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University of Technology Sydney Law Research Series |
Last Updated: 2 June 2017
Stories of the Nation’s Continuing Past: Responsibility for
Historical Injuries in Australian Law and Alexis Wright’s
Carpentaria
Dr Honni van Rijswijk, Senior Lecturer, UTS Law
School
‘A nation chants but we know your story
already.’[1]
So begins
Alexis Wright’s novel
Carpentaria,[2] which was
awarded the Miles Franklin Award the day the Northern Territory Intervention by
the Federal government commenced on 21
June
2007.[3] Carpentaria provides a
deep condemnation of Australian contemporary law and politics, and, as this
article will demonstrate, an effective claim
for social justice based on a
critique of the dominant narratives that produce and support these laws and
politics. It challenges
the hierarchy of whose stories count in Australia, and
how those stories come to matter. The novel’s interrogation of key
narratives
in law, and the practices of representation used to tell them,
undermine versions of sovereignty, responsibility and subjectivity
that
privilege the ‘white
nation’,[4] offering a rich,
Australian jurisprudence.
The law and literature movement has developed
critical methods that provide an important ‘way in’ to question the
law’s
logics and assumptions regarding Indigenous rights. In particular,
the critical move that analyses law as a form of representation
offers modes of
analysis that are uniquely suited to social justice questions concerning
Indigenous rights—as outlined below,
questions relating to representation
have been a significant area of contestation in both legal and cultural
responses to Indigenous
rights, and also an important site for critical
intervention. The two central problematics to be examined here are sovereignty
and
responsibility. I will be tracing how the law has imagined Australian
sovereignties—both the sovereignty of the white state
and Indigenous
sovereignties—and how Carpentaria provides a critique not only of
the substance of these concepts of sovereignty, but also of the ways in which
they have been represented.
I will examine how sovereignty is central to
contemporary formulations of responsibility for historical injuries, the ways in
which
critical historiography has intervened in the law’s dealings with
the past through re-thinking sovereignty, particularly through
the concept of
redemption developed by Curthoys, Genovese and
Reilly,[5] and how this reading of
Carpentaria engages with and further develops the redemptive
move.
Following the introduction, this article is divided into five parts.
Part I explains the contribution a law and culture approach can
make to critical
methods, and why this approach offers a mode of inquiry that is uniquely suited
to social justice projects concerned
with Indigenous rights. It also connects
law and culture methods with the emergence of critical historiography, which has
been a
key mode of intervention in the law’s adjudication of Indigenous
rights, challenging narratives and concepts upon which the
law relies. Part II
outlines the current thinness of responsibility in legal and cultural domains,
and the ways in which Carpentaria addresses this problem thematically,
focusing particularly on the failure of the discourse of Reconciliation. Part
III examines the
way in which the law has imagined the state and Indigenous
sovereignty, and the effect this has on the law’s understanding
of the
state’s responsibility for past and current wrongs, as well the
law’s role in adjudicating this responsibility.
It provides a reading of
Carpentaria that focuses on its conceptualisation of sovereignty, and the
novel’s critique of the ways in which sovereignty is represented.
I argue
that Carpentaria demonstrates new means to answer important questions
about the relationship between sovereignty and responsibility, which in turn
speaks to the ongoing impact of historical suffering on contemporary legal,
social and cultural life. In this reading, Carpentaria is a critical text
that addresses the question of what different forms and discourses make
possible (and impossible) regarding the recognition of Indigenous
sovereignty
and laws, which is a question inherently connected to the recognition of harms
inflicted against Indigenous people, and
responsibility for those harms. The
novel marks the significance of Indigenous sovereignties to ongoing questions
about responsibility,
by representing what is denied by the Australian state, by
law and by contemporary social life. Part IV analyses the formulation
and
evolution of responsibility in key Stolen Generations cases. It focuses on the
limitations of the law’s imagination in
its role adjudicating historical
suffering in these cases, as well as the underlying narratives regarding the
state upon which these
limitations are based. It examines the implications of a
different conceptualisation of sovereignty for contemporary law’s
response
to historical injuries. Finally, Part V connects these readings of law and
literature with the concept of redemption, arguing
that Carpentaria
suggests that encounters with Indigenous sovereignties should be the next
step in the redemptive move.
Part I: The Methods of Justice
The two
dominant approaches in law and literature are to view law in literature
and law as literature,[6] and
both these techniques are used here. The first approach examines literature for
its thematic treatment of issues relating to
law and to social justice. Here,
the novel becomes a site for the critique and supplementation of the law’s
version of justice.
In the discussion of Carpentaria below, the novel is
shown to criticise legal and cultural conceptualisations of sovereignty and
responsibility—to represent
the failures of Reconciliation and legal
processes. The significance of this approach is eloquently described by Wai Chee
Dimock
in her seminal work on law and literature, Residues of Justice
(1996),[7] in which Dimock contrasts
law’s inadequate treatment of justice with literature’s account.
Dimock argues that for the
law:
... the search for justice ... is very much an exercise in abstraction, and
perhaps an exercise in reduction as well, stripping away
apparent differences to
reveal an underlying order, an order intelligible, in the long run, perhaps only
in quantitative terms.[8]
Dimock
argues literature supplements the law through its attention to the
“incommensurate” particularities excluded by
the
law,[9] and thereby contributes to a
more complete version of justice. Dimock looks to literature for ‘the
abiding presence—the
desolation as well as the consolation—of what
remains unredressed, unrecovered, noncorresponding’ in the
law.[10] The stakes of this
comparison lie with questions of social justice, as that which ‘remains
unredressed’ does so for reasons
that lie outside the question of formal
properties. Literature provides an alternate domain and language for justice,
one that offers
different histories and logics to that upon which the law
relies. It can thereby be a domain where that which has been excluded by
the
law—particularly unjust exclusions due to processes such as colonialism or
racism—can become the source of an alternative
or supplementary justice.
The literary text itself becomes a theory of justice, providing a supplement and
corrective to the legal
domain.
The second main approach examines law
as literature. This move means no longer seeing the legal text as
transparent, where the text is only a means of ‘delivery’
of an
already-existing law; rather, law is now seen as an end-effect of processes of
representation. This method thereby opens up
a new set of critical questions
about how the law, as representation, is produced, including the material or
historical conditions
and politics under which it is produced, and the
underlying assumptions upon which legal representations are based. One of the
effects
of this approach is to flatten or demystify law: similar to literary
representations, law is ‘just’ a text, and so it
can be pulled apart
and examined in the same way as any other text. The advantage of this approach
is to reveal what might otherwise
be unseen (or even disguised) when we reify
the legal text. In particular, this method can show the ways in which the law
relies
on underlying, unstated narratives and assumptions, and that it is
shored-up by cultural tropes. These stories and metaphors may
not be
justiciable, but they are nonetheless significant, and can be important points
of intervention in projects directed towards
social justice. One of the
effective strategies here is to draw attention to these narratives and
figures—to reveal their effects
on legal and social
outcomes.[11] This approach
potentially offers a more radical conceptualisation of justice compared to the
law in literature approach, because
it goes beyond thematic explorations to
examine more self-consciously the implicit claims made through the designation
of representation
as ‘law’ or ‘culture’, and it does not
take this separation for granted.
This scholarship “recognises the
literary as a constitutive dimension of
law”,[12] and here we can
begin to see the politics of representational practices. Imagination, for
example, is usually coded as being opposed
to reality, as well as to the
rational, and is usually seen as belonging to the cultural domain, not to the
law. By considering the
legal text to have imaginative elements, in addition to
its rational and logical properties, “imagination” becomes a
productive problematic—a concept whose examination reveals the assumptions
and entanglements regarding whose realities count
in the law. So not only is law
seen as an imaginative form in this method—reliant upon stories and
figurative language, which
can be elaborated, challenged and re-worked—but
we can also begin to examine the law’s implicit claims to a true access
to
reality, and the effects of these claims. This in turn opens up the possibility
that other representations might also have an
authoritative claim to represent
realities, which could impact on the law.
This is particularly significant
for projects of social justice involving Indigenous rights, as Indigenous laws
and claims have been
organised through a number of different categories of
representation (as fact, fiction and more rarely, as law), and the status of
these representations has had significant effects on legal outcomes. Indigenous
law tends not to be coded as law in Western legal
proceedings, which has meant
that courts have not had to meaningfully deal with the encounter of multiple
authorities or sovereignties.
Rather, Indigenous law becomes relevant through
its establishment of particular facts—for example, in proving
“culture”
in Mabo/Wik
proceedings.[13] This move does
profound violence, because it fails to acknowledge the authority of Indigenous
law
At the same time, it is important to note the differences between legal
and literary representations. The law is not the same as a
novel—each
representation is produced for different purposes, within very different
institutional frameworks. But what becomes
productive in this method is the
tracking of concepts across legal and literary/cultural domains—the ways
in which implicit
claims are made about reality and authority through their
assignation as law, fact or fiction, and the critical justifications for
pushing
on these processes of categorisation.
It is important for critical legal
scholars to examine representations by Indigenous scholars and creative writers
as part of re-conceptualising
legal frameworks, because these offer not only
thematic critiques of law and policy, but also critiques that go to the heart of
this
question of representation in Australian legal and cultural domains. This
is work towards an Indigenous jurisprudence which, as Christine
Black puts it,
is “interested in the great narratives that make up the theories of the
different realities of the peoples of
the
world”.[14] The problem is how
to intervene in the law’s existing logics and narratives, which do not
accept multiple realities. This problem
is partly one of
power[15]—and it is also one
of legal thinking, and the practices that have become part of legal (and
critical) thinking.
There have been developments in both law and critical
legal studies that have begun to put pressure on the status of representation,
which has particularly affected the conceptualisation of sovereignty in law.
What I am focusing on here, then, are the different
ways this approach has been
used to challenge the law’s treatment of Indigenous rights, and how we
might push further on representation
as a site of intervention in the
law’s adjudication of matters relating to Indigenous rights.
Australian
critical historiography has been a key site of engagement and intervention in
the pursuit of Indigenous rights and justice.
Critical historians have examined
the relationship between law, state and violence, and have used this research to
rewrite ‘Australia’s
foundational
myths’.[16] Historians have
challenged and re-worked the myths of the nation-state, including the mythology
of peaceful sovereignty, which they
have exposed as being grounded in violence
against Indigenous people—demonstrating the inherent connection between
the development
of Australian nationhood and
genocide.[17] This work has
contributed to public debates about responsibility, and it has also had legal
effect, since historical practices have
been central to the law’s role in
adjudicating rights and harms. In his exploration of the law’s relation to
history,
Reilly notes that not only has interpretation been central to
law’s treatment of past events, but also that the law has been
self-conscious about the significance of the role of interpretation in its
findings—in other words, the law has long abandoned
a positivist view of
history.[18] Reilly explains that
one of the central interventions of Mabo lay not only in its alternative
version of Australia’s colonial history, but in the court’s
recognition that alternative
histories could shape legal
norms.[19] Thus, ‘[t]his left
open the possibility that History could be a powerful force in shaping legal
judgment’.[20] Although
dealing with the past, the stakes of these historical practices lie very much in
the present—both with respect to
the law’s conceptualisation of
responsibility, and also with respect to the role of the public sphere in its
understanding
of a wider, social responsibility, where these interventions offer
‘a space through which to consider differentiated responses
to how the
Australian community accounts for and imagines Indigenous presence in our own
times’.[21]
Challenging
key narratives in law and the public sphere has been central to the project of
critical historiography, especially concerning
the centrality of violence to the
formation and continuation of the Australian nation-state. Genovese explains how
critical historiography
has involved engagement with stories of the
state’s origins, as well as its continuing relationship with Indigenous
groups:
‘stories that had normalised state intervention yet at the same
time ignored the subjectivity and experience of Indigenous
peoples
altogether.’[22] These methods
have demonstrated that practices of representation are central to questions of
justice—aesthetics are not ephiphenomenal
or ancillary to justice. The
stories the law tells about the continuing past are key to findings of
responsibility for harms that
continue into the present, and relate to a number
of questions central to the determination of responsibility: Does the law view
the past as something fixed, and inaccessible? What is its relationship to the
record of the past? How are gaps and silences in the
record interpreted? These
are legal and philosophical questions, but they are also aesthetic
questions.
As part of this historiography, there has been an emergence of a
critical practice that looks to cultural texts to provide alternatives
to the
status quo.[23] These
interdisciplinary engagements between law and culture indicate new directions
for the law and public sphere beyond the present
impasse in responsibility in
two ways: first, the difference between the conceptualization of responsibility
between cultural and
legal domains acts as a diagnostic tool to indicate the
gaps and inadequacies of responsibility as expressed under the law; and second,
formulations of responsibility derived from cultural texts can assist the law
and public sphere by providing new languages and frameworks
of
responsibility—alternative practices of representation that could lead to
improved outcomes of social justice. These engagements
provide new means to
answer important questions about the ongoing impact of historical suffering on
contemporary legal, social and
cultural life, of understanding the limitations
of existing legal forms to properly account for historical suffering, and
suggest
alternative ways to formulate responsibility.
Part II: Thin
Responsibility in Legal and Public Spheres
Responsibility for the
injuries suffered by members of the Stolen Generations has nominally been
addressed through a number of strategies
on the part of law and state, but these
gestures, such as the national apology in 2008, have not led to outcomes of
justice. The
harms of Australia’s policies of assimilation and absorption,
including the ways in which traumatic effects of these policies
are
intergenerational and impact on both individuals and communities, were described
in the 1996 National Inquiry, followed by the
Bringing Them Home
report.[24] The Inquiry made a
number of significant findings, including the finding that ‘the removal of
children of mixed descent constituted
a grave human rights abuse and that
removal, in certain cases, could be classified as genocide under the 1948 UN
Convention...’[25] It also
recognised that ‘the actions of the past resonate in the present and will
continue to do so in the future’ and
that ‘the alienation of
Indigenous societies today’ is a product of ‘the laws, policies and
practices which separated
Indigenous children from their
families’.[26] The report made
fifty-four recommendations, the most significant involving reparations, as well
as the implementation of specific
measures to prevent the state undertaking
similar policies in the future. The report could have led to a very different
outcome in
the public and legal formulation of responsibility for historical
harms—particularly if a reparations scheme had been
established.[27] Prime Minister John
Howard ascribed to a limited, liberal-individualistic view of responsibility
when he refused to apologise to
the Stolen Generations, on the basis that
‘Australians of this generation should not be required to accept guilt and
blame
for past actions and policies over which they had no
control’.[28] Under this view,
the time of responsibility lies firmly in the past, separate and isolated from
the contemporary moment. Further,
past responsibility adheres to the specific
acts of specific individuals, which can be parsed from the responsibility of the
collective.
The subsequent apology to Indigenous Australians made by Kevin Rudd
and his Labor government in 2008 appeared to move toward an acknowledgment
of
collective responsibility, as well as responsibility-in-the present, and to
incorporate elements of a restorative justice approach.
The potential of a
restorative justice approach is that it stresses the ‘civic duty of
society to atone for the injustices
of the
past’.[29] But this was not
followed through in practice, since the government has refused to support the
apology with a reparations scheme.[30]
The Federal Court denied claims for compensation in the Kruger v
Commonwealth[31] case,
and then in Williams v The
Minister[32] and
Cubillo[33]. South
Australia v
Lampard-Trevorrow,[34] where the
court dismissed the State’s appeal against the decision of Gray J in
Trevorrow v South Australia (No
5),[35] is the only successful
Stolen Generations case, while Tasmania has been the sole state to create a
compensation fund. The Stolen
Generations cases have challenged the courts to
interpret legal doctrines such as tort and equity so that they are capable of
adjudicating
historical harms arising out of past policies and
practices.[36] Hocking and
Stephenson have noted that, in contrast to countries such as Canada and New
Zealand, ‘Australian property, constitutional,
labour and tort law have
all failed to compensate and reparate Australia’s indigenous communities
and individuals, despite
the incremental ‘pockets’ of compensation
emerging in these mainstream areas of the
law’.[37] Further, Australia
lacks a Bill of Rights to grant protection to Indigenous people and the
constitution is at its most silent on
the issue of human rights and
race.[38] The re-thinking of legal
concepts involves the courts adopting new interpretive practices regarding the
treatment of evidence and
history, in order to ‘fit’ concepts to the
specific demands of adjudicating historical harms.
The impasse in
responsibility on behalf of the state and the common law is partly due to
inadequate and failed conceptualisations
of responsibility on behalf of
law-makers, the judiciary and the public sphere. The law’s concept of
responsibility has been
under-developed, unresponsive and inattentive to
historical and political realities. Critical historiographers have made
significant
interventions in the relationship between responsibility in law and
‘myths about the Australian
state’.[39] These critical
practices have worked to demonstrate the law’s complicity in Indigenous
suffering, through the law’s interpretation
of state actions as
exceptional or benign, (particularly in the Cubillo case, discussed
below), and through its silence.[40]
This work has involved re-interpreting historical and legal archives to
demonstrate that the development of Australian civil society,
and the suffering
experienced by Indigenous people, are mutually constitutive, of both the past
and the present.[41] This
relationship has been disguised in the law, as well as in the wider public
sphere, which has had the effect of distancing responsibility
for past violence
on the part of law, state and the public. This article makes a claim for the
role of literature as a site for theorising
the relationship between law and
history, as well as a place from which to challenge the law’s interpretive
and imaginative
habits.
Alexis Wright’s novel Carpentaria (2006)
is set on the shores of the Gulf of Carpentaria, in a small town that the
bureaucrats call ‘Masterton,’ and the
inhabitants,
‘Desperance.’ Desperance is a figure for the postcolonial nation but
also one that is significantly particular.
The region has a violent,
eviscerating history of colonisation. It lies ‘in the middle of a
warzone’,[42] and its
Indigenous inhabitants are exhausted by ‘Fighting, fighting all the time
for a bit of land and a little bit of
recognition’.[43] The town is
divided into a number of communities, dominated by the division between
‘Uptown,’ where the whites live,
and the periphery, where the
Indigenous people live. For the Pricklebush mob, this means living literally on
top of the town’s
garbage dump. The surroundings of Desperance are
polluted with the detritus of white settlement: its sea-reefs are covered in
‘thousands
of bits and pieces of chipped and broken
china—sugar-bears, yellow chickens, spotted dogs, and pink babies of lost
cargo’,[44] and there are
islands of floating debris so large and solid that they now support vegetation
and human life.
The Despair of Reconciliation
Wright has said
that her aim in her work is to represent ‘the living hell of the lives of
many Aboriginal people’.[45]
Carpentaria engages with (and challenges) the myths of Reconciliation by
depicting the material realities and marginalized, impoverished lives
of many
Indigenous people, while at the same time asserting a rich and hopeful
alternative to current conceptualisations of law and
nation. The novel offers a
very different reality of white-Indigenous relations from that purported to
exist according to the discourse
of Reconciliation, which is based on concepts
such as ‘meaningful
coexistence’.[46]
Carpentaria demonstrates Reconciliation to be empty of meaning: in truth,
there is no meaningful coexistence, with few social or economic relationships
between Indigenous groups and the white population of Uptown. The only
encounters that do occur are eviscerating—whites commit
acts of violence
and sexual predation on the Indigenous population, who are also exploited by the
nearby multinational mine. The
authority of the white nation is undermined and
satirised by its hypocrisy, violence and vacuity, depicted in the microcosm of
Uptown.
Here, the white community is based on ‘unnaturally
acclimatised’ rituals;[47] it
is dysfunctional, even comical. The mayor, Stan Bruiser, is ‘the epitome
of the self-made man’,[48] who
has made money ‘selling the necessities of life for a profit of three to
four hundred percent after
costs’.[49] He has been voted
the ‘citizen of the year ... for ten straight
years’,[50] despite evidence
of sustained cruelty, including the rape of Indigenous women, a fact that is
commonly known. Truthful, the town’s
policeman, spends his time
cultivating roses in the grounds of the police station, because ‘nobody
had use for a policeman
anymore’.[51] He is also
sexually predatory.
These problems are addressed on a number of fronts. The
Indigenous people are fighting for their rights using whatever means are
available
to them. There is a breakaway mob who live in car bodies and who have
invented a fictitious history and language to benefit from
Mabo-Wik-type
rights from Gurfurritt, the nearby multinational mining company that is
vampirising the region;[52] a group
of separatist traditionalists drive to the Northern Territory border in old
Holdens and Fords, led by Normal Phantom, the
‘rightful, traditional
owner’ of the land;[53] and
Will Phantom, an indigenous guerilla warrior is trying to sabotage Gurfurritt.
Mozzie employs rituals to ‘renew the strength
of the
country’[54] and to undermine
Gurfurrit. But the underlying violence is shown to be beyond individual
actors’ capacity to change. The solution
Wright offers to the pervasive
racism and exploitation operates through the Dreamtime
Narrative.[55] Ultimately, the
Indigenous community engages with the Dreamtime to ‘sing’ the
destruction/re-creation of Desperance,
a healing act that ends the environmental
destruction and in-fighting of the region.
Carpentaria offers white
readers an experience of disorientation and reversal that demonstrates the ethic
of ‘shame’ proposed by Ann
Genovese as part of the redemption
process. It is significant that redemption be distinguished from reconciliation,
which can suggest
a ‘private atonement for
guilt’,[56] and an emphasis on
intentional, individual acts, which disguise the collective nature of past
violence. Genovese favours ‘shame’
over ‘guilt,’ as
guilt is a concept bound up with liberal law, and is located in individual
responsibility for intentional
acts. The potential of shame is that it is about
identification: it acknowledges the other’s suffering without relying on
what
a person might have individually done or not done, and about a relationship
to a wider, collective burden of moral responsibility.
In its epic narration
of law and society through the Dreamtime Narrative, and the focalisation of
stories through Indigenous points
of view, Carpentaria posits indigenous
subjectivity as the normative, default subjectivity, thus disorienting the white
reader from their usual privileges
and entitlements. Further, the novel
defamiliarises whiteness, demonstrating the ways in which whiteness exists only
in relationship
to non-white others. Whiteness becomes an ‘object of
critique’ through the representation of racism and exclusion from
Indigenous points of view.[57]
Ravenscroft proposes that white readers approach Carpentaria in a way
that engages with the challenge of being immersed in a world formed through a
different foundational law and subjectivity
from that which they are used
to.[58] This experience of
estrangement on the part of white readers is potentially reforming—if
readers can take seriously the subversion
of expectations regarding their
position in the world.
Wright’s intervention into the question of
responsibility is addressed not only through the interrogation of acts of
injustice—by
representing the great gap between the rhetoric of
Reconciliation and the violent, impoverished realities of the Indigenous
community
in Desperance—but also through an interrogation of the
narratives, tropes and logics that underlie legal conceptualisations
of the
state and its role in subjecting/ignoring Indigenous communities. The following
Parts outline the role of narrative in the
law’s conceptualisation of
sovereignty and responsibility, and the ways in which Carpentaria
challenges these underlying stories of the white state and Indigenous
sovereignties.
Part V: Carpentaria’s Claims to
Justice
Radical, plural sovereignty
The novel’s
representations of Indigenous authority and law, based on principles specific to
the Waanyi region, produce an alternative
to the sovereignty of the white
nation. The opening pages describe the creation of the Gulf of Carpentaria,
producing beings including
fish, animals and people, and phenomena such as the
weather, light and darkness. The serpent is an authority that determines not
only such large-scale, metaphysical elements but also daily life and law:
The serpent’s covenant permeates everything, even the little black girls with hair combed back off their faces and bobby-pinned neatly for church listening quietly to the nation that claims to know everything except the exact date its world will end.[59]
The story of the Waanyi region serpent is the key organising narrative of the novel. The serpent’s covenant, which ‘permeates everything’,[60] instantiates the law between Indigenous people, spirit, the land and the waters. The narrative thematises the origin stories that are also part of the white nation’s law and culture—the myths that, as outlined above, appear in cases such as Mabo and reference Indigenous sovereignty only to limit it. Carpentaria turns these myths on their head: the violent history of colonisation is shown to be subject to another authority, relegating the law of the white state to the periphery. The river, created by the serpent, ‘spurns human endeavour’, and has been transformed from a live body of water during ‘the hectic heyday of colonial vigour’ to a ‘waterless port’.[61] Colonialism in Desperance has been based on a kind of knowing that has turned out to be false—the river has changed, perhaps knowingly, leaving the town without its water source. Although colonisation has damaged the region, ultimately its effects are swept away by a larger act of destruction/creation subject to a different and more powerful authority.
The novel’s end is an ambivalent apocalypse, as the particular town of Desperance is extinguished, reduced to ‘an extraordinary floating island of rubbish’,[62] but life, law and culture continue—the destruction is also ‘a journey of creation’.[63] The final sequence of the novel involves Will, the guerilla warrior, surviving on an island of debris, which floats in circular currents of the Gulf. The novel ends with a note of hope: ‘It was a mystery, but there was so much song wafting off the watery land, singing the country afresh ...’.[64] The hope of future justice is narrated through this song, not through the white state and its justice but the laws and creative process of the Waanyi. The western law has passed away in the region, leaving the Waanyi to adjudicate its future.
Narrating Indigenous Sovereignties
When they are recognised by the
common law, Indigenous sovereignties are firmly confined to the past. Indigenous
law is represented
as static, supported by a sovereignty that once existed, but
which has no authority now. In the Yorta Yorta case, the redundancy of
Indigenous sovereignties in the present is expressed as follows:
Upon the Crown acquiring sovereignty, the normative or law-making system
which then existed could not thereafter validly create new
rights, duties or
interests. Rights or interests in land created after sovereignty and which owed
their origin and continued existence
only to a normative system other
than that of the new sovereign power, would not and will not be given effect by
the legal order of the
new
sovereign.[65]
This
understanding of Indigenous sovereignty as finite, and as subject to the white
state, is central to understanding the exclusion
of Indigenous rights and
authority, and has arisen mainly through the regulation of native title, which
‘[i]n a variety of
ways ... refuses a plurality of sovereignty, law and
community’.[66] Stewart Motha
locates this refusal in
Mabo,[67] in which, he says,
‘a singular, unassailable (non-justiciable) sovereign ‘event’
is proposed as the foundation
of Australian law and
society’.[68] This
foundational moment was followed in subsequent native title cases, which
confirmed ‘that there can be only one normative
system that gives rise to
rights and
interests’.[69]
In
Mabo, the common law narrates the end of Indigenous sovereignty. As
Reilly argues, ‘contrary to the popular portrayal of Mabo as a
triumph of remembering, the judgment is in important respects a mechanism for
forgetting’.[70] This
forgetting occurs through the re-narration of the originary moment of
settlement, and produces a tacit (unsought-for) bargain
between the law and
Indigenous rights: the law’s recognition of native title comes at a high
price, the ‘exculpation’
of the law from responsibility for
dispossession, as well as the end to claims for Indigenous
sovereignty.[71] Further, implicit
within the system of ‘recognition’ of Indigenous sovereignty and law
is the idea that it is the Anglo-Australian
legal system that acts to organise
and select those aspects of the system that it wishes to
recognise.[72] Revealing the falsity
of this finite sovereign event has a number of radical possibilities: it
critiques a significant source of
disavowal in the common law, by showing that
there is continuity, rather than a break, between acts of colonial and
postcolonial
dispossession and violence. And it suggests that there are
multiple, Indigenous sovereignties currently in existence.
In Carpentaria, we receive a representation of exactly what the law has refused: Indigenous sovereignty as continuing, universal, and richly flourishing. It is the Australian state that is exceptional, contingent and finally, extinguished, reversing the logic that has been employed in Australian law regarding Indigenous sovereignty. Further, in contrast to representations of Indigenous law as static or finite (such as in Yorta Yorta, described above), the novel represents law as continuously arising through the serpent narratives, which have historical authority but which are also responsive to contemporary problems. The people ‘kept a library ... full of stories of the old country stored in their heads ... trading stories for other stories ... what to do, how to live like proper human beings’.[73] These ‘stories’ determine the law. Thus, the novel works against an understanding of Indigenous law and culture as being located firmly in the past, and as static. The stakes of Carpentaria’s law are located very much in the present, offering a critique of contemporary Western practices, which allow the decimation of the environment brought about by an ethic of exploitation. This world-view becomes part of the everyday—it is continually re-made, and is relevant to present, urgent questions of justice.
In the next section, I explore what is especially radical about
Carpentaria, in addition to its thematic explorations of
justice—the Waanyi laws’ understanding of legal and ethical
obligations
in Australia. I suggest that Carpentaria does more than offer
an alternative, imaginative place to explore possibilities and to supplement the
law’s version of justice.
Rather, it asserts the reality of continuing
Indigenous sovereignty, authority and law, challenging the categorisation and
placement
of law and sovereignty in contemporary Australia.
The Forms of
Recognition
Literary claims for social justice relating to Indigenous
rights have been pursued in Australia largely through the genres of life-writing
and autobiography.[74] More
recently, experimental forms have been employed by writers such as Kim Scott; in
both True Country (1993) and Benang (1999), Scott draws on
Dreamtime tropes to articulate Australian realities, opening up the question of
what kinds of form have the
authority to assert ‘the truth,’ and the
implications of this claim. Prior to Carpentaria, Wright’s
Plains of Promise (1997) addressed the theme of the Stolen Generations,
depicting the lives of three generations of Aboriginal women and the traumas
they suffer as a result of policies of removal and assimilation. The women try
to reunite on an old mission reserve in the Gulf Country,
their suffering
ambivalently resolved at the level of Dreaming.
In Carpentaria,
the despair of the community is present, but it is also connected to a radical
reconfiguration of authority and responsibility.
The story of Carpentaria
does not focus on the resolution of suffering and trauma but on
responsibility; it refuses the assimilation underlying policies from
child
removal to the Northern Territory Intervention, which implicitly blame the
Indigenous population for its suffering, provide
assimilation as the solution.
Instead, it points to an alternative source of authority and
self-determination.
Wright has explained why she chose to write
Carpentaria the way she did, referring to the impossibility of writing
truths using mainstream forms:
I did not want to write a historical novel even if Australia appears to be
the land of disappearing memory . . . I have had to deal
with history all of my
life and I have seen so much happen in the contemporary indigenous world because
of history, that all I wanted
was to extract my total being from the colonising
spider’s trap door. So, instead of picking my heart apart with all of the
things crammed into my mind about a history which drags every Aboriginal person
into the conquering grips of colonisation, I wanted
to stare at difference right
now, as it is happening, because I felt the urgency of its rule ticking in the
heartbeat of the Gulf.
The beat was alive. It was not a
relic.[75]
The problem, Wright
explains, is how to write of the present, and the continuing effects of the
past, without taking on the terms
of dominant law and culture. The novel works
to escape the ‘colonising spider’s trap door’—political,
legal
and historical discourses—by refusing to engage with the usual means
by which history and law have been represented. Carpentaria denies the
authority of the white state—not just in its explication of a different
law and justice, but also in the way it
tells this story. Its representational
forms are central to its arguments concerning sovereignty and justice.
Carpentaria is not an ‘historical novel’ because it takes a
step back from the framework of history; Wright knows that history has
been a
key site of dispute and often subjection for Indigenous people. The novel
disputes the authority of history, of the ‘reality’
claimed not only
by the coloniser’s version of events, but through the framework of
expression—the forms through which
the story is told. Telling the story of
the legal and political present, Carpentaria does not start with Western
law and frames of reference, but rather starts with an Indigenous genealogy and
interprets events in
the region using Indigenous law and ethics. These formal
engagements and reversals go to the heart of Carpentaria’s
intervention into questions of law and responsibility.
The novel challenges
the ways in which Indigenous law has tended to be interpreted as a form a myth,
or as a marker of ‘culture’,
rather than as a source of authority
and judgment. Wright has said that she uses literature ‘to try and create
a truer replica
of
reality’.[76] One of the key
interventions Carpentaria makes is to question the ways in which the
Dreamtime form has been interpreted within the western canon. This binary
between mainstream
forms and the Dreamtime associates the Dreamtime with the
irrational, the non-real, whereas dominant legal forms fall on the side
of the
rational and the real. In the context of the critical reception of the novel,
Ravenscroft notes there has been a tendency
to tame the text by referring to it
as a work of magic realism. The term magic realism itself is 'very much
the product of a certain white Western critical
strategy'[77] in which 'magic' and
'realism' are 'taken to be two distinct, even oppositional, representational
codes' that reference 'two distinct
worlds or
cultures'[78] – that of the
coloniser and the colonised subject respectively. Such moves ‘are surely
another way of saying ‘but
we know your story already ... because it is
our
own’.’[79]
Carpentaria’s
most radical project is its assertion not only of an alternative claim to
truth/reality, but a challenge to the modes in
which such truth claims are made.
Carpentaria offers, in addition to answers to questions of
justice—an alternative account of the ‘truth’—a method
of
examining the operation of genre in both legal and cultural texts,
undermining assumptions that these modes necessarily grant us
access to the
truth. This is a challenge to practices in which, as Ravenscroft says,
Indigenous reality is produced ‘as if
it were a version of the
colonisers’ own, only a lesser one: less rational, less logical ... mythic
and magical’—that
is, as possessing a less authoritative claim to
reality.[80] Carpentaria is
not merely asserting an alternative version of the present, but also making a
claim for authority to know that present, to assert
a ‘reality’ for
it.
Carpentaria reveals that the justice offered by white law is
limited, specific, and refers to a universal standard that is not universal. It
shows the nation’s sovereignty to be contextual, contingent, one version
that denies connections and multiplicities, and which
is underpinned by a
radical unknowing which, if admitted, would demand a very different kind of
justice from that which we have at
present.
Carpentaria is an
authoritative text. Wright claims her writing:
... follows the original pattern of the great ancient sagas that defined the
laws, customs and values of our culture. The oral tradition
that produced these
stories continued in the development of the epic stories of historical events,
and combining ancient and historical
stories, resounds equally as loudly in the
new stories of our times.[81]
It
makes a claim to represent the law, and to instantiate a continuing, Indigenous
sovereignty. Indigenous law also holds a different
relationship to
representation compared to Western law. Christine Black explains, through
Mowaljarlai, that Aboriginal cultures and
law are based in art and aesthetics,
so that “symbolism holds as much legal validity as mathematics does for
the laws of physics”.[82]
Wright produced Carpentaria in response to ‘the urgency of [the
law’s] rule ticking in the heartbeat of the Gulf’, a beat that is
‘alive
... not a relic.’ It contains examples of the exercise of
Indigenous law and it also demonstrates the underlying production
of, and
authority for, this exercise of law, through the Serpent’s Covenant.
Part IV: Failures of Imagination and ‘Institutional
Hallucinations’:[83] the
law’s relationship to historical suffering
Sovereignty is central
to the issue of responsibility for harms suffered by members of the Stolen
Generations—here, it is differently
inflected from land rights cases, and
concerns the ways in which the law conceptualises the authority of the white
state. There has
been significant criticism of the ways in which courts have
interpreted the operation of state power in relation to the Stolen Generations,
essentially distancing specific acts of state actors from the context of Stolen
Generations policy.[84] The
problematic of responsibility for past (and present) suffering raises important
questions about the location of the authority
that is empowered to determine
responsibility, both past and present, and the appropriate sites for
intervention. It also raises
questions about the nature and breadth of entities
denoted by ‘the state’; the role of ‘the people’ in
constituting
authority; and the role of Indigenous sovereignties.
‘Sovereignty’, in these different registers, has been imagined by
the law in ways that directly produce the forms of responsibility possible.
This Part examines the emergence and changing nature of responsibility in
key Stolen Generations cases. It examines the assumptions
of the law regarding
sovereignty and authority in
Cubillo[85] (following
Kruger[86]) and the role of
the failure of the legal imagination in conceptualising the state (and the
law’s relationship to that state).
It then turns to South Australia v
Lampard-Trevorrow,[87] where the
court dismissed the State’s appeal against the decision of Gray J in
Trevorrow v South Australia (No
5),[88] which awarded Bruce
Trevorrow damages against the government for his removal from his family as an
infant, making him the first member
of the Stolen Generations to successfully
claim.[89] Trevorrow and
Lampard-Trevorrow (hereafter ‘the Trevorrow Cases’) signify a
break in the common law’s seeming incapacity to adjudicate historical
suffering.[90]
The Limits
to Responsibility: Early cases regarding the Stolen
Generations[91]
In
Cubillo v The
Commonwealth,[92] the
applicants, Lorna Cubillo and Peter Gunner, claimed that, in their removal, the
Commonwealth, (through its agent, the Director
of Native Affairs, by virtue of
the doctrine of vicarious liability), committed the torts of negligence, false
imprisonment and breach
of statutory duty, and also breached its fiduciary
duties owed to the applicants. Lorna Cubillo was born in 1938 and at the age of
seven she was forcibly removed by the Aborigines Inland Mission and the Native
Affairs Branch to Retta Dixon Home in Darwin, where
she remained until she was
18 years old. The second plaintiff, Peter Gunner, was born in 1948 on a pastoral
station and was removed
when he was about seven years old to St Mary’s
Church of England Hostel in Alice Springs. He remained there until he was 16
years of age. The Federal Court of Australia decided against the plaintiffs on
the merits of the
case.[93]
O’Loughlin J found there was insufficient evidence of a policy or practice
of indiscriminate removal,[94] and
no genocidal intent in either the legislation or its implementation by the
Director of Native Affairs and
others.[95] The Full Court of the
Federal Court dismissed the
appeal,[96] and the plaintiffs were
denied leave to the High Court of
Australia.[97]
In Cubillo
(trial), O’Loughlin J found:
The evidence showed that there were people in the 1940s and 1950s who cared
for the Aboriginal people. Those people thought that they
were acting in the
best interests of the child. Subsequent events have shown that they were wrong.
However, it is possible that they
were acting pursuant to statutory powers or,
perhaps in these two claims, it would be more accurate to say that the
applicants have
not proved that they acted beyond their
powers.[98]
Significantly,
contemporary community standards were explicitly rejected as a source of
authority for this finding. Despite stating
that those who removed the children
would ‘stand condemned by today’s
standards,’[99] and that
‘subsequent events have shown that they were
wrong,’[100] the court held
these contemporary standards were not relevant to deciding liability. Citing
Kruger,[101] the court held
that:
... it would be erroneous ... to hold that a step taken in purported exercise
of a statutory discretionary power was taken unreasonably
... if the
unreasonableness appears only from a change in community
standards.[102]
Trish Luker
argues that this invocation of Kruger arose ‘in the place of the
purported evidentiary
void’[103]—that is, as
an authority to ground the law’s finding that the state was not
responsible in the absence of evidence. The
difficulty in establishing such
evidence was compounded by the presumption in favour of the state’s own
archive.[104] In arriving at this
decision, the court rejected evidence that there was social criticism of the
practice of child removal at the
time of the removal, instead preferring the
evidence of the state’s
archive.[105] The logic of the
findings concerning the absence of policy is also problematic. For example, van
Krieken is critical of the way in
which the court moved from the fact that there
was no policy to remove all children, and the lack of capacity to fully
implement
the policy, to the conclusion that there was no policy of removal:
‘the mere selective application of a policy does not render
its existence
logically impossible.’[106]
In both Cubillo and Kruger, these authoritative, grounding moments
were actually imaginative acts, forms of ‘institutional
hallucination.’[107] In
these moments, the courts were deciding the standards of responsibility that
they imagined to be appropriate to the time. In both
cases, the courts made
their decisions as a result of interpretative practices in which ‘the past
is remade in the
present’.[108]
In its
interpretation, the court did not critically examine the operation of policies
that determined the removals, an approach that
was supported by the
court’s underlying views of the state. Justice O’Loughlin stated
that the ‘beneficial interpretation
of the legislation must remain
paramount’, referring to a ‘school of thought prevailing at the
time’ that included
‘the belief that it was in the best interests of
part Aboriginal children to assimilate them into the European mainstream’,
and that those who removed Gunner and Cubillo were doing so ‘in the best
interests’ of the
children.[109] In making these
decisions, the law had a particular concept of the state in mind, its ‘own
mythologies concerning the role
and power of the
state,’[110] which
determined the construction of the state’s actions. The law’s ideas
about the state therefore governed the court’s
approach to a number of
aspects of the case, which ultimately led to the failure of the claims,
including: the archive of evidence
considered acceptable in determining
responsibility; the nature of acts which could be characterised as state acts;
how the state
is constituted; the construction of the policies as beneficial in
intent (if not execution), and the non-applicability of present
standards in the
evaluation of those policies and practices (whether and in what ways the state
is seen to be fixed in time, or continuous).
In Cubillo, the court
trusted the state’s own archive, and the standards of the time as
demonstrated by that archive—to the exclusion
of critical voices from that
time and from the present (which would be more likely to be heard if the law
included evidence beyond
the state’s archive, and also considered
present-moment standards in evaluating the state’s past actions). The
effect
was that the law failed to respond ‘to the silence at the heart of
the white nation,’[111] and
‘constituted a repetition rather than a resolution of
trauma’.[112]
Sovereignty is central to the question of how the law narrates the role of
the past in the present. The stories the law has told about
the past have turned
on particular ways of imagining authority for those past acts. We can see
similar logics regarding sovereignty
operating in the Stolen Generations cases
as were articulated in native title claims. Writing in the context of
Mabo, Motha’s reading of sovereignty makes sense of the lack of
responsibility taken for colonial violence. Motha describes the
ways in which
this violence becomes viewed as exceptional, and relegated to an isolated past:
‘Australian ‘postcolonial’ law and society relies
heavily on the possibility of a ‘finite’, containable,
colonial
sovereignty’.[113] Motha
explains that the logic of sovereign exceptionality functions in Mabo to
confine the authority for acts of violence and dispossession to an
‘abhorrent’ past, while animating the legitimacy
of a contemporary
sovereignty that is based on different, contemporary values, (such as universal
human rights, anti-discrimination
principles, and the citizenship rights of all
people).[114] The law shores up
its own, present-day authority at the same time that it distances itself from a
role in past acts of violence:
the consequences of these past actions are still
with us, but they are beyond the scope of the law.
We see a similar logic
operating in Kruger, where the court takes judicial notice of the
existence of a policy of child
removal,[115] which would be
condemned by present standards, but to which these standards do not apply,
because the state that acted according
to these policies is seen as finite,
containable and separate from the state of the present day. Under this view,
contemporary responsibility
does not apply to past harms: colonial sovereignty
is responsible for the violence and dispossession that allowed the settlement
and occupation of Australia, and a past, misguided state is responsible for acts
of child removal; but these entities and their responsibilities
belong firmly in
the past, separate from the postcolonial state and its more enlightened laws.
The story the law tells in both Mabo and Cubillo is that the
continuing harms experienced today were caused by distant ‘events’
that took place in different pasts, under
different sovereignties from what we
have now (and through this characterization, the common law disguises its own
complicity with
these acts of violence and dispossession).
A Shift in
the Law’s Imagination: the Trevorrow Cases
The recent decisions
in the Trevorrow cases signify the opening up of the common law to a new
conception of responsibility, in which the law drew on new ways of imagining
its
relationship to the state. The facts of the case were that on 25 December 1957,
13-month old Aboriginal infant Bruce Trevorrow
was taken to the Children’s
Hospital in Adelaide, suffering from a stomach complaint. Upon his discharge,
and without the knowledge
or consent of his parents, the Aborigines Protection
Board (APB) placed him with a foster family. For the following ten years, he
stayed with this family, during which time his mother unsuccessfully requested
his return. In 1967, he was returned to live with
her, however, within one year
he was placed in a boy’s home, where he periodically remained until he
turned 18. At trial, Gray
J awarded $525,000
damages.[116] Of this amount,
$75,000 was awarded as exemplary damages in respect of misfeasance in public
office and false imprisonment, the State
having acted ultra vires,
cognisant of the unlawfulness of Trevorrow’s removal from his
parents.
The Trevorrow Cases demonstrate that the law’s mythologies
regarding the state are open to challenge. In its decision, the court
demonstrated a reconceptualised relation of the common law to the state, in
contrast to the earlier cases. This meant that the courts
took a different
approach to key questions that shape responsibility, in contrast to
Cubillo. The law accepted a wider range of evidence, beyond the
state’s own archive, and interpreted that evidence contextually. The
law
did not take the beneficial intent of the state’s actors for granted in
the operation of past policies. In contrast to
Cubillo and Kruger,
the South Australian Supreme Court in Trevorrow found that standards of
evaluation in the present moment were relevant legally, in deciding the issue of
damages.[117]
The courts took
a more contextual reading of evidence, and accepted a wider range of evidence,
in deciding questions of liability.
In considering whether the harm caused to
Trevorrow was reasonably foreseeable, their Honours concluded that the
Aborigines Protection
Board knew of the risk of separating a mother and child,
as contemporaneous research indicated that this process may be detrimental
to a
child’s wellbeing. In making this finding, the court looked outside the
state archive, to evidence of general standards
of the time—here, the
Court relied on the evidence adduced at trial, based on medical opinion, the
oral evidence of welfare
officers and a substantial body of literature,
including publications available during the period of the plaintiff’s
removal.[118] The Court concluded
that a reasonable person would have examined the likelihood of such harm
occurring and would have removed Trevorrow
from his mother only if remaining in
her custody would have presented a greater
risk.[119] The APB’s failure
to make reasonable enquiries into the circumstances of the Trevorrow family and
the infant’s physical
state before placing him with foster parents, the
APB was found to be in breach of its duty of
care.[120] The court also took a
highly contextualised approach to the reading of evidence, especially concerning
the issue of parental consent,
where the Full Court agreed with the trial judge
and interpreted the continued requests of Trevorrow’s mother that her son
be returned as an indication that the requisite parental consent was
absent.[121] In doing so, it
relied on evidence concerning general practices concerning consent, as well as
evidence concerning Trevorrow’s
particular
case.[122] While the court in
Cubillo referred to similar general policies, its finding in relation to
Peter Gunner’s mother’s consent was based on the documentary
evidence alone. [123] The Court in
Lampard-Trevorrow took into account historical context when
interpreting the facts to hand. Based on an analysis of correspondence
concerning other
cases, the Court found that ‘the requirement to obtain
parental consent was not always
observed’.[124] It also
found that the record ‘contemplates a bluff being used to enable the APB
to keep the child in question under its
control’.[125] The court was
critical of the problematic role of consent in the practice of child removal
– problems that were intimated in
Cubillo, but which in
Lampard-Trevorrow are labelled as ‘a pretence of
power’.[126]
The court
noted, as courts had in earlier cases, including Kruger, (where the
observation had no legal effect), the following:
The existence of the policy of removing Aboriginal children from their
families and the detrimental long term effects of that policy
on both those
removed and the wider Aboriginal community, is now widely recognized in the
community, and was previously the subject
of judicial
recognition.[127]
In the
Trevorrow Cases, this observation concerning contemporary standards had legal
effect. Community standards became relevant in
the award for exemplary
damages.[128] These standards were
also relevant in The Full Court of the South Australian Supreme Court allowing
Bruce Trevorrow an extension
of time to bring his claim, where the court held
that ‘there is a definite public interest in persons like Bruce Trevorrow
being able to have their claims decided by a court’ and that ‘public
interest, in this context, is a question of
justice’.[129]
The
Trevorrow Cases signify a change in the courts’ practices of interpreting
historical evidence, as well as the ways in which
the court framed this evidence
in its conceptualisation of the legal categories. The courts took a different,
and critical approach
to the contemporary standards in place at the time of the
implementation of the policy, in contrast to earlier cases; and the courts
also
found that present-moment standards were relevant in evaluating certain aspects
of the case. The case introduces methods of
interpretation that open up the law
to a new relationship to responsibility and the historical record. In many ways,
Gray J’s
judgment in Trevorrow, and the appeal that followed it,
signify a ‘markedly different ... approach and outcome to what came before
it’.[130] At the same time,
commentators have pointed to the distinctive nature of the factual and legal
basis of the decision, including that
it was based on an ‘ideal
plaintiff’, and suggested that this may limit its
potential.[131] The cases’
potential also needs to be balanced against the weight of precedent, including
the law’s habit in past cases
of distancing itself from the role of
adjudicating historical wrongs of the
state.[132]
Re-thinking
sovereignty: Redemption
The change to practices of interpretation in the
Trevorrow Cases is significant, particularly as the cases challenge key myths
surrounding
the Australian
state.[133] Ann Genovese describes
this move as an articulation of
redemption,[134] a concept that
has been key to the critical historiography developed by Genovese, Ann Curthoys
and Alexander Reilly.[135] The
process of redemption requires, first, recognition by the public sphere of a
different role of the state in regards to past violence
and dispossession of
Indigenous Australians, from that which has previously been accepted; and
second, commitments by the public
to engagement, ‘reparative action and
acceptance of moral culpability ... on questions of accountability for the past
in the
present’.[136]
Critical historiography has challenged the idea that the public can be
separated from practices of the state; by re-examining the
way in which
sovereign power has operated, redemption offers ‘a re-identification that
the state is constituted by its
people’.[137] This reckoning
means the end of practices that distance responsibility for past acts (and
present effects) by quarantining these
acts to specific functions of ‘the
state’. In other words, redemption entails a radical reconfiguration of
the state,
responsibility and ‘the people’, and of what happens (and
has happened) in the name of the people. It means an acknowledgment
that the
suffering caused by colonial violence is close, not only in terms of time (the
past continuing in the present) but also
in terms of authority (that present
legal and social forms are not separated from this violence through structures
and institutions,
including the state, but are part of these structures, which
are continuous with the past). It also means replacing an idea about
responsibility that imputes any responsibility to individual actors tangentially
related to a discrete state entity that no longer
exists (which is the story
told in Cubillo; for which responsibility in the present is not
meaningful), with the idea of responsibilities generated by collective,
continuing
entities (which is an emerging story in Trevorrow; for which
responsibility in the present is meaningful).
The most radical implication of
this insight is that it makes available a new idea of sovereignty, which has the
potential to transform
responsibility. It implies that the public should see
what has taken place as having been done in their name, on their authority:
and
that ‘the state’ instantiates this political power, rather than
being separate from it. It disrupts ‘the legal
myth that people are
external to the desires and acts of the sovereign,’ and makes contemporary
values relevant to the evaluation
of past
injuries.[138] This also places
responsibility back on ‘the people’ and makes an implicit call for
action (replacing the passivity of
people with respect to the state, produced by
the view that contemporary standards are irrelevant to the evaluation of actions
by
the state). Significantly, redemption goes beyond the terms of justice and
responsibility offered by the law, and ‘suggests
a community
identification of what is wrong, or unjust, that breaks with the totality of
what is legally right or
permissible’.[139]
Carpentaria provides an implicit critique of the law’s
continuing difficulty in conceptualising responsibility, by questioning the
status
of categories of representation; challenging the nature of ‘the
state,’ of law, of the distinction between law/fiction;
and challenging
also the authority of these forms. Finally, it further develops the concept of
redemption, as, in representing a
continuous, Indigenous sovereignty, it
suggests that that the redemptive move should also include an encounter with
Indigenous sovereignties.
Part V: Redemptive Encounters and Indigenous
Sovereignties
The Trevorrow Cases mark a change in the common
law’s adjudication of claims relating to the Stolen
Generations—namely,
the court’s demonstration of a willingness to
examine evidence critically and contextually, as well as its critical
examination
of standards in operation at the time the policies were administered
(and willingness to decide questions of responsibility regarding
past acts of
the state). These practices of interpretation signify a break from previous
litigation in this area, and augur some
potential for the common law’s
role into the future, although there continue to be limitations in the
law’s conceptual
framework of responsibility that are likely to preclude
the common law playing a significant role in addressing historical harms.
Both
law and the public sphere have distanced themselves from taking responsibility
for past suffering by: first, locating the authority
and responsibility for
those acts that caused suffering in ‘the state’, narrowly conceived;
second, by strategies that
then distance both law and ‘the people’
from the state; and third, by ignoring or denying the presence of a continuing
Indigenous authority, comprised of a number of sovereignties. Carpentaria
suggests that the law needs to tell new stories about its relationship to
the past, and its relationship to the state. These new stories
require a
re-working of white and Indigenous sovereignties. This move involves an
acknowledgment that current forms of the white
state and its laws are both more
contingent than has been imagined in the past, and more continuous with that
past. Carpentaria provides this critique not through a logic of
supplementation, in which the white nation is qualified by an Indigenous version
of
truth, but rather by radically challenging the legitimacy of the stories
about the white state—the forms and narratives upon
which the nation is
based.
‘Indigenous sovereignty’ is meaningful through a number of
registers in Australia, including a platform for the recognition
of rights, a
mode for Indigenous people to express self-determination in daily life, and,
most radically, as a claim of authority,
deriving from the fact that Indigenous
groups ‘have never ceded their
land’.[140] For Larissa
Behrendt, ‘the notion of sovereignty goes to the heart of the
restructuring of the relationship between indigenous
and non-indigenous
Australia’.[141] As
described above, the move from Cubillo to the Trevorrow Cases
involved changes in the ways in which the state was imagined. One of the
important innovations of the Trevorrow cases was the introduction of new
practices of interpretation, and the introduction of new questions in the
evaluation of injuries—including
the judgment of past acts according to
contemporary standards, a broadening of the evidence accepted as part of the
historical record
beyond the state archive, and a willingness to interpret
individual acts in the context of the policies of the time.
Carpentaria suggests an encounter with Indigenous sovereignties and
laws is the next step in redemption. This would introduce new formulations
of
questions that were asked in Cubillo and the Trevorrow Cases: What does
Indigenous law say about the authority behind child removals, then and now? What
does Indigenous
law say about the requirement for reparations? What kind of
evidence does Indigenous law require to prove child removals and its
impact? How
are contemporary standards affected by Indigenous laws? It would be a radical
and fundamental move for Australian law
to not automatically subject Indigenous
law, but to encounter it. The treatment of historical injuries arising out of
the Stolen
Generations would fundamentally change, and give rise to
responsibility based on a ‘relational
jurisprudence’.[142] This is
the kind of encounter Wright has in mind through Carpentaria—Wright
has said that she hopes ‘the book is of one heartbeat. Not only for us,
but for everybody in Australia as we move towards
the future and try to
understand
better’.[143]
It does not
appear that in the present moment there is any space within the common law to
raise these questions, for an authentic
encounter between white and Indigenous
sovereignties to take place. This suggests that the next step in redemption
should be statutory—that
a reparations scheme should finally be
implemented, and that it should address questions of injury and sovereignty. The
common law
has been evaluated as ‘a poor forum for judging the big picture
of history’[144].
Bringing Them Home recommended that a reparations scheme be adopted to
deal with compensation arising from harms suffered by the Stolen
Generations.[145] In addition to
other noted benefits, the advantage of the reparations approach is that it could
redress the problematic myths and
narratives that are part of common law history
regarding the Stolen Generations cases. A legislative approach could include an
encounter
with Indigenous sovereignties and the implications of these encounters
to recognition of historical harms. This is history, and justice,
from a
present position of impossibility, but hopefully not an impossibility
that will extend into the future.
[1] Wright, Alexis. Carpentaria.
Artarmon, NSW: Giramondo, 2006,
1.
[2] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006. Alexis Wright is a member of
the Waanyi nation of the highlands of the southem Gulf of Carpentaria.
Her first
novel. Plains of Promise, was published by the University of Queensland
Press in 1997. She has published a non-fiction book. Grog War (Broome:
Magabala, 1997) and has edited an anthology Take Power, Like this Old Man
Here: An Anthology of Writings Celebrating Twenty Years of Land Rights in
Central Australia, (Alice Springs: Jukurrpa, 1998). Carpentaria has
won the Miles Franklin Literary Award 2007; the Australian Literature Society
Gold Medal 2007 (under the auspices of ASAL, the
Australian Association for the
Study of Australian Literature); the Queensland Premier’s Literary Awards
(Best Fiction Book)
2007; the Victorian Premier’s Literary Awards (Vance
Palmer Prize for Fiction) 2007; the Australian Book Industry Awards (ABIA)
(Australian Literary Fiction Book of the Year) 2007; it was short-listed for the
New South Wales Premier’s Literary Awards
(Christina Stead Prize for
Fiction) 2007; the Age Book of the Year Award (Fiction Prize) 2007; and the
Commonwealth Writers Prize
(South East Asia and South Pacific Region, Best Book)
2007 (AustLiI. http://www.austlil.edu.au. accessed 3 April
2012.
[3] Martin Renes,
‘Dreamtime Narrative and Postcolonisation: Alexis Wright’s
Carpentaria as an Antidote to the Discourse
of Intervention,’ The
Journal of the European Association of Studies on Australia vol 2, no. 1
(2011), 110. On 21 June 2007, the Howard government announced the National
Territory National Emergency Response to
address child abuse outlined by the
Little Children Are Sacred report. Key components included the seizure of
local community land leases by the Federal Government, the deployment of
additional
police, restrictions on access to alcohol in the community, removal
of customary law and cultural practice considerations from bail
applications,
and quarantining of welfare benefits. Despite a change to a Labor government in
2008, the Intervention has
continued.
[4] The term belongs to
Ghassan Hage: White Nation; Fantasies of White Supremacy in a Multicultural
Society, New York: Routledge
(2000).
[5] See Ann Curthoys, Ann
Genovese and Alexander Reilly, (2008) Rights and Redemption: History, Law and
Indigenous People, UNSW Press; Ann Genovese, ‘Metaphor of Redemption,
Myths of State: Historical Accountability in Luhrmann’s Australia
and Trevorrow v South Australia’ (2011) 20 Griffith Law
Review 67.
[6] Binder, Guyora,
and Robert Weisberg. Literary Criticisms of Law. Princeton, N.J.:
Princeton University Press, 2000. 5. Binder and Weisberg comprehensively
describe the development of the law and
literature movement, with a particular
emphasis on the intersection between law and cultural studies. See especially
“Introduction:
Law as Literature”,
3-27.
[7] Dimock, Wai-chee.
Residues of Justice: Literature, Law, Philosophy. Berkeley: University of
California Press, 1996.
[8] Ibid,
2.
[9] Ibid,
10.
[10] Ibid,
6.
[11] For examples of the
exploration of the role of narrative in law, and of the connections between law,
representation and justice with
respect to a range of social justice issues, see
the work of Peter Brooks, Peter Fitzpatrick, Peter Goodrich and Austin
Sarat.
[12] See Binder and
Weisberg, above note 5, 19.
[13]
See Povinelli Elizabeth (2002) The Cunning of Recognition: Indigenous
Alterities and the Making of Australian Multiculturalism Duke University
Press Durham.
[14] Christine
Black, ‘Maturing Australia through Australian Aboriginal Narrative
Law,’ The South Atlantic Quarterly, 110:2, (2011), 347-362,
348.
[15] Ibid,
350.
[16] Trish Luker,
‘Postcolonising’ Amnesia in the Discourse of Reconciliation: The
Void in the Law’s Response to the
Stolen Generations’ (2005) 22
Australian Feminist Law Journal 67,
74.
[17] Genovese above n 4,
74.
[18] Alexander Reilly,
‘How Mabo Helps Us Forget,’ Macquarie Law Journal 6 (2006)
25, 29.
[19] Ibid
38.
[20] Ibid
38
[21] Genovese above n 4,
68.
[22] Genovese above n 4,
74.
[23] See, for example
Roseanne Kennedy, ‘In an Era of Stalled Reconciliation: the uncanny
witness of Ray Lawrence’s Jindabyne’, Human Research
XV (3) (2009) and Ann Genovese, ‘Metaphor of Redemption, Myths of State:
Historical Accountability in Luhrmann’s Australia and Trevorrow
v South Australia’ (2011) 20 Griffith Law Review 67, n 4 above.
[24] Bringing Them Home:
Report of the National Inquiry into the Separation of Aboriginal
and
Torres Strait Islander Children From Their Families (Sydney:
HREOC, 1997) (‘Bringing Them
Home’).
[25] Ibid,
3.
[26]
Ibid.
[27] The change from a
Labor government to a more conservative Liberal government in 1996 signalled
that most of these recommendations
would not be implemented. The change back to
a Labor government in 2007 again raised hope of change, but the Labor
government’s
rhetoric of apology and reconciliation has not been backed by
a reparations scheme.
[28] John
Howard, ‘Practical Reconciliation’, in Michelle Grattan (ed),
Reconciliation: Essays on
Australian Reconciliation, Black
Inc., 90.
[29] Antonio Buti,
‘Reparations, Justice Theories and Stolen Generations’ [2008] UWALawRw 7; (2008-2009)
34 University of Western Australia Law Review 168,
181.
[30] Ibid
187.
[31] Kruger v
Commonwealth [1997] HCA 27; (1997) 190 CLR 1
(‘Kruger’).
[32]
Williams v The Minister (1999) NSWSC
8.
[33] Cubillo v
Commonwealth (2000) FCA 1084 (‘Cubillo Trial’).
Cubillo v The Commonwealth [No 2] [2001] FCA 887; 112 FCR 1
(‘Cubillo’).
[34]
South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331
(‘Lampard-Trevorrow’).
[35]
Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136
(‘Trevorrow’).
[36]
See Chris Cuneen and Julia Grix, ‘The Limitations of Litigation in Stolen
Generations Cases’ (Research Discussion Paper
No 15, Australian Institute
of Aboriginal and Torres Strait Islander Studies, 2004),
5.
[37] Barbara Ann Hocking and
Margaret Stephenson, ‘Why the Persistent Absence of a Foundational
Principle? Indigenous Australians,
Proprietary and Family Reparations’
‘in Federico Lenzerini (ed) Reparations for Indigenous Peoples
(2008) 477, 520.
[38] Ibid,
478.
[39] Ann Genovese,
‘Metaphor of Redemption, Myths of State: Historical Accountability in
Luhrmann’s Australia and Trevorrow v South Australia’
(2011) 20 Griffith Law Review 67, 74. There are a number of critical
historians and legal scholars working in this area, including Thalia Anthony,
Larissa Behrendt,
Tony Birch, Ann Curthoys, Ann Genovese, Ben Golder, Trish
Luker, Rosanne Kennedy, Ann McGrath, Stewart Motha, Peter Read, Alexander
Reilly
and Patrick Wolfe.
[40] Genovese,
above n 4, 85.
[41] Ibid
84.
[42] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
203.
[43] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
11.
[44] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
16.
[45] Alexis Wright,
‘Politics of Writing.’ Southerly 62.2 (2002):
13.
[46] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
8.
[47] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
57.
[48] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
35.
[49] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
34.
[50] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
34.
[51] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
71.
[52] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
52.
[53] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
52.
[54] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
150.
[55] The term belongs to
Frances Devlin-Glass, who uses it to denote Carpentaria’s use of
literary forms to engage with Western epistemologies and metaphysics through the
representation of Indigenous sovereignties
and law. See Frances Devlin-Glass,
‘A Politics of the Dreamtime: Destructive and Regenerative Rainbows in
Alexis Wright's Carpentaria,’ Australian Literary Studies
23.4 (2008).
[56] Genovese
above n 4, 72.
[57] Anne
Brewster, ‘Indigenous Sovereignty and the Crisis of Whiteness in Alexis
Wright’s Carpentaria’ []
86.
[58] Alison Ravenscroft,
"Dreaming of Others: Carpentaria and its Critics," Cultural Studies Review, Vol
16, No 2 (2010): 197.
[59]
Wright, Alexis. Carpentaria. Artarmon, NSW: Giramondo, 2006:
11.
[60] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
11.
[61] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
3.
[62] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
490.
[63] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
491.
[64] Wright,
Carpentaria, 519.
[65]
Yorta Yorta Aboriginal Community v The State of Victoria (2002) HCA 58
para 43 per Gleeson CJ, Gummow and Hayne JJ, emphasis in the
original.
[66]Stewart Motha,
‘The Failure of “Postcolonial” sovereignty in
Australia,’ (2005) 22 Australian Feminist Law Journal 107,
108.
[67] Mabo v Queensland
(No 2) (1992) 175 CLR 1
(‘Mabo’).
[68]
Motha, above n 65, 108.
[69]
Ibid.
[70] Reilly above n 17,
26.
[71]
Ibid.
[72] Ben Golder,
‘Law, History, Colonialism: An Orientalist Reading of Australian Native
Title Law’ [2004] DeakinLawRw 2; [2004] 9 (1) Deakin Law Review
41.
[73] Wright, Alexis.
Carpentaria. Artarmon, NSW: Giramondo, 2006:
246.
[74] See Brewster, Anne.
Aboriginal Women's Autobiography. Sydney: Oxford UP in association with
Sydney UP, 1996.
[75] Wright,
Alexis. ‘On Writing Carpentaria.’ Heat 13 (New Series
2007): 79-95, 90.
[76] Wright,
Alexis. ‘Politics of Writing.’ Southerly 62:2 (2002): 10-20,
13-14.
[77] Ravenscroft, above n
57, 195.
[78] Ibid, 196.
[79] Ibid,
195.
[80] Ravenscroft, above n
57, 195-7.
[81] Alexis Wright,
‘On Writing Carpentaria,’ Heat 13 (New Series 2007): 75-95,
80.
[82] Christine Black above n
13, 358.
[83] Trish Luker,
‘Postcolonising’ Amnesia in the Discourse of Reconciliation: The
Void in the Law’s Response to the
Stolen Generations’ (2005) 22
Australian Feminist Law Journal 67,
84.
[84] Ann Genovese,
‘Metaphor of redemption, myths of state: Historical accountability in
Luhrmann's Australia and Trevorrow v South Australia’ (2011) 20
Griffith Law Review 67;
Pam O’Connor, ‘History on Trial:
Cubillo and Gunner v The Commonwealth of Australia’ [2001] AltLawJl 7; (2001) 26
Alternative Law Journal 27, 30. See also Chris Cuneen and Julia Grix,
‘The Limitations of Litigation in Stolen Generations Cases’
(Research Discussion
Paper No 15, Australian Institute of Aboriginal and Torres
Strait Islander Studies, 2004); and Robert van Krieken ‘Is Assimilation
Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth’ [2001] SydLawRw 10; (2001) 23(2)
Sydney Law Review
239.
[85] Cubillo v The
Commonwealth [No 2] [2001] FCA 887; 112 FCR 1
(‘Cubillo’).
[86]
Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1
(‘Kruger’).
[87]
South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331
(‘Lampard-Trevorrow’).
[88]
Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136
(‘Trevorrow’).
[89]
The Full Court reversed the trial judge’s findings in two major respects:
first, it found there was no false imprisonment in
the circumstances (at [307])
and second, that no fiduciary duty was owed to Bruce Trevorrow (at
[335]-[342]).
[90] The Trevorrow
Cases are dealt with in detail in Honni van Rijswijk and Thalia Anthony,
‘Can Common Law Adjudicate Historical
Suffering? Evaluating South
Australia v Lampard-Trevorrow [2010]’Melbourne University Law
Review, forthcoming. The article considers the significance of the appeal
decision, by examining what distinguishes the case from past,
unsuccessful
claims, and its implications for future claimants. There is also consideration
of what the case means in terms of the
law’s acceptance of a different
kind of historical and evidential interpretation from previous cases,
particularly how this
affected interpretation of the issue of consent. The role
and interpretation of consent has broad ramifications for the law’s
potential to adjudicate responsibility for historical harms and, we argue, is
one of the problematic ‘myths’ that has
normalised state
intervention, and which also makes successful claiming
difficult.
[91] This discussion
focuses on the narrative of responsibility in Cubillo (following
Kruger) and the Trevorrow Cases; it does not consider Kruger in
detail, nor Williams v The Minister, Aboriginal Land Rights Act 1983 and
Anor [1999] NSWSC 843 (Williams Trial), or Williams v The Minister
Aboriginal Land Rights Act 1983 and New South Wales [2000] NSWCA 255
(Williams Appeal), which was decided on different questions.
[92] Cubillo v The
Commonwealth [No 2] [2001] FCA 887; 112 FCR 1 (‘Cubillo’). A number of
aspects favourable to the applicants were reversed on appeal, but all adverse
findings were affirmed: Cubillo v The Commonwealth [2001] FCA 1213; (2001) 112 FCR 455
(‘Cubillo
appeal’).
[93]
Cubillo (trial) [2000] FCA 1084; (2000) 103 FCR 1, 483 (O’Loughlin
J).
[94] Ibid 103-8;
358.
[95] Ibid
483.
[96] Ibid 148,
150.
[97] Transcript of
Proceedings, Cubillo v Commonwealth (High Court of Australia, Gleeson CJ,
3 May 2002).
[98] Cubillo
(trial) above n 92, 483.
[99]
Cubillo (trial) above n 92,
482.
[100] Cubillo
(trial) above n 92, 483.
[101]
In Cubillo, the Federal Court considered the same legislation as in
Kruger.
[102] Cubillo
and Gunner v The Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 96-98, quoting Brennan CJ
in Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, at 36-7 and Dawson J at
52. In Kruger, nine Aboriginal claimants argued the constitutional
invalidity of the Northern Territory’s Aboriginal Ordinance 1918,
which purportedly authorised the removal of Aboriginal and
‘half-caste’ children, and that this cause of action gave
rise to
damages for breach of express and implied constitutional rights. The High Court
rejected claims that the Ordinance was enacted for the purposes of
genocide, finding instead that it was ‘beneficial’ in intent (at
158-189 per Gummow CJ).
A majority did not consider whether the
Constitution would limit genocidal legislation, a question left open to
future litigation. The decision also left open the possibility for damages
regarding the misuse of powers under the Ordinance (at 36 per Gummow CJ),
the court emphasising here that such misuse must be judged by the standards of
the time, and not by contemporary
standards (at 36-7 per Gummow
CJ).
[103] Luker, above n 15,
84.
[104] Cubillo
(Trial), above n 92,
245-6.
[105] See Curthoys et al
(2008), above n 4,
134-166.
[106] Van Krieken
above n 83, 246.
[107] Luker,
above n 15, 84.
[108]
Ibid.
[109] Cubillo,
para [1560]. See also van Krieken, above n 83, and Genovese above n 4, on the
law’s unwillingness to examine the record behind
beneficial intent in
Kruger and
Cubillo.
[110] Genovese,
above n 4, 85.
[111] Trish
Luker, ‘Postcolonising’ Amnesia in the Discourse of Reconciliation:
The Void in the Law’s Response to the
Stolen Generations’ (2005) 22
Australian Feminist Law Journal 67,
67.
[112] Rosanne Kennedy,
‘An Australian Archive of Feelings’ (2011) 26:69 Australian
Feminist Studies 257,
334.
[113] Motha, above n 65,
109 (emphasis in
original).
[114] (1992) 175 CLR
1 at 41-2; Motha, above n 65,
110.
[115] Kruger,
40.
[116]
Lampard-Trevorrow, above n 33, [1239].
[117] These issues are dealt
with in detail in Honni van Rijswijk and Thalia Anthony, ‘Can Common Law
Adjudicate Historical Suffering?
Evaluating South Australia v
Lampard-Trevorrow [2010]’Melbourne University Law Review,
forthcoming.
[118] Ibid,
[406].
[119] Ibid,
[412].
[120] Ibid,
[413].
[121]
Lampard-Trevorrow, above n 33, [47].
[122]
Lampard-Trevorrow, above n 33,
[133].
[123] Cubillo Trial,
above n 92, 179.
[124]
Lampard-Trevorrow, above n 33,
[126].
[125]
Ibid.
[126] Ibid,
[133].
[127] Trevorrow,
above n 34, 239, referring to the judicial recognition in Kruger, above n
11, 40.
[128] Genovese, above n
14, 85.
[129]
Lampard-Trevorrow, above n 33,
[461].
[130] Antonio Buti,
‘The Stolen Generations Litigation Revisited’ [2008] MelbULawRw 13; (2008) 32 Melbourne
University Law Review 382,
382.
[131] Ibid,
420.
[132] See Honni van
Rijswijk and Thalia Anthony, ‘Can Common Law Adjudicate Historical
Suffering? Evaluating South Australia v Lampard-Trevorrow
[2010]’Melbourne University Law Review, forthcoming. We argue that
the Trevorrow Cases both open doors for claimants, based on their broad reading
of the legislation and
the notion of consent, and close them, given the
treatment of a specific factual-legal framework, and the unwillingness of the
court
to find false imprisonment or a breach of fiduciary duty arising from the
facts.
[133] However, the cases
perpetuate a problematic myth regarding parental consent—although the
Trevorrow Cases challenge the operation
of consent in practice, demonstrating
that it was frequently quite meaningless, and that the documentary record should
not necessarily
be trusted concerning consent, the framework of liability still
relies on consent, with its attendant assumptions regarding agency
and good/bad
parenting. The presence of such myths is a key reason why the common law may
continue to be a problematic site for the
determination of responsibility for
historical harms—see These issues are dealt with in detail in Honni van
Rijswijk and Thalia
Anthony, ‘Can Common Law Adjudicate Historical
Suffering? Evaluating South Australia v Lampard-Trevorrow
[2010]’Melbourne University Law Review,
forthcoming.
[134] Ann
Genovese, ‘Metaphor of Redemption, Myths of State: Historical
Accountability in Luhrmann’s Australia and Trevorrow v South
Australia’ (2011) 20 Griffith Law Review
67.
[135] Genovese, above n 4,
72.
[136]
Ibid.
[137] Genovese, above n
4, 71.
[138] Genovese, above n
4, 73.
[139] Ibid,
73.
[140] Behrendt, Larissa.
Achieving Social Justice: Indigenous Rights and Australia's Future.
Annandale, NSW: Federation, 2003,
95.
[141] Ibid,
96.
[142] Christine Black,
‘A Timely Jurisprudence for a Changing World,’ Int J Semiot L
(2009) 22:197-208, 202.
[143]
Interview with Kerry O'Brien. ABC Television. 21 June 2007. Hecate 33.1
(2007):
215-20, 218.
[144]
See Pam O’Connor, ‘History on Trial: Cubillo and Gunner v The
Commonwealth of Australia’ [2001] AltLawJl 7; (2001) 26 Alternative Law Journal
27, 30. See also Chris Cuneen and Julia Grix, ‘The Limitations of
Litigation in Stolen Generations Cases’ (Research Discussion
Paper No 15,
Australian Institute of Aboriginal and Torres Strait Islander Studies, 2004);
and van Krieken, above n
83.
[145] See also Andrea
Durbach, ‘Repairing the Damage: Achieving Reparations for the Stolen
Generations’ (2002) 27 Alternative Law Journal 262.
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