Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach

Abstract

Transitional justice has become the dominant international framework for redressing mass harm. To date, however, transitional justice has not adequately accounted for past colonial harms and their ongoing effects. How to confront and redress structural harm has been beyond the purview of its framework. Taking ongoing historical and structural harms against indigenous peoples in Australia as a reference point, we draw on the insights of settler colonial theory to propose a new justice model for transitional justice.

Race, reconciliation, and justice in Australia: from denial to acknowledgment

“…Traditionally, transitional justice has been conceived of as involving a moment of rupture in a society (see Balint, Evans and McMillan [2014]). Transitional justice is 'intimately tied with particular conceptions of democracy' (Ní Aoláin and Campbell 2005, 173).…”

“…The Australian story is sufficiently different to require its own conceptualizations. However, the application of transitional justice to the relationship between the Australian state and Indigenous Australians is a new field of scholarship, emerging only very recently (Balint, Evans and McMillan [2014]; Henry [2015]). We seek to build upon this literature by reiterating the importance of black voices in building a transitional justice framework for Australia, and the importance of race in conversations of harm and healing.…”

“…While both the Bringing Them Home report and the apology to the Stolen Generations can be understood as moments of transitional justice (see Henry [2015]; Balint, Evans and McMillan [2014]) and indeed as moments of acknowledgment of harm, these moments have been piecemeal and have not been undertaken as part of a transitional justice framework. They have not definitively named the violence as genocide.…”

Stemming the Tide of Aboriginal Incarceration

“…63 This, it has been argued, has resulted in colonial harms as well as complex structural injustice. 64 This perspective could also inform our understanding of why the prison population in Western Australia is so high. Using this lens, the increase in bail refusals, increases in public order offences, such as move on orders and prohibited behaviour orders, as well as increases in mandatory and presumptive sentencing, can be seen as the enactment of settler colonialist dominance.…”

Maree's Backyard: Intercultural Collaborations for Indigenous Sovereignty in Melbourne

“…We deploy the term ‘restorative justice’ as a frame that focuses on education and the goal of further understanding between all parties and are following Balint et al , who seek to rethink notions of ‘justice’ in ways that more adequately address historical and ongoing structural harms against Indigenous people in Australia. While this may be a departure from the way it is used in the fields of socio‐legal studies or criminology, we do believe that the phrase ‘restorative justice’ amplifies our argument.…”