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That There Is a Nexus Between Ambiguous Race-Based Judicial Determinations and Community Xenophobia

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The nexus between judicial bias against Indigenous Australians and community xenophobia by Stephen Hagan BA, MBA Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy of the University of Southern Queensland May 2016 ABSTRACT This dissertation is a scholarly reflection of my journey as an Aboriginal man who fought unsuccessfully with judges at every tier in Australia’s domestic courts to have a racist public sign displaying the N-word removed at a premier sports venue. Perplexed and in need of answers on the reasons why learned judicial officers in these enlightened times would not be of same thought on the need to eradicate from public space a relic of a racist past, I undertook further research. It was from these investigations on the effects of judicial encounters of other Indigenous Australians in courts of law around the nation that I learnt of the consistency of our shared experiences of unabashed bigotry and bias from magistrates and judges immersed in white privilege. My research confirmed that once inside the demure surrounds of a courtroom setting immersed with cultural symbols of indifference, many Indigenous people on trial on criminal matters, irrespective of the triviality of their transgression, face the indignity of custodial sentencing. Even when judicial representatives strive to apply the law – equality for all – they will inadvertently be applying Eurocentric beliefs and values. This Anglo Celtic exemplar on societal codes of conduct from which today’s judicial officers were nurtured and influenced by is the principal explanation to why Indigenous youth, women and men are incarcerated at appallingly disproportionate rates to that of their mainstream counterparts. In finding no evidence to the contrary of First Nations People having a predisposition for criminal activity in life today or an affliction from birth, I conclude the answer to my vexed question rests entirely in the inherent proclivity of judges in assuming an unwavering cultural bias when ruling on race-based matters before them. It is therefore the proposition of this dissertation that judicial officers are no different from any other career professional whose outlook on life is shaped by community socialisation practices experienced in their lifetime. Over time Whiteness – never having to consider your own racial identity – becomes unexceptional as it morphs into a community norm and confirms my hypothesis: That there is a nexus between ambiguous race-based judicial determinations and community xenophobia. i CERTIFICATION OF THESIS I certify that the ideas, experimental work, results, analyses, software and conclusions reported in this thesis are entirely my own effort, except where otherwise acknowledged. I also certify that the work is original and has not been previously submitted for any other award, except where otherwise acknowledged. _____________________ ___________ Signature of Student Date ENDORSEMENT _____________________ ___________ _____________________ ___________ Signature of Supervisor/s Date ii In memory of my parents Jean Hagan 1937 – 2000 and Jim Hagan 1932 – 2016 iii ACKNOWLEDGEMENTS This research would not have been possible without the support of my legal team headed by lawyer Peter Black and senior counsel Ernst Willheim. Their unwavering support, on a pro-bono basis, throughout my decade-long battle to remove the N-word from a public sign in my hometown of Toowoomba was crucial. I also wish to acknowledge the valued advice from my PhD mentors: supervisor Dr Anna Hayes and principal supervisor Dr Libby Connors. In particular I pay tribute to Dr Hayes for her steadfast, honest and challenging assessment of drafts of my dissertation and Dr Connors on her critical oversight of academic rigour along with warmth of support, encouragement and generosity of time over the five years of my research journey. Most importantly, I thank my family who have had to put up with me for the initial 10 years of my legal campaign – that proved the inspiration for this dissertation – and then the five subsequent years it took me to research and validate my hypothesis. In particular I wish to offer special praise and gratitude to my wife, Rhonda, and our children Stephen Jnr and Jayde. Without Rhonda’s endorsement I would not have fought my David and Goliath legal battle against the might of civic leaders in my hometown, and indeed the rest of the nation. Rhonda remained stoic in her support of me when my back was up against the wall with sinister attacks from all sections of society to my public campaign. My son Stephen Jnr and daughter Jayde, who were primary school children when my campaign began, never complained of missing out on spending quality time with me to competing legal interests. I also acknowledge my parents Jim and Jean and my siblings Pam, Jimmo, Susan and Lawrence and their children for believing in my audacious, yet precarious, journey when many of their friends and associates were demonising me for bringing the race- based case to the forefront of public debate in their conservative city. Sadly my mother passed on during my legal campaign and later my father during the final edits of my PhD and as such I dedicate this dissertation to them. iv Notation Indigenous referencing Indigenous: a term readily interchangeable with the words Aboriginal; Aboriginal and Torres Strait Islander; First Nations People; and Our Mob. Yumba: an Aboriginal fringe camp/humpy located on the outskirts of town, usually out-of-sight-out-of-mind. Terms used: Whiteness theory: a process of making white culture and political assumptions and privileges visible so that whites do not assume that their own position is neutral or normal. Nexus: a connection or series of connections linking two or more things. Racial bias: when personal or group bias against someone occurs due to his or her race. Normativity: behaviour based on what is considered to be the normal or correct way of doing something. Racialize: an act of imbuing a person with a consciousness of race distinctions or of giving a racial character to something or making it serve racist ends. Xenophobia: a strong antipathy or aversion to strangers or foreigners of a different race, religion and/or language. Bigotry: a complete intolerance of any creed, belief, or opinion that differs from one’s own. Colonisation: ongoing process of control by which a central system of power dominates the surrounding land and its people. Veiled whiteness: Aboriginal people of fair complexion, notably with pronounced European appearance, suppressing their racial origin for privileges afforded them by being viewed and identified as white. v List of Acronyms and Abbreviations ACC – Aboriginal Coordinating Council ADC – Aboriginal Development Commission AFL – Australian Football League ALO – Aboriginal Liaison Officer ALS – Aboriginal Legal Service ATSIC – Aboriginal and Torres Strait Islander Commission CDEP – Community Development Employment Program CEC – Community Education Counsellor CIB – Criminal Investigation Branch CJC – Criminal Justice Commission DAA – Department of Aboriginal Affairs DEET – Department of Employment, Education and Training DFA – Department of Foreign Affairs DPP – Director of Public Prosecutions Go8 – Group of Eight universities HREOC – Human Rights and Equal Opportunity Commission KKK – Ku Klux Klan MMG – Maguni Malu Kes PM&C – Prime Minister and Cabinet RDA – Racial Discrimination Act RSL – Returned Services League STF – State Tripartite Forum TSGT – Toowoomba Sports Ground Trust TSI – Torres Strait Islander UN – United Nations UNCERD – United Nations Committee for the Elimination of Racial Discrimination USQ – University of Southern Queensland vi Table of cases and inquests Cubillo and Gunner v The Commonwealth of Australia [2000] 174 ALR 97 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 (10 November 2000) Hagan v Trustees of the Toowoomba Sports Ground Trust FCA [2001] FCA 123 (23 February 2001) Hagan v Trustees of the Toowoomba Sports Ground Trust FCA [2002] HCATrans 92 (18 March 2002) Hagan v Australia, UN Doc CERD/C/62/D/26/2002, Communication no 26/2002, IHRL 1799 (20 March 2003) Kartinyeri v Commonwealth (1 April 1998), [1998] HCA 22 Kruger v The Commonwealth of Australia [1997] 190 CLR 1 Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58, 96 R. v. Dundalli [1854] NSWSupCMB 9 R. v. Kilmeister (No. 2) [1838] NSWSupC 110 R. v. Kirby and Thompson [1820] NSWKR 11; [1820] NSWSupC 11 Stephen Hagan v. Australia, Communication No. 26/2002, U.N. Doc. CERD/C/62/D/26/2002 (March 2003) Wik Peoples and Thayorre People v Queensland (1996) 141 ALR 129 vii Table of Contents Title Page Abstract i Certification of Thesis ii Dedication of Thesis iii Acknowledgements iv Notation v List of Acronyms and Abbreviations vi Table of cases and inquests vii Table of Contents viii Chapter 1 Introduction 1 1.1 Background 1 1.2 Rationale for the topic 2 1.3 Key issues and questions 6 1.4 Research methodology 7 1.4.1 The N-word and familial nurturing processes 8 1.4.2 Race-based determination as the ‘incarcerated subject’ 9 1.4.3 Critiquing the N-word litigation 10 1.4.4 Race-based judicial bias and community xenophobia 10 1.5 Qualitative Research Methods 11 1.5.1 Participant Observation 13 1.5.1.1 Pioneers of Participant Observation 14 1.5.2 Judicial bias precedent 16 1.5.3 USQ Human Research Ethics Committee’s standards 18 1.6 Whiteness Theory 18 1.7 Identification
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