is perceived as being just about facts and not also about fixing responsibility or threatening control. And it is equally difficult for a person occupying a junior or inferior status to ask a pure information question, because he or she must always attend to the possible challenge implications of his or her questioning.

Although it could be argued that such aspects of communication are not specific to Aboriginal people but obtain also in instances involving non-Aboriginal Australians, the claim above that 'White people don't go through these things' makes explicit a frequently expressed belief by Aboriginal people that this is indeed the case. They can invariably cite instances to justify such a contention.

Two of the many Aboriginal women to whom I spoke (and in these two particular instances the women in question are employed in positions of relative authority compared with the majority of their people who have no hope of employment) volunteered the following examples of what they saw as instances of harassment and discrimination by police (TR:1988):

(a) I feel that it's different for Aboriginal people than for Whites. Just as an example - I work for a lot of youth out in our area and at night-time when the kids go out late night shopping on Thursday- expecially on Thursday nights up Mirrabooka, the police on patrol if they see kids walking along. I mean if there's White kids walking in a bunch, black kids walking in a bunch, nearly nine and half times out of ten it's the black kids that they're stopping and questioning. I mean I've been there on a couple of occasions when there's been about five Aboriginal kids in a circle or walking down the shopping centre and the police have come up and said to them - No more than three kids in a group'. It happened with my own kids. Then these White kids come along and they're all walking together. He walks straight past them and he doesn't say anything. And I said 'What's the difference between our kids and those kids?' and he said 'they aren't troublemakers'. (b) They (the police) were going to take me. I was sitting in the park one day and the police were going to take me for soliciting and I was sitting there talking to a friend of mine and they were going to take me for soliciting - and I live here and I work in the next block in Palmerston Street and they were going to take me for soliciting. They came up to me and they asked me my name, my date of birth and that and I gave it to them and they asked me how long I had known the person who I was talking to and I told them and they asked me ... and the sergeant walks over and he goes "Yes - we'll take her". They were going to take me. They were seriously going to take me. And I stood up and I said "No", I said, "you can't" I said "because I live down there and I work up there" I said "there's no possible way that you could keep me away from this park" and then they said something about Aboriginal girls working down there as prostitutes and they was going to just take me and all I was doing was sitting with my friend. White girls can sit in that park and they don't get hassled. We've got a dog. We can't even take that dog down there.

As noted by Jameson (1984:xi), one aspect of pragmatics, the analysis of language situations and 'games', and of language itself as an unstable exchange between its speakers, is the "taking of tricks" - a figure of speech favoured by Jean-Francois Lyotard. This is described by the latter as "the trumping of a communicational adversary, an essentially conflictual relationship between tricksters - and not ... a well-regulated and noise-free passing of tokens from hand to hand". Lyotard (1984:16) bases his theory of games on agonistics as a founding principle. Each language partner, when a 'move' pertaining to him or her is made undergoes a 'displacement', an alteration of some kind that not only affects him or her in the capacity of addressee and referent, but also as sender. These 'moves' necessarily provoke 'countermoves'. "Everyone knows" says Lyotard "that a countermove that is merely reactional is not a 'good' move". He argues that reactional countermoves are no more than programmed effects in the opponent's strategy: "they play into his hands and thus have no effect on the balance of power".

Drunkenness as a Crime Constructed by Discourse

In cases of drunkenness, very frequently the state of being Aboriginal and drunk occurs before the arrest but, quite frequently, the added charges of "resisting arrest", "disorderly conduct" and, occasionally, "assaulting a police officer in the execution of his duty" arise after the arrest, so that, in a very real sense, as previously noted, the more serious charges for which the arrested person may spend time in prison can be seen to be discursively produced as a result of the arrest rather than being the original justification or cause for that arrest.

It is a fairly common Aboriginal experience for there to be a clash of definitions between their perception of what constitutes drunkenness and how it is categorised by White policemen. In addition to this cult of difference in the construction of drunkenness across boundaries, the existence of a White racist assumption that if you are Aboriginal you are, ipso facto, likely also to be alcoholic, can be seen to influence some police approaches at least and cannot be discounted as a persistent hazard in the communicational encounter between themselves and their Aboriginal addressees. The following Aboriginal narrative (TR:1986) not only illustrates this but highlights, in addition, how practices of responsible self-regulation in Aboriginal society can be unwittingly frustrated by the very people who might well be expected in the line of their professional duties to enable and foster rather than to destroy them.

I was standin' up near the drinkers and the police come straight over to me and said 'you're drunk'. I said 'no, I'm not'. He said 'Did you have a drink?' and I said 'Yeh before but not from there'. That's when I was home when I had three stubbies. That was about 10 o'clock and this was in the afternoon. He said 'You was drinking in the park - I seen you'. I said 'You never seen me'. He said he told me before not to drink in the park. Never even talked to me before - don't even know his name. I went to court for it. I thought there was going to be a remand for it. I didn't know it was a court hearing then. Donald Wallam was with me. He went up and he pleaded guilty to drunk, which he was, and he didn't know what he was pleading there. He thought he was just pleading guilty to drunk - He didn't know he was pleading guilty for holding up the beer bottle which he does not drink - the beer bottle in the park - 'park drinking'. And he doesn't drink beer he drinks V. O. port. They was sitting down I was the only one standing up. Dean Moody was the one sitting down drinking. Well in court the prosecuting sergeant asked the policemen - 'which one of them was drinking the bottle of beer?' and he got stuck - he only just remembered Donald Wallam was up there and then he said 'Donald Wallam'. He said the three of us was standing up. He parked across the road and he seen the three of us lifting the bottle up to our mouths. That's a lot of lies. He told a lot of lies. What a job to do - picking up drunks in the park - What is he doing around on the park then. I thought they was charging us for drunk but it was for park drinking, drinking beer out of a bottle in the park. We were 'guilty' even before we went in. The judge just said to me 'Have you got any more witnesses?' I said 'Yeh, Donald Wallam the bloke who you just fined then - any chance of holding the court up till I get him?' He was only just sitting outside waiting for me. But they didn't call him when I wanted. I just got a fine. Got my word rebuked - that I was lying. The constable was - you know - a white person. They couldn't take my word against a police officer. He wouldn't lie. I was just there all day with the car. I stops here in the park, waits for mum and them when they want to come home. I get out and wait for all the loads. I take about six loads home - some home here (Saunders Street), some to the camps, some wherever they want to go. I stop 'till the last. Then come home after. Yeh I told them. I said I just got out of the motor. I just got out to let my mother and them go home. They said 'You're still drunk - are you getting in the van with the rest of them'. That's what they said. I wasn't even slurring my words. I weren't even staggering. The only thing I was standing there talking in a decent manner. They didn't give me a test. They just give me word that I was drunk - that's all. I got all the witnesses the other way: Auntie Kathie next door, I got Donald Wallam and Dean down there and most of the people on the park. I weren't guilty. I never drunk that see - and plus - he lied on the Bible. That's a thing where I'll never do. If I'm guilty I plead guilty. I was reared up as a Christian - to believe in the Bible. I might tell lies some other place but not on the Bible.

Taking the twin concepts of Habermas's "deceptions with a language" (as opposed to "deceptions within a language") and Foucault's notion of a "regime of truth" or "general politics of truth", it is possible to see how Aboriginal people can be disadvantaged in their relationship with White law and its representatives. Acknowledging Foucault's regime of truth as accurately describing the discourse of law and its functions, it is useful to extrapolate from this that the 'mechanisms and instances' which enable one to distinguish true from false statements; the 'way in which each is sanctioned'; the techniques and procedures which are valorised for 'obtaining' truth; and the status of those who are charged with saying what counts as 'true'; equally accurately describe the practices and processes whereby Aboriginal people are effectively constructed as lawbreakers.

The fact that the speaker above complied both by "talking in a decent manner", and allowing himself to be arrested and getting into the van, even while it earned him a conviction and fine which he deemed unjust, at least spared him the more serious charges of resisting arrest or 'disorderly conduct' to which many such encounters give rise and which can earn a prison sentence for the Aboriginal person concerned. The yardstick by which the police officers concerned measured his alleged drunkenness however was quite clearly also at variance with any he or the Aboriginal people who were his 'witnesses' might be expected to employ.

It is true that most Aboriginal people will have been surrounded by people within their family and kin system who, practically without exception, will have suffered severely either directly or indirectly from alcoholism in one form or another. This is not by any means to say that they are all alcoholics however and many do not drink at all. But just as it seems impossible for Aboriginal people to approach police with confidence, so, equally, does it seem difficult for the police to approach Aboriginal people with an 'open mind'. Aboriginal drunkenness syndrome seems to present to many Whites, including police, as a non-remedial situation and in consequence police tend to treat them accordingly.

The 'facts' as presented by the Prosecuting Sergeant in court, together with the testimony of the arresting constables, which earned a conviction for the speaker, would have been presented according to the formal ritual of many other similar such charges. The regime of truth which validated and upheld them was proof against any protestations of innocence which he as the accused might be moved to make. The knowledge that he was taking part unprepared and unrepresented in a hearing, and not being remanded for a future time, was not available to him at the time as knowledge but merely functioned powerfully to facilitate the routine business of the court. His request to 'hold up the court' in order to call in a witness who had just been convicted and fined and was sitting outside was ignored - an action, or inaction, which functioned both to negate his right to speak and, by extension, to invalidate both himself and his witness. "Got my word rebuked - that I was lying. The constable was a White person. They couldn't take my word against a police officer. He wouldn't lie". In contrast to the official one which earned him a conviction and fine, the speaker's narrative includes both a for him true account of 'the facts' as he and the other Aboriginal people present at the time perceived them, and, at the same time includes a revealing metacommentary on the Justice System as Aboriginal people see it.

Because of what Aboriginal people perceive as a considerable asymmetry between their treatment under 'the regime' and the treatment of Whites under the same regime, their frustration and bitterness continues.

The notion of action upon the action of 'others' which Foucault sees as co-extensive with every social relationship is particularly evident in the construction of Aboriginal culpability. The various procedures used in X's case - the strategy employed by the police to secure a conviction - rationality functioning to arrive at an 'objective' - effectively functioned to deprive (him) of his means of combat and to reduce him to giving up the 'struggle'.

X's experience confirmed for him a sense many Aboriginal people have that they are pre-judged before any trial and that their word is discounted: "We were guilty even before we went in" (the general 'politics of truth'); "got my word rebuked that I was lying; the constable was a White person; they couldn't take my word against a police officer" (the status of those who are charged with saying what counts as true'); "they said you're still drunk; are you getting in the car with the rest of them; that's what they said; I wasn't even slurring my words; I weren't even staggering; the only thing I was standing there talking in a decent manner; they didn't give me a test. They just give me word that I was drunk that's all" (the techniques and procedures which are valorised for obtaining 'truth').

What we may be ignoring is that these techniques and procedures are frequently, as they were in X's case, critically observed by the Aboriginal participant, even while he or she is their compliant subject.

There is a high prevalence of incapacitating ill health among Aboriginal people in the lower socio-economic group. Many have a horror of hospital akin to their dislike of being imprisoned and they tend to seek medical help as a last resort rather than, as many non-Aboriginal people do, as a preventive measure. There is a racist tendency to classify Aboriginal people as either potential or actual drunkards. These two things in conjunction contribute towards the cult of difference in the discursive construction of Aboriginal drunkenness. Individual police can and do deny this tendency, pointing to Aboriginal people of their acquaintance who do not drink. It is usual however for Aboriginal people so designated to be reported as belonging to one of two categories: either 'proper' tribal Aboriginal people uncontaminated by urban influence or urban Aboriginal people who have succeeded in holding their own in White society. They do not as a general rule expect to find evidence of sobriety amongst the more mobile, less stable and less easily categorisable areas of identity in between however. The latter tend to be generically dismissed by means of generalisations of one kind or another. These are sometimes expressed in 'good humoured' White pleasantries when referring to Aboriginal people; sometimes 'jokingly' employed in cross-cultural banter, and sometimes as in the following extract (TR:1984) seriously engaged in as an oppressive practice in encounters purporting to be of a legitimate nature. Drunkenness by association too seems to be a particular hazard for Aboriginal people.

I got arrested ... I got clipped under the ear for nothing - and then he kept on saying to me 'What did you have to drink'? and I said 'I don't drink I'm a teetotaller, I drink tea, maybe cool drink, glass of milk, drink of water'. Oh' he said you're only just having a go at me' - See an' I think that's when I think I really got him harassed and he got wild you see and that's when he clipped me. But I was only speaking out the truth. But he looked down on me straight away. It stuck in my mind too that they've sort of got you judged before they even come in contact with you. That sort of thing. They've got you worked out in their way which is wrong. ... All the time I had contact with him he struck me - well this is my own opinion now but I'm never far out on the truth but I reckon he's - he doesn't like you - I'm just giving it to you straight - He doesn't like 'niggers'. He's called me 'nigger' from time to time - and I said I'm not a 'nigger' I said 'Niggers come from America' you see - and he probably didn't like the way that I was answering him back, which was the truth. The way he talked all the time I just thought in my own mind that he had something about our colour of our skin. That's putting it a more polite way - and then he started mentioning about young Aboriginal boys who goes around pinching cars. He said - 'if I catch 'em I'll flog the hell right out of them'. I said, you must remember that it goes on both sides - it's not a one-sided story. I said - 'you can't judge a book by its cover - you must read through it first'. But he probably thought that I knew a bit too much as then you see he tried to use brutal strength on me.

In the absence of alternative forms of knowledge regarding 'truth' or 'reality' in episodes involving Aboriginal collisions with representatives of the law it is possible that those exerting control will see themselves as following the dictates of 'common sense' in directing their actions and behaviour. Couze Venn [1984:111), in exploring the proposition that the politics of theory, personal politics and the politics of social change are inextricably entwined, challenges such appeals to common sense as a criterion of rationality and reasonableness. Common sense, he argues, is what the dominant discourse in any specific field asserts to be true and to correspond to reality ... it works for the strategies that enable the dominant claims about the real and existing power relations to appear rational and objective; it forces opposing views to establish their rationality and intelligibility according to norms that already favour that which they oppose.

This would appear to be a reasonable description of one of the many dilemmas in which Aboriginal people are so frequently trapped, even allowing for the best intentions of those claiming to have their interests at heart: "Contentious knowledge is left open but only as a problem for philosophical debate, leaving everything else to be referred to common sense ..." So it would seem particularly irrational to expect Aboriginal people to endeavour to prove their integrity as individuals according to the standards of the particular White norms which they themselves consider to be the principal instruments of their oppression.

Greta Bird (1987:5) in her recent study of race and the construction of crime notes that throughout the whole history of European settlement, White people have expected a subordination from Aboriginal people:

a recognition of the superiority of white people and white culture. At the time of conquest, florid notions of race were extant and, although in theory there is now a recognition of the equality of all races, in practice the superiority complex of white people exists today, and is part of the construction of Aboriginal crime.

Bird herself rejects 'biological' suggestions that certain races have a 'genetic' propensity towards drunkenness - a notion to which many white Australians subscribe. On the contrary, Bird (1987:38) is of the opinion that the use of alcohol is, rather, "a meaningful response to a specific form of oppression". Such oppression, she strongly believes, and on the basis of considerable research and observation, to be sited in:

dispossession from the land, an imposition of political control, economic marginalisation within a capitalist system, and close contact with the expropriators of the land in a relationship of subordination that allows no legitimate avenues for the expression of that anger.

A report by Dr. Carol Watson, research officer at the Northern Territory Drug and Alcohol Bureau on a study by that body, completed in 1988, in fact (as reported in The West Australian, March 26, 1988 p.2) claimed to have dispelled the myth that all Aboriginal people were big drinkers. The study found that: 60% of NT Aborigines did not drink alcohol, compared with about 12% of the general Australian population; 80% of Aboriginal women abstained from alcohol; Aborigines have a much better chance of coming to terms with alcohol use than White Australians because they don't have a long history of it and they are much more open about it. The fact that over two-thirds of the Aboriginal people who did drink drank to dangerous levels under National Health and Medical Research Council guidelines does not justify the arbitrary labelling and categorising of all Aboriginal people as being particularly vulnerable to alcohol.

The construction of drunkenness as a crime in itself has more to do with the overall resentment by the dominant culture of anything that is construed as demonstrating Aboriginal refusal to conform to imposed 'White norms' than it has to do with law or justice as such according to Bird. She goes on to cite (1987:2) numerous overseas studies in Britain and America which have pointed up defects in research purporting to show a link between alcohol use and crime and suggests that since alcohol use is no more than indirectly linked to crime, if at all, there is "no cogent reason for criminalising (it)".

To support her thesis that the policing of Aboriginal people for drunkenness is in actual fact in reality the excessive policing of Aboriginal people per se Bird (p.21) notes that where in recent times drunkenness as such has been decriminalised, as for example in South Australia, where there is no longer an offence of 'being drunk in a public place', "there are indications that interactions on the street may be little changed".

Acknowledging that the concept of decriminalisation is a problematic one, and that alternative procedures for dealing with public inebriation could well deteriorate into a form of 'paternalistic detention' which would also be unsatisfactory, Bird further suggests, (and I have in my own fieldwork heard similar suggestions from concerned Aboriginal people themselves) that "even in the event of drunkenness being decriminalised, Aborigines are likely to come before the courts on other 'street' charges".

The task of law reformers therefore to keep Aboriginal people out of the criminal justice system is by no means a simple one. Equally serious and worthy of attention is Bird's substantiated claim (1987:21) that:

many Aboriginal people have multiple convictions for public drunkenness, but the fact of conviction is not their main concern. Their concern is with police attention on the street, with intimidation, rough handling and abuse, and the discomfort of drying out in the police cell. This scenario is possible under the reformed legislation, where the emphasis is quite clearly on arrest and detention without trial or hearing.

Setting aside the more obvious aspects of racism and discrimination therefore to which Aboriginal people are all too frequently subjected, there seems little doubt that even when these are absent problems of communication still bedevil in a very serious way the efforts of even the most well intentioned on either side of the cultural divide to have that 'quiet talk' espoused by the Borroloola women.


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