Systemic racism is not a glitch in our institutions, it is a design feature – and the seeds of it lie in our constitution
In my years of reading reports, attending inquests and watching new inquiries restate old findings, I have asked myself the same question that haunts so many Indigenous lawyers, activists and academics: why does nothing change?
The machinery of reform keeps turning. Policies are rewritten, programs renamed, strategies relaunched. Each generation of government promises transformation. And yet the outcomes remain stubbornly familiar. Rates of incarceration continue to rise. Indigenous children are removed from their families at ever higher numbers. After a while, the pattern becomes impossible to ignore.
Aboriginal rights icon and historian Uncle Gary Foley observed: “We have never had so many First Nations lawyers, but we have never had so many people in prison.” His words have stayed with me because they capture a truth that statistics alone cannot. Representation without transformation changes very little. Inclusion, without structural change, leaves the machinery intact.
So, why do rates of overrepresentation in the criminal justice system and out-of-home care continue to climb when the evidence for reform is so clear?
Part of the answer lies in politics. The things that work – community-led prevention, early intervention, self-determination – rarely align with what is politically expedient. “Tough on crime” slogans win headlines: the slow, patient work of healing and rebuilding does not.
But there is another answer, and it is harder to sit with.
These systems keep producing the same outcomes because this is what they were built to do in a colonial state.
The Coalition wants ‘discrete’ First Nations content in schools. But children must be taught to critically assess concepts such as national pride | Tony BirchRead moreThere has never been a moment in Australia’s history when the underlying purpose of these institutions was consciously dismantled and reimagined. Instead, the structures have been modernised, refined and rebranded – but never fundamentally transformed.
The police, the courts, the welfare agencies were not designed to empower Aboriginal people. They were designed to contain, manage and control. That design has never been seriously interrupted.
Too often, the question we ask is how to make the criminal justice system fairer, or less discriminatory. How do we fix the system? Recruiting more First Nations people as police officers, lawyers, judges, court staff, prison officers or child protection workers is often presented as progress. And that work is necessary and matters. It is difficult and frequently carried out at great personal cost.
View image in fullscreenAboriginal prisoners at The Quod, Rottnest Island, WA in 1893. The justice system is a living legacy of colonialism, writes Larissa Behrendt. Photograph: State Library of Western AustraliaBut co-option is not transformation. Changing who operates the system does not, on its own, change what the system is doing. The cultures of these institutions are resilient. They absorb reform, neutralise challenge and return to form.
This is why working within them can feel like hitting your head against a brick wall – why every attempt at change is met with resistance, delay or quiet reversal. The system pushes back because it is doing exactly what it was designed to do.
Recognising this is not an act of pessimism. It is an act of realism.
For me, it was also an epiphany. It forced a reckoning with my own approach to advocacy and reform. Understanding that these colonial systems continue to operate according to their original design changed how I understood my work, my role and the limits of what was possible within existing frameworks. It clarified why tinkering around the edges was never going to deliver meaningful, lasting change for my clients or my community.
The law, the police, the courts, the bureaucracies – these are not neutral forces occasionally corrupted by bias or failure. They are the living legacy of colonisation, continuing the work they were created to do. The deaths of Ms Dhu and Naomi Williams were not aberrations, nor were they the result of individual malice alone. They revealed the deep dehumanisation woven into everyday interactions between First Nations people and the state – from law enforcement to healthcare.
Systemic racism is not a glitch in these institutions. It is a design feature. Nor is understanding the machinery in this way an act of despair. It is an act of clarity. Because only when we recognise how deeply colonial logic is embedded in our institutions can we begin to imagine something beyond them.
And if the machine endures, it is because its blueprint still lies in place, etched into the very foundations of the nation.
To understand that design, we have to return to where it all began. To the document that enshrined exclusion and inequality at the heart of the Australian state itself. The seeds of structural racism are not hidden. They are written plainly into Australia’s foundational law.
View image in fullscreenLeetona Dungay, the mother of David Dungay, who died in police custody in 2015, at the front of a Black Lives Matter protest march in 2021. Photograph: Richard Milnes/REX/ShutterstockIt is impossible not to admire aspects of our democratic system. There is much to value, and compared to many democracies, ours has endured with stability and restraint.
And yet, alongside that admiration, something else is impossible to ignore. The constitution – drafted in the 1890s and passed by British parliament to come into effect on 1 January 1901 – is so often treated as neutral, a technical instrument, that its silences are rarely interrogated.
The document that underpins the cornerstone of the legal system I studied in law school and spent my professional life working in was drafted at a time when Aboriginal people were not counted, not consulted and not imagined as part of the political community it created.
The constitution spoke confidently of “the people” while defining them in ways that excluded the First Peoples of the continent. This was compounded by policies that excluded their participation in democratic processes – such as the right to vote.
Constitutions are not abstract. They shape lives.
Alec Kruger, known as Bumbolili, was a Mudburra man born on the banks of the Katherine River in the Northern Territory in 1924. Like thousands of Aboriginal children, Alec was taken under laws that made removal not only permissible, but routine. He was taken from Donkey camp to Kahlin compound in Darwin, removed from his mother’s arms by a system that regarded Aboriginal families as obstacles rather than sources of care.
Alec would later write about his life in his 2007 memoir, Alone in the Soaks. But he also did something else. He took his story to the high court.
When I first read the decision in Kruger v Commonwealth (1997) I was struck by how quiet the constitution was in the face of what had been done to him. Alec, along with other plaintiffs – Hilda Muir, Connie Cole, Peter Hansen, Kim Hill, George Ernest Bray, Janet Zita Wallace, Marjorie Foster and Rosie Napangardi McClary – challenged the laws that had authorised their removal.
Less than half First Nations staff feel culturally safe at Queensland’s Indigenous affairs departmentRead moreThey were not asking the court for sympathy. They were asking whether a constitution that called itself democratic could truly permit the destruction of family, culture and childhood.
They argued that the Aboriginals Ordinance 1918 (NT) law violated fundamental freedoms: equality before the law, freedom of movement, freedom of association and freedom of religion. They argued that forcibly removing children and erasing culture amounted to genocide. They argued, in essence, that there must be some constitutional limit to what the state could do to its most vulnerable people.
The high court found that the Australian constitution contained no implied right to equality, no general protection against racial discrimination and no constitutional safeguard for the vulnerable. Even where rights were written into the text, they were read narrowly.
The freedom of religion clause, for example, was interpreted in part as protecting only against the establishment of a state religion – not against the destruction of another. Aboriginal law, spirituality and connection to Country did not fit the constitution’s definition of belief.
Reading the judgment, I felt the weight of the constitutional silences. The court was not being evasive. It was being faithful to the document it was asked to interpret.
The constitution simply did not require the protection of Alec Kruger.
Whenever I think about the Kruger case, I imagine Alec standing before the court, carrying the weight of his life into a space that could not see him. And I think of his mother, Yrambul, waiting outside the compound gates all those years earlier.
For me, Kruger remains one of the most revealing cases in Australian legal history. Not because the court got it “wrong” on its own terms, but because it showed us exactly what the constitution was – and was not – built to do. The document that underpins Australian democracy offered no shelter to a child taken from his mother, no protection against racialised power, no recognition of Aboriginal law or humanity.
This silence was not accidental. It was foundational.
This is an edited extract from Finding Justice by Larissa Behrendt, published 3 November (UQP).