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EDITORIAL: LAW, RACE AND WHITENESS
TRISH LUKER & JENNIFER NIELSEN
We acknowledge the sovereignty of peoples’ position in relation to their the many Indigenous Nations of society’s colonial past (see Moreton- Australia, and pay our respects to Robinson 2004a: viii). their ancestors, Elders and peoples— of the past, present and future. By contrast, in Australia, Irene Watson
and Aileen Moreton-Robinson have led The contributions to this special issue of the field in interrogating and the ACRAWSA e-journal critically deconstructing the function of whiteness interrogate the interface of Anglo- in Anglo-Australian law and its disavowal Australian law and legal systems, race of Indigenous sovereignty. Their and whiteness. They seek to expose the scholarship is positioned within racialisation of legal discourse and call Indigenous epistemology and ontology, into question the normative white and draws on critical whiteness theory to subject of Anglo-Australian law. Anglo- expose the hegemony of whiteness Australian law obscures the hegemonic within Anglo-Australian legal discursive function of whiteness through its liberal and institutional practices. Watson has claims to neutrality, objectivity and engaged in a sustained critique of the rationality, and the promotion of formal, contemporary colonialism of white rather than substantive, equality. As in sovereignty, a ‘sovereignty of violence, other discursive domains, whiteness not of law that is always known’ (2002: operates within law as the invisible norm 257), which has introduced Australian by which an originary and unquestioned legal scholarship to new conversations legitimacy is claimed. involving decolonisation, a process of
dissolving and thinking outside law’s Groundbreaking work drawing on imposed regimes of white colonial critical whiteness studies has highlighted thought (Watson 1998: 31). Moreton- law’s agency in establishing and Robinson’s work also offers a compelling maintaining racialised power, premised paradigm for analyses of legal on the ‘normality’ of whiteness and the discourse, in that it deconstructs the legitimacy of its claim to privilege. In the ‘possessive logic of patriarchial white United States, legal theorists such as sovereignty’, which she has, for instance, Cheryl A Harris, Kimberlé Crenshaw, deployed in relation to the reception of Richard Delgado, Mari Matsuda and claims for native title recognition others have developed the insights of (2004b). critical race theory to articulate a critique of whiteness and to deconstruct Despite these significant foundations for the liberal notions of race and equality bringing critical whiteness theory to the underpinning civil rights discourse important site of law, there has been (Crenshaw et al, 1995: xiv; and see only limited attention in Australia to the Delgado & Stefancic (eds) 1997: Part IV). field. Indeed, this is the first issue of an However, this work largely fails to Australian journal devoted to the theme. acknowledge or address the concerns Moreton-Robinson has indentified the of Indigenous peoples within ‘Western’ lack of attention given by Australian societies or the complexity of ‘minority’
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LUKER & NIELSEN: EDITORIAL
legal scholars to issues related to race as ‘scientific knowledge’ as the basis for indicative of our ‘agency’ in the demonstrable proof. Using a site of ‘reproduction and maintenance of testimonial evidence from the landmark racial hierarchies’ (Moreton-Robinson action taken by members of the Stolen 2007: 85). That is, our lack of Generations, Luker argues that despite engagement with the concerns and evidence presented by Lorna Cubillo epistemologies of the raced ‘other’ is which revealed the systematic practice not merely a silence, but is also silenc ing , of Indigenous child removal, this was oppressive and self-serving. In editing this rejected by the court because it did not special issue of the ACRAWSA e-journal , meet the legal standard for proof. At we hope to have interrupted this silence the same time, evidence founded in and encouraged further scholarship in narrative forms of knowledge, which the field of critical whiteness theory and revealed the function of whiteness in law. supporting dominant paradigms of historical truth, were discredited. Naomi Fisher opens the issue with a piece entitled ‘Out of Context: The In ‘Pinned like a Butterfly: Whiteness and Liberalisation and Appropriation of Racial Hatred Laws’, Karen O’Connell “Customary” Law as Assimilatory analyses the Federal Magistrates Court’s Practice’. Writing up ‘strong’ from her decision in McLeod v Power (2003), a position as an ‘Aboriginal woman case involving a white prison officer’s learning and journeying back to her complaint of racial vilification against an culture, place and identity’ (p 1), Fisher Aboriginal woman. Despite a finding argues that common law’s claim to that vindicates the Aboriginal woman, have ‘recognised’ Aboriginal Law is O’Connell exposes the hypervisibility erroneous because the ‘dialogue’ accorded to ‘blackness’ in the decision, between Aboriginal Law and common which sits in stark contrast to the failure law is one-sided. She points out that any to reveal the significance of whiteness. claim by common law to ‘recognise’ She argues that an approach to law Aboriginal Law is false because the which foregrounds embodiment in racial common law refuses to engage in a hatred cases can render whiteness dialogue with the knowledges and Law visible and that by exposing whiteness to founded in Aboriginal context and examination, a more coherent racial ontology. The effect of the common identity for whites and a richer and fairer law’s liberal discourse (monologue) is to system of law may emerge. grant legitimacy and power only to itself, and thus reiterate white hegemony Greta Bird reverses the conventional through the assimilation and focus of legal analysis in her contribution appropriation of Aboriginal peoples and ‘The White Subject as the Liberal Law, enmeshing them at sites of Subject’ by engaging—through personal bureaucratic and legislative intervention storytelling—in an analysis of her own and control. position as the full citizen, the ‘white liberal subject’. Bird identifies a The hegemony of liberalism in legal significant moment in her understanding discourse is further deconstructed in the of whiteness that enabled her to reflect contributions that follow. In ‘Witnessing on her own subjectivity as a white legal Whiteness: Law and Narrative academic and to identify her Knowledge’, Trish Luker critiques the experience of white race privilege. In privileging within legal positivism of an the desire to develop an ethics of epistemological framework grounded in alterity, Bird explores and acknowledges
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the construction of her white subjectivity In addition to these formal scholarly living in a raced nation, to set her own works, we are very pleased to be able to ethical goals towards resisting and include creative works which speak to challenging her own whiteness. the theme of this issue (a rare event in legal scholarship). The first, by Edwina Finex Ndhlovu’s contribution, ‘A Critical Howell, offers three short pieces of Discourse Analysis of the Language creative writing under the title, ‘It’s Question in Australia's Immigration Captain Cook all Over Again …’. Policies: 1901–1957’, draws insights from Howell’s work is followed by two poems the conceptual framework of critical by Benna Coyne. Taking advantage of discourse analysis to interrogate the use the ACRAWSA e-journal ’s digital and abuse of language testing as a tool environment, Benna performs both for racial and political exclusion in poems. The first, ‘Suffering from Australia from 1901 to 1957. Marking an Sovereignty’ is performed as a voice important period in the development of piece, while in the second, Benna racialisation in Australian legal discourse, collaborates with composer Giordano to the construction of ‘undesirable’ present ‘The Sound of Whiteness’. immigrant subjects reminds us of the unstable nature of racialised categories The issue also includes a rejoinder from of otherness. This remains an abiding Denise Cuthbert to the piece by Damien issue as the language question Riggs published in the last issue of the continues to feature prominently in journal in which Riggs criticised public debates on Australia’s citizenship Cuthbert’s foregrounding of the and immigration laws. experience of white adoptive mothers in a research project examining the Jennifer Nielsen’s contribution, adoption/fostering of Indigenous ‘Whiteness and Anti-Discrimination children. Cuthbert responds to Riggs by Law—It’s in the Design’, analyses the providing an account of the racialised effect of law’s liberal notion of development of her ethical research formal equality. Using the Anti- parameters in which she considered her Discrimination Act 1977 (NSW) as a case own subjective position as a white study, she argues that despite the researcher and the politics of assertion of ‘race-neutrality’ promoted representation. Cuthbert affirms the by formal equality, the Act operates to importance in politically-engaged produce a selective colour-blindness research of reporting and analysing all that stabilises and reproduces the voices, Indigenous and non-Indigenous. dominance of white privilege. Nielsen then extends her analysis to the Finally, there are two book reviews: contemporary discourse of substantive Damien Riggs reviews Derek Hook’s text equality, to argue that it may remain entitled Foucault, Psychology and the selectively colour-blind to racial Analytics of Power , which he finds to be difference and thereby reiterate an exciting extension of the work of whiteness. She questions mainstream Foucault of direct relevance to critical legal scholars’ support of the ‘invisibility’ race theory. Kathleen Conellan reviews of law’s whiteness, and calls on them a collection edited by Basia Spalek and to interrogate the implications of Alia Imtoual, Religion, Spirituality and the whiteness, in order to expose and Social Sciences , which she describes as challenge law’s reproduction and a ‘sparkling mosaic’ of significant maintenance of racial marginalisation contributions to interrogations of and privilege. spirituality and faith which reveal the
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hegemonic status of established References religions, disguised as secularism.
Crenshaw, K. et al (eds), 1995. Critical To conclude, we wish to offer our Race Theory: The Key Writings that gratitude to the many people who Formed the Movement , The New made this issue of the ACRAWSA e- Press, New York. journal possible. Our deep thanks to all of the contributors and to the Delgado, R., and Stefancic, J. (eds), anonymous referees who gave 1997. Critical White Studies: Looking generously of their time and expertise. Behind the Mirror , Philadelphia: We would also like to thank Damien Temple University Press. Riggs for his support with editorial Moreton-Robinson, A. 2004a. Preface, in matters, and Alan Han, who made this A. Moreton-Robinson (ed) Whitening issue magically appear. Race: Essays in Social and Cultural Criticism , Canberra: Aboriginal It is our fervent hope that this issue Studies Press. contributes to and encourages a —— 2004b. ‘The possessive logic of greater body of scholarship which patriarchal white sovereignty: The engages an interdisciplinary approach High Court and the Yorta Yorta to critique and deconstruct the function decision’, borderlands e-journal 3(2), of hegemonic whiteness in Anglo-
Jennifer Nielsen is a Senior Lecturer in the —— 2002. ‘Buried Alive’, Law and School of Law & Justice at Southern Critique , 13, 253–69. Cross University. Her current research focuses on the application of critical whiteness studies to discrimination law and the workplace.
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ACRAWSA E-JOURNAL
Volume 4, Number 2: 2008 ABSTRACTS LAW, RACE AND WHITENESS
EDITED BY TRISH LUKER & JENNIFER NIELSEN
ARTICLES
OUT OF CONTEXT: THE LIBERALISATION AND APPROPRIATION OF ‘CUSTOMARY’ LAW AS ASSIMILATORY PRACTICE
NAOMI FISHER
When white people came, they brought a culture, set of values and ontology that deemed Country and her people as terra nullius and Aboriginal Law non-existent . They used their reasoning to justify invasion, dispossession and genocide. Today, terra nullius continues, cloaked in ‘post-colonial’ rhetoric: that Australian society resides in an enlightened era, temporally distant from policies of protection-segregation and assimilation. Ironically, the liberal, democratic values that rooted government policies of the past continue to inform the policies of the present, securing a contemporary enmeshment of Aboriginal people and Law, at sites of bureaucratic and legislative intervention and control. The liberal discourse of equality is also employed to coerce Aboriginal people into seeking remedy/justice from the common law. Hegemony is furthered by the ‘incorporation’ of Aboriginal Law into common law legislation such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and through bureaucratic protocols such as the Australian Law Reform Commission’s report, The Recognition of Aboriginal Customary Laws (1986). However, ‘r ecognition’ or ‘ non -recognition’ of Aboriginal People and Law in the discourse of equality amounts either to incorporation or erasure and grants legitimacy and power to common law jurisdictions. Whenever Aboriginal context and ontology is removed, our Law is appropriated and assimilated . Without Aboriginal knowing and seeing, it is no longer Aboriginal Law. The claim that Aboriginal Law has informed or been ‘recognised’ in certain pieces of legislation is therefore erroneous. Dialogue between Aboriginal Law and the common law is prevented and white hegemony is reiterated: it is therefore a ‘conversation’ white, democratic liberalism has with itself.
WITNESSING WHITENESS: LAW AND NARRATIVE KNOWLEDGE
TRISH LUKER
In this article, I interrogate the reception of testimonial evidence given by Lorna Cubillo in the trial of Cubillo v Commonwealth , the landmark action taken by members of the Stolen Generations. Drawing on Jean-François Lyotard’s account of the distinction between narrative knowledge and scientific knowledge, I argue that while law makes its claim to legitimacy through demonstrable proof, it must ultimately seek an appeal to narrative forms of knowledge. The relationship between law and narrative is key to a
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critical reading of Cubillo, which provides an important site for an analysis of the function of whiteness in the treatment of evidence in Anglo-Australian law. I argue that through reliance on legal positivism as the method of judicial interpretation, the decision privileges forms of ‘scientific’ knowledge which most readily support dominant paradigms of historical truth. At the same time, the significance of ‘narrative’ knowledge to the arguments presented in the case, particularly that which does not support notions of white cultural memory, is discredited.
PINNED LIKE A BUTTERFLY: WHITENESS AND RACIAL HATRED LAWS
KAREN O’CONNELL
This article explores ideas of whiteness and racial harm by focusing on an area of law in which these themes are pivotal: the regulation of racial hatred. Racial hatred provisions in anti-discrimination laws were established to provide a public space protected from offensive or intimidating racist behaviour. However, based as they are in equality doctrines, they also allow whites to bring claims of racial hatred against blacks. How does law respond, and how should it, when white applicants present themselves as victims of racial harm? This article argues for a legal response that makes embodiment central to the resolution of these cases.
An embodied approach to racial hatred cases can bring justice for black respondents, but also allows whiteness, which is generally obscured in law, to be rendered visible. Exposing whiteness to examination can lead to a more coherent racial identity for whites and a richer and fairer system of law.
THE WHITE SUBJECT AS LIBERAL SUBJECT
GRETA BIRD
In this article I use storytelling to explore the production of the white subject as the liberal subject—the full citizen. Drawing on Indigenous theorists such as Irene Watson and Aileen Moreton-Robinson, I critically reflect on aspects of my life and demonstrate that my whiteness is a form of property that has allowed me to shift my class position. In contrast, the Aboriginal person is denied full humanity, living in a country subjected to violent hierarchies of race. In my academic research, I have travelled far to gather data on racist practices and called for change. However, I had not realised the racism located within the practices of family members and how I had benefited from these. Here, I acknowledge that the construction of my white citizen’s subjectivity in a raced nation entails a racism lodged in my unconscious. I set ethical goals for myself arising out of the understanding flowing from critical reflection on my whiteness.
A CRITICAL DISCOURSE ANALYSIS OF THE LANGUAGE QUESTION IN AUSTRALIA’S IMMIGRATION POLICIES: 1901-1957
FINEX NDHLOVU
Australia’s immigration policies have remained an unsettled area subject to political disputation since the promulgation of the Immigration Restriction Act 1901 (Cth). Section 3(a) of this Act required that all prospective immigrants from non-European countries had to pass a dictation test in any European language selected by the
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immigration officer. Asian racial groups were the main target of this legislation, which was embraced as part of the ‘White Australia’ policy. Far from being an objective assessment of language proficiency skills, the dictation test was a discursive construct ostensibly designed to be failed and to exclude people whose political and racial affiliations were considered undesirable. Drawing on insights from the conceptual framework of critical discourse analysis, this paper traces and examines the use and abuse of language testing as a tool for racial and political exclusion in Australia from 1901 to 1957. Because it was during these years that successive Australian governments embraced explicit formal policies on testing language skills of intending immigrants, this period marks an important chapter in the history of Australia’s immigration policies. Since then, the language question has continued to feature prominently in public debates on Australia’s citizenship and immigration laws.
WHITENESS & ANTI-DISCRIMINATION LAW—IT’S IN THE DESIGN
JENNIFER NIELSEN
Although anti-discrimination laws have supported much social change, they have been subjected to sustained critique by legal scholars. A significant concern is that the formal ‘same treatment’ standard promoted by the design of anti-discrimination law is inherently problematic (Graycar & Morgan 2004) because it gives ‘apparent legitimacy to outcomes which … in effect embed inequality’ (Kerruish & Purdy 1998: 150). In this article, I critique the laws’ standard of formal equality, first to demonstrate the capacity of its ‘neutral’ response to reproduce and stabilise dominant privilege. Next, using the Anti-Discrimination Act 1977 (NSW) as an example, I argue that the Act’s ‘race-neutral’ and ‘colour-blind’ practice of formal equality holds capacity to stabilise and reproduce whiteness. I then argue that substantive equality—advocated by most legal critics as promoting ‘better’ forms of equality—also holds the capacity to reiterate whiteness as it can be defined through terms and conditions ‘designed for and skewed’ in favour of ‘the white majority’ (Davies 2008: 317). I conclude that this holds great implications for legal scholarship that remains selectively ‘colour-blind’ to the significance of racial ‘difference’, and call on mainstream legal scholars to open spaces to interrogate the implications of our raced position as whites (Moreton-Robinson 2007: 85).
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CREATIVE WORKS – AUTHOR BIOGRAPHIES
IT’S CAPTAIN COOK ALL OVER AGAIN …
EDWINA HOWELL
Edwina Howell is currently a PhD candidate in the School of Political and Social Inquiry at Monash University writing a thesis on the life and activist methods of Gary Foley. She has presented guest lectures in the Centre for Australian Indigenous Studies at Monash University and a seminar in the School of Anthropology on how alternative epistemologies are contested at the McArthur River Mine. Last year she co-facilitated the subject 'Hearing the Country' and tutored in CAIS in the subject 'Culture, Power, Difference: Indigeneity and Australian Identity' and has also taught at Melbourne University in the Department of Education in the subject 'Indigenous Australian History'. She is also an officer of the Supreme Court of Victoria. Edwina’s contact email is: [email protected] .
SUFFERING FROM SOVEREIGNTY
BENNA ZENABOMB (A.K.A BENEDICT COYNE) - POET/VOCALS
TH E SOUND OF WHITENESS
BENNA ZENABOMB (A.K.A BENEDICT COYNE) - POET/VOCALS
ORBITAL DINGO (A.K.A GIORDANNO NANNI) - COMPOSER/MIXER
Benna Zenabomb/Coyne is a performance poet and law student who is passionate about social and environmental justice. He has spent the best part of the last decade involved with various environmental and social justice campaigns around Australia including riding a bicycle across Australia to promote environmental awareness and spending a couple of summers at the Aboriginal Tent Embassy. After procrastinating for years he finally buckled down and began a graduate law degree which he is thoroughly enjoying. These poems were inspired by an incredible unit at Southern Cross University’s Byron Bay Summer School called Race and the Law taught by Jennifer Nielsen and Greta Bird. The poems were also inspired by the amazing writings and wisdoms critical race scholars such as Irene Watson, Michael Mansell, Ward Churchill and Aileen Moreton-Robinson. Benna recently won the Queensland State Poetry SLAM final and performed in the National Grand SLAM at the Sydney Opera House last December."
Orbital Dingo/Giordanno Nanni is a nomadic non-citizen of the world who dedicates most of his time to composing music, editing and mixing songs for Benna to sing, rap and rant on. For 8 years he explored the corridors of one of Borges' hexagons— otherwise known as academia—and came out the other end with a doctorate in colonial history, a piece of paper which testifies to his naivety in securing employment prospects, but which opened his eye to the repetition of cycles, the existential arrogance of the state vis-à-vis his fellow indigenous nomadic brothers and sisters and the instrumentality of history within the formation of social memory and collective consciousness. His most common expression is 'Orwell was right'....
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THE WHITE SUBJECT AS LIBERAL SUBJECT
GRETA BIRD
(1998; 2005; 2007) and Aileen Moreton- Abstract Robinson (2000), 1 and whiteness theorists (eg. Frankenberg 1995) to map out the violent hierarchies of race in the In this article I use storytelling to explore Australian context and to acknowledge the production of the white subject as that my subjectivity is formed within this the liberal subject—the full citizen. hierarchical system. 2 As Justice Brennan Drawing on Indigenous theorists such as stated in Mabo v Queensland [No 2] Irene Watson and Aileen Moreton- (1992) (‘ Mabo ’), Aboriginal peoples Robinson, I critically reflect on aspects of have been regarded as ‘so low in the my life and demonstrate that my scale of social organisation’ that it was whiteness is a form of property that has ‘idle to impute such people some allowed me to shift my class position. In shadow of the rights known to our [that contrast, the Aboriginal person is denied is Anglo-Australian] law’ (Mabo [28]). In full humanity, living in a country what is a desire for justice, I call for an subjected to violent hierarchies of race. ethics of alterity to reshape white racist In my academic research, I have practices and law. travelled far to gather data on racist practices and called for change. My ethical position is primarily drawn However, I had not realised the racism from the work of the philosopher, located within the practices of family Emmanuel Levinas (1979) who, writing in members and how I had benefited from response to the horrors of the European these. Here, I acknowledge that the Holocaust, argues for an ‘ethics of construction of my white citizen’s alterity’. In this ethical position, the other subjectivity in a raced nation entails a can never be reduced to the self; at its racism lodged in my unconscious. I set heart is the belief that ‘the demand of ethical goals for myself arising out of the the other obliges me’. Levinas (1972: 7) understanding flowing from critical writes of ‘the impossibility of cancelling reflection on my whiteness. responsibility for the other … a duty that did not ask for consent … that came Introduction without being offered as a choice’.3 I take from Levinasian ethics the concept The focus of this article is my reflections that before I am ‘human’ comes my upon my own story and my response to responsibility to the ‘other’. The ‘other’ my whiteness. To do this, I use who calls me into being in this article is poststructuralist theory both to the Aboriginal person. She is denied the interrogate the production of the white ‘humanity’ accorded the white subject subject as the liberal subject—the in Australian economic, political and woman/man who is a full citizen—and to legal institutions. I do not discuss reflect on the benefits flowing from this Aboriginal concepts of identity as I have privileged subject position. I draw on the no access to this knowledge. insights from Indigenous critical race theorists, in particular Irene Watson
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BIRD: WHITE SUBJECT AS LIBERAL SUBJECT
Using this theoretical framework I critique Spivak (1988: 271) speaks of marking the privileges attaching to the liberal, positionality when engaging in research, white subject of law. However, I cannot and in later work, explores how Western end there, as justice demands not only philosophers in seminal works actively the removal of the legal barriers to full prevent non-Europeans from occupying citizenship for Aboriginal peoples. It positions as fully human subjects (1999). requires the adoption of an alternative My whiteness, in a country that privileges imagining of the ethical life and a whiteness, allows me a ‘natural’ subsequent reshaping of the law. In my subjectivity that is denied to non-white theoretical position my identity is fluid, persons. My ability to speak is presumed rather than fixed; it is constructed (Moreton-Robinson 2000). I share in the through the operation of discursive modernist orthodoxy of a neutral, practices (Derrida 1992; Lacan 1982). objective position of reason. The stories I The subject ‘I’ is not an independent, choose to tell are clothed in the autonomous person; I exist only legitimacy of the white, university- interdependently, as the result of educated lawyer. If I regard the relations with others. This I theorise as an ‘problems’ in Aboriginal communities as emancipatory position. If I become flowing from a ‘welfare mentality’ and critically self-reflexive and bring into the failure of the white state to impose consciousness the racist discourses and policies of ‘zero tolerance’ and to microphysics of power that circulate maintain ‘law and order’ I will be through society, and indeed through my regarded as reasonable, pragmatic and body, there is an opportunity to resist at compassionate; indeed I may be each node of power (Foucault 1980). deserving of a federal government Out of this self-reflexivity and the grant (Watson 2007). bringing of repressed knowledge into consciousness, a transformation of To tell a story of white colonial practices, person, and ultimately of structures, can white privilege and white abuse and occur. In this context, I desire to bring neglect as the primary causes of the privilege of whiteness out of my Aboriginal trauma and disadvantage is unconscious and take responsibility for to cast aside the cloak of the my part in the violent racism that ‘reasonable man’ and put on a ‘black permeates Australian society. As Cixous armband’. It is to take a critical position (1976: 880) writes: ‘because the in the history wars, to decry the 2007 unconscious, that other limitless country, ‘invasion’ of Aboriginal lands (Watson is the place where the repressed 2007) and to court illegitimacy. manage to survive’. Storytelling To be born into whiteness in Australia is to be born into humanity. It is to have In this article I use storytelling as a way of your birth celebrated by the nation and being critically self-reflexive about my your death mourned. It is to assume the assumptions and my practices (Gordon mantle of the liberal subject. In contrast, 2005). In using this methodology, I desire to be born Aboriginal is to be not only to critique law’s claims to constituted as ‘less than human, without innocence (Fitzpatrick 1990) but to entitlement to rights, as the humanly engage in a transformative process. unrecognisable’ (Butler 2006: 98).
Watson has passionately documented Storytelling, sometimes called narrative this in her work, most powerfully in her or auto-ethnography, is a method used article ‘Illusionists and Hunters’ (2005) . by critical race theorists in the United
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States (Delgado 2002; Williams 1991), knowledge to inform my daily practice and feminists to destabilise the Western as a law teacher. production of knowledge. Knowledge is, in Western systems, theorised as arising Born into a large, struggling working from a positivist methodology, one that class family where no one had ever reifies objectivity, dispassion and gone beyond Year 8 and many, such as neutrality (Davies 2008). In contrast, my aunties and mother, had left school storytelling is a method that asserts that below or at the legal age of 14, I had a desire and subject position are always valuable property right: I was white implicated in knowledge production. In (Harris 1993). This affected my life in ways law, a discipline dominated by positivist that, until recently, I was largely theory and methods, storytelling by unconscious about. As a law student at white law professors is rare. Conference university I felt my outsider status keenly papers and articles are mostly written in terms of my class and gender. It took from a third-person, ‘objective’ position. a long time and the patience, There is a deliberate distancing of the generosity and scholarship of many person ‘speaking’ from the events they Aboriginal people before I became describe. This serves to render the aware of my position of privilege speech dry, dispassionate, inauthentic (Moreton-Robinson 2000; Watson 1998; and therefore scholarly. Duncan Lucashenko 1993, 2008). This Kennedy’s piece (1990) ‘Legal transformative process continues. There Education as Training for Hierarchy’ is is a danger in storytelling by white one of the few essays by a white, male people that it enables whitefellas to law professor that exposes the construct themselves as ‘victims’. The techniques of dress, manner and space opened for Indigenous scholars in language used to produce the the academy, arising from their lived ‘reasonable man of law’. However, experience of racism, may be colonised Kennedy is unaware of his white by white people writing about the privilege and the impact that whiteness existential pain (rather than the has on his subject position. Patricia undoubted pleasures), of their race Williams, a female Afro-American law privilege. Aware of the danger I professor, does not share Kennedy’s nevertheless write, trusting that to experience; she describes feeling like an document white privilege is a positive ‘alien’ in law school (1991). contribution to ending that privilege. As Cixous (1975: 87) asserts: My storytelling in this paper seeks to remove the cloak of reason woven in [w]riting is precisely the very the academy and reveal my skin of spirit possibility of change , the space that and emotion. I want to expose the can serve as a springboard for reproduction of white privilege in my life subversive thought, the precursory movement of a transformation of and explore the ways in which I can social and cultural structures. challenge this discursive practice (Frankenberg 1995). As Margaret Davies White Lies (2008: 215) writes: ‘knowledge cannot be disentangled from social meanings and … personal history does influence White history ‘works through radical what you know and how you know it’. I effacement, so that there never was a take responsibility for my part in the human, there never was a life, and no injustices issuing forth from my position as murder has, therefore, ever taken place’ white subject and citizen by using this (Butler 2006: 147). This is the ‘white lie’ at
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the heart and on the lips of the nation. In Australian landscape. At the linguistic Cooper v Stuart (1889) the Privy Council level, my ‘mother tongue’ was English, declared that the colony established in the official language. I was allowed to New South Wales ‘consisted of a tract of speak the language my parents spoke territory practically unoccupied without and to learn family stories from them. This settled inhabitants or settled law … it privilege allowed my identity to be was peacefully annexed to the British constituted in ways that were not dominions’ ( Cooper v Stuart 1889: 291) available to Aboriginal peoples, large (‘ Cooper ’). ‘As soon’ their lordships numbers of whom were removed from decided ‘as colonial land becomes the their families (Roach 1992; Valentine subject of settlement and commerce, all 2004). On my mother’s side, I had English transactions [are] governed by English relatives, however going to a catholic law’ (Cooper 292). In this judgment, the school and being taught by Irish nuns, I concept of property is constructed from formed an Irish-Australian identity. The a white ontology. ‘Settlement’ of land nuns were very critical of the oppression and ‘commerce’ are the basis of of the Irish by the English and students at property rights. The case was used as the school did not openly speak of any authority in Milirrpum v Nabalco (1971) English ancestry. Even now, I think of where Justice Blackburn found that the myself as from an Irish background thus Aboriginal plaintiffs had no property repressing my English heritage. I prefer to rights in land as they did not have to keep unconscious my genetic and lived right to enjoy the land, to exclude others complicity with the genocidal or to trade it as a commodity (Milirrpum behaviours perpetrated in Australia. v Nabalco 272). Property requires an exclusion of others and a desire for My sense of belonging to the broader profits. Alienability is a central feature of society developed during school years. white property. Borders must be erected Undeniably ‘Australian’, my race was an and a dominion of all within the borders unconscious quality, something that instituted; ‘Possession [is] … defined to neither I nor anyone else questioned. include only the cultural practices of Returning from World War II, my father whites’ (Harris 1993: 1721). was rewarded for his defence of ‘mother’ Britain by entitlement to a low- Personal Narrative interest war service home loan, something I later found Aboriginal soldiers were denied (Due 2008). This gift In December 2005, I attended the from a grateful nation reduced our ACRAWSA Whiteness and Horizons of housing costs enough to allow mum and Race Conference and then an dad to support and educate their five ACRAWSA masterclass. The morning of children on low-wage work. the second day of the masterclass, I was overwhelmed by flashback memories, Along with the English language, my reliving scenes from my childhood. ‘mother tongue’, came the concepts of Experiences rising from my unconscious ‘good’ and ‘evil’ and so on. English is a became vivid and pressing. I was again language built on binary terms where a young girl, surrounded by my mother’s one term is hierarchised over the other. family, and I began to feel the privilege And, within the hierarchy of this of whiteness at a deep level, beyond language structure, the ‘European’ cognitive awareness. person is deemed superior to the non-
European. Power constructs the value The ‘white lie’ of terra nullius allowed the accorded to the terms while rendering ‘settlement’ of my Irish ancestors on the
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the process ‘natural’ and hiding the supremacy. I was of a disadvantaged, mechanisms of power (Foucault 1980). (Anglo)-Irish background and female, My subjectivity was formed inside this but if I put in enough effort I could be language and is still defined by it (Lacan acceptable to the ‘establishment.’ If I 1982; Derrida 1992; Grosz 1989). In English were Aboriginal that option would have ‘whiteness’ and associated terms been closed to me. connote ‘good’ but blackness, darkness and so on are linked to ‘evil’. The I have in my academic work long European fairytales that filled my acknowledged white privilege and childhood were peopled with fair white failure to ‘construct its racist skinned, blue-eyed princes and practices as crimes’.4 However, inspired princesses; later Superman, dressed in by the ACRAWSA masterclass I began to the colours of the American flag and critically reflect on my life. My with bulging muscles, became a hero. grandmother Muriel was raped and At my Irish catholic school, the statues birthed her first baby at 14, then my and paintings of Jesus, Mary, Joseph, mother and later two other children. the saints and the guardian angels Muriel’s sister, my great Aunty Gret, left showed them fair skinned and blue- home at an early age and earned her eyed, belying the reality of the Holy living waiting on tables. The money she Family’s Middle Eastern genealogy; sent home enabled my great gran dad Jesus, Mary and Joseph were re-skinned to pay for a few acres of land on which and reshaped by the merchants of he tried to make a living growing fruit religion. and flowers. My mother grew up in this environment. On Saturday night, if Dad had a win on the horses, we went to see a film. Here During World War II, Aunty Gret started were brave white cowboys shooting up a delicatessen in Elwood in Victoria. Native Americans and taming the Here, she sold cooked rabbits and ‘West’. The only Australian film I can ‘Greta’s Home Made Jams’. The labels remember seeing was one about on the jars and the gingham tops were bushrangers. There was never any home made, but the jam was mass- mention of Aboriginal people or their produced in large tins and later struggle for their country. As school spooned into jars. Enterprise such as this, children, we sold newspapers to fish and and later my mother’s work in the shop, chip shops and used the money enabled Aunty Gret to get enough received for the starving ‘black babies’. money together to lease a hotel in Vaguely, we thought these black Euston in rural NSW at the end of the children, worse off than us, were in war. Africa. There was never any mention of Aboriginal children in Australia requiring When I was 14, Aunty Gret sent money assistance. They were absent from the for my sister and I to catch a bus to collective, white unconscious. The non- Euston. On this and later trips I began to white other existed only beyond borders learn how Aunty Gret engaged in a as the ‘white man’s burden’, as performance that produced her as the heathens requiring salvation. most powerful person in the small town and I found, as is often the case, that White Mythology the powerful are able to break the law with impunity. In contrast, those who are ‘other’—Aboriginal people in the district Born into a white skin I shared in the who lacked power—could be arrested multi-layered mythology of white
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for minor offences, such as swearing The Beginning of Awareness of (Bird 1987). Most of Aunty Gret’s trade Whiteness was done on Sundays when the pub was supposed to serve only ‘bona fide travellers’. However a bit of negotiation, In 1976, I studied a unit called Aborigines and gifts of alcohol, kept the local and the Criminal Justice System taught police away from her hotel on Sundays, by the late Elizabeth Eggleston. For my and she (illegally) served locals in the research paper I took my two small bar. Locals, however, did not include children and my mother and went back everyone. to Robinvale, Euston and Mildura and did some fieldwork interviews. I began to Aunty Gret’s Racist Practices uncover the reality of Aboriginal life in these towns. Aunty Gret had by then retired and sold the Royal Hotel. Aunty Gret would not allow Aborigines Elizabeth Eggleston asked me to be her to be served in her pub; a common research assistant on her book Fear, apartheid-like practice in rural Australia Favour or Affection (1976), the first as I later discovered. She told me that Australian text to document racism in letting Aborigines in would ‘end up in the criminal justice system. Some years fights’ and lead to the police having to later, inspired by Elizabeth’s work, with come in and restore order. She the kids (9 and 10 years old) and their described her concern that her licence father, I travelled in an old Vanguard could be under threat if there was station wagon and slept in a tent in ‘trouble’. Greta Carter was a ‘self- various camping grounds in Western made’ woman, proud of maintaining and South Australia and engaged in ‘law and order’ and not given to self fieldwork around these issues. Through reflection. interviews and participant observation on this trip, the law was unveiled. My Aunty Gret was the family success story. I positivist notions of law were shattered; loved her dearly and she was a strong the legal system was not innocent role model for me. However, I noticed (Fitzpatrick 1990); indeed it could that she was always prepared to sell accurately be described as a system of alcohol to Aborigines at the back of the injustice. The situation Elizabeth had pub, often well after business hours. At uncovered was continuing: Aboriginal times like Good Friday when hotels were people were grossly over-represented in supposed to be closed, she would drop the criminal justice system, often for off alcohol in the bush. Aunty Gret told minor, public order offences (Bird 1987). me that Aborigines liked to drink outside, particularly nearby on the banks of the During this fieldwork, I met many Murray River, or in the bush beyond the generous Aboriginal people who shared town centre. I did not question her with me their perspectives on the about this at the time. Noticing the Australian criminal justice system. I saw shadowy figures at the back of the pub the apartheid system working and and money changing hands I was still in realised that Australia was not post- a state of abysmal ignorance about colonial in any sense; rather it continued race. There was no realisation that an as a colonial state (Watson 1998; apartheid system was operating in the Moreton-Robinson 2007). I reflected that provision of services throughout the treatment Aboriginal people had Australia; that understanding came received would engender anger much later. towards all white people and was amazed that many were prepared to
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get to know me and to encourage me the new, mercantile class. Predictably, in the work I was doing. the vote was regarded as too dangerous to be offered to the On my return to Monash University I was property-less. awarded a scholarship for postgraduate study in law at Cambridge. Aunty Gret In Legal History we studied many offered me an extra $2000 as the ‘Greta documents translated from Latin and Carter Scholarship’ and I gratefully Old French. The unit concerned English accepted. It was not until the ACRAWSA legal history and the melding of Anglo- masterclass that I saw the connection Saxon and Norman legal concepts, between Aunty Gret’s racist practices as particularly concerning the title to lands. a publican and the ‘scholarship’ she We were being prepared for the gave me for Cambridge. In my field important study of (white) property. work I had been investigating white There was no mention of the centuries of racist practices far from home— Aboriginal law that cared for country. In unconscious that I had benefited, not this version of law and history, Australia only from the structural racism in was lawless and terra nullius until the Australian society, but also from the arrival of the British. racist practices my aunt employed in making a profit in her pub. As a student Property Law did not interrogate how a at Cambridge University, I donned the whole continent was transferred from university’s academic robes and the custodianship/ownership of fantasised that I belonged in that world Aboriginal and Torres Strait Islander (however a fellow student reminded me peoples to that of a British sovereign. We of the ‘pecking order in the human spent one third of a year-long course barnyard’, exuding his superior position learning the legal means for tying up in that barnyard). landed estates in England. ‘Estates in tail male’ were reliant on convoluted, White Law School feudal legal rules designed to ensure that the eldest son took the whole of the estate. This prevented the huge, At university in the 1960s, on a aristocratic land holdings becoming Commonwealth scholarship, my first fragmented. Growing up on the outskirts demonstration was in support of the of Melbourne, on the working-class side Gurindji people. The Gurindji had walked of the river Yarra, my experience was a off the Wave Hill station in August 1966 world away from English landed estates. to protest against their working conditions and the theft of their land by Much later I was pleased to see in Mabo Lord Vestey, the British ‘landowner’. Even (No 2) and Wik Peoples v Queensland so, I did not query my professors and (1996), some enlightened judges lecturers in the law faculty who taught criticising the continuing influence of British history (law) without any mention feudal legal concepts in Australian of the ‘peaceful settlement’, let alone property law. However, in spite of these the invasion, of Australia. The major aporias (Derrida 1992) the property focus was the British Civil War of the mid system in Australia is still based on a 17 th century and the struggle by the racist system. The ‘tide of history’ emerging, mercantile middle class to concept has done much to reinvent the strip the monarch of their sovereign discredited terra nullius doctrine, powers and vest these powers in a especially in Members of the Yorta Yorta property-based parliament (Stanley Aboriginal Community v Victoria (2002).5 2007: xiii), a parliament dominated by
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The legislative native title regime has and by this, our final year, we had been delivered little and is, at the conceptual fashioned into Foulcauldian docile level, steeped in racism and continuing bodies, the proper body of the liberal to dispossess. The definition of ‘native subject (Thornton 2000). title’ is based on white concepts of Aboriginal peoples’ tradition and Although Howard was on the left in his culture; concepts that are deeply political leanings, his teaching of offensive and serve to privilege white constitutional law was quite orthodox. dealings with land (Atkinson 2008). He uncritically accepted the sovereignty in Australia of the British monarch. The In the hallowed, sandstone buildings issue of sovereignty was barely touched that housed the Faculty of Law at that on, although, to give him his due no time, I heard lectures on the ‘injustices’ white academics were critical of the in the legal system. This fed my desire for concept at that time. Years later in a a more just society. However, there was newspaper opinion piece Professor never a mention of the injuries Aboriginal Howard castigated the setting up of peoples were suffering as a result of the ATSIC (Aboriginal and Torres Strait invasion and theft of their lands and the Islander Commission) describing the setting up of the system of body as the establishment of a ‘black concentration camps, euphemistically Parliament.’ Even though he was ‘the’ called ‘reserves’ or ‘missions’. Tort law constitutional law ‘expert’, I saw a flaw did not examine the fiduciary in his logic. ATSIC was very firmly on a relationship between government and government leash. Besides, it did not their Aboriginal wards, and contract law have any taxation powers or other had nothing to say about the unfair means of fundraising and was employment contracts for Aboriginal dependent on federal parliament’s workers on pastoral properties, where largesse. I had thought that parliament rations of tea, sugar and tobacco was sovereign for such reasons as its served as ‘wages’. 6 In any case, this power to pass legislation and its power material on ‘injustice’ was often dealt over supply. How could ATSIC be a with in special Honours seminars that ‘black Parliament?’ only a minority of students attended. The ‘whitestream’ courses dealt with Reflecting on my University of Melbourne pressing black letter, commercial issues. degree I realise now that ‘whiteness’ permeated the law curriculum, a naked Constitutional Law was taught in the display of Foucault’s assertion that final year of the law degree by Professor power produces knowledge (Foucault Colin Howard. Although most of our 1980). Those of us from working-class classes in other units had been run on backgrounds were a tiny minority in the the Socratic method, involving dialogue law school. This was my introduction to between teacher and the students, he the concepts of ‘good schools’ and ‘old decided against this in favour of straight school ties’. Many students had careers lecturing. Howard told us: ‘You will not in ‘daddy’s firm’ or ‘uncle’s firm’ already be contributing to this subject because secured. My working class background you have nothing worthwhile to made me feel an outsider in the law contribute’. His announcement was met school as did my gender. My whiteness with stamping of feet and loud hissing, went unnoticed, but it was my most but this was as far as our rebellion went important quality, one that made me in the law classroom. We knew that our part of the club. There were no assessment for the unit was in his hands Aboriginal students: their absence was
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‘unmarked’, by both academics and effecting, becoming; … the deed is the student body (Frankenberg 2001). I everything’ (1969: 45). To paraphrase joined the Rhythm and Blues Club, found Butler (1990), my class identity was ‘soul mates’ and became active ‘performatively constituted’ at the politically in civil disobedience in the interview, a possibility that flowed from anti-Vietnam War movement. my whiteness.
Articled Clerkship After getting to know my values and my lack of contacts (I could not bring any wealthy clients into the firm), the Graduating with a LLB Honours degree, I partners suggested I apply for a job as obtained articles with a Queen Street an academic. Perhaps my lingering law firm in Melbourne. unworldliness was a negative for me too.
A senior associate asked me to have an Re-reading that sentence, it suggests affair with him. I said: ‘But you’re a the system of obtaining articles was married man.’ He replied in a operating on ‘merit’. However, this was professional voice: ‘My dear, that’s the not the case. This firm was the one my type that has affairs’. I refused to take great Aunty Gret, now a hotel owner, up his offer and further scuttled my used for her legal business. Aunty got me prospects with the firm in the process. an introduction to the firm. I wore a After a year in that law practice the tweed suit, refined lip stick and tamed scenario of a university job began to my long tresses. Later one of the look attractive; my ‘whiteness’ eased partners told me to wear a hat and me into an academic appointment at gloves to court and offered to give me the fledgling Faculty of Law at Monash the name of a decent dressmaker. University.
On critical reflection, I am faced with Aborigines as Non-Citizens: Outlaws the knowledge that it was not my own efforts or talents that counted in getting articles in Queen Street. The ‘liberal I was a citizen: born a white subject, I promise’ (Thornton 1990) that we are all entered the gates of the law school equal citizens and make our way in the without much difficulty. At that time no world as a result of merit is shattered by Aboriginal person had entered law this experience. It was not my Honours school in Australia. To require an degree; it was the fact that I had a exemption from Aboriginality in order to relative with property that opened the receive any of the fruits of citizenship doors of that firm. My talent lay in my demonstrates that Aboriginal people ability to use the aporia Aunty Gret had were cast into the borderlands, neither opened to pass through to an articled inside nor outside of law. They had what clerkship. I had to appear to be enough Giorgio Agamben (1998) calls zoe (bare like them to merit a place in their firm. life), biological life, but were denied My birthed skin colour allowed me to bios, the political life granted to citizens. pull off this counterfeit. I aimed to look As Agamben (1998: 126) points out: like a Melbourne University law graduate at the interview and to speak like one [T]he so called sacred and too. I was performing as a liberal subject inalienable rights of man show (Butler 1990: 24). The elocution classes themselves to lack every protection given by the nuns allowed me to sound and reality at the moment in which they can no longer take the form of appropriately middle class. As Nietzsche rights belonging to the citizens of a writes: ‘there is no “being” behind doing, state.
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The British colonies in Australia and later that governance is about the Australian governments did not apply management and control of bodies. democratic legal norms in respect of Aboriginal bodies need to be controlled Aboriginal peoples: they were indeed by the state, in order to protect white ‘non-human’. Like the inmates of privilege and white property. Until 1967, Guantanamo Bay today or the asylum Aboriginal people were absented from seekers on Nauru they were/are dealt law, except as wards of the state. with by the executive, not according to Nowadays, the construction of the rule of law. This is what I take Justice Aboriginal people as chaotic and Brennan to mean when he stated in the dysfunctional is used to support the Mabo decision that Aboriginal peoples argument that Aboriginal communities were not dispossessed by the common based on communal native title do not law, but by executive Acts. Law work. The government proposed provided the legitimating tactic for the capitalist, single freehold title to land as original theft of the continent. However the resolution. the casting of Aboriginal people beyond the law soon ensured that the executive Conclusion could deal with their bodies without restraint. Genocidal behaviours were Levinas (1972: 55) writes that ‘the carried out with impunity and justified in responsibility that owes nothing to my cases—such as Kruger v Commonwealth freedom is my responsibility for the (1997) and Cubillo and Gunner v freedom of others. There, where I could Commonwealth (2001)—as in Aboriginal have remained spectator, I am peoples’ ‘best interests’ (Clark 2001). responsible, that is to say again
speaking’. In the face of Aboriginal The recent ‘history wars’, a pet project trauma at the hands of white of defeated Prime Minister Howard, has Australians, those of us who are white Keith Windshuttle asserting that ‘there Australians cannot stand silent. The was very little bloodshed’ in the injustice Aboriginal peoples suffer calls ‘settlement’ of Australia and that forth in me a responsibility that is not Aboriginal people were ‘fascinated’ by chosen, that began before memory or whites (Lateline 2003). But we know from consciousness. In writing of this ethical Aboriginal oral histories that there was position, Levinas uses the image of the bloodshed and worse (Patrick 2003). The face, not to signify an actual face but resistance left wounds and scar tissue because ‘the face is a trace of both on the bodies and spirits of otherness inscribed on the ground of Aboriginal survivors and inscribed on the self’ (Douzinas and Warrington 1994: nation’s psyche, although as a nation 166). we deny it (Bird 2005).
I write this essay as a first step towards Now Aboriginal people are being faced responsibility for the legal and other with the ‘new paternalism’: a privileges arising out of my whiteness. I paternalism laced with racism that has call for an opening of the borders at the led to the 2007 military ‘invasion’ of level of ontology and a collective Aboriginal lands (Foley 2008), the mourning of the broken, raped and suspension of the permit system and the murdered bodies of Aboriginal peoples. forced transfer of land to the federal To begin taking responsibility, I have government, a situation that has Watson explored some of the ways in which my (2005) writing of the contemporary whiteness has given me privileges. I have ‘nigger hunts’. Foucault (1980) tells us partaken of the ‘stolen goods’ derived
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from the invasion of Aboriginal country. I scholars and supportive white have received a ‘good’ education, colleagues, I can continue what is a proper health care and I own real transformative process, both personally estate. My success could be read as an and at the level of institutional example of ‘merit’ and part of the ‘lucky structures—towards a legal subject that country’ narrative—proof that Australian is no longer confined to those who are citizenship delivers on ‘the liberal white, and towards an ethics of alterity promise’ (Thornton 1990). However, using and its hope of justice. critical self-reflexivity demonstrates that in large part these ‘gifts’ have been Author Note directly linked to my aunt’s racist practices as a publican and have Greta Bird teaches law at Southern Cross flowed from the white property, inherent University. in her and my body. This white property has facilitated my shift from my birthed position in a working-class family to the Acknowledgments position of a middle-class academic lawyer. It has enabled me at the level of I would like to thank the editors, and Jo language and other discursive practices Bird for research assistance. to assume an identity as the liberal subject. References I am aware of the difficulty of resisting my culturally produced white body, the property that has brought me into full Agamben, G. 1998. Homer Sacer: citizenship. As Butler (1990: 93) writes: Sovereign Power and Bare Life (trans Daniel Heller-Roazen), Stanford: it is necessary to take into account Stanford University Press. the full complexity and subtlety of Atkinson, W. 2008. ‘Reflections on the law and to cure ourselves of the Achieving Land Justice: The Yorta illusion of a true body beyond the Yorta Case a decade on’, paper law. If subversion is possible, it will be delivered at the third National a subversion within the terms of the Indigenous Legal Conference, law, through the possibilities that Melbourne. emerge when the law turns against Bird, G. 1987. The ‘Civilising Mission’: itself. Race and the Construction of Crime ,
Clayton: Monash University. Critical self-reflection and storytelling is Bird, G. 2005 ‘White citizens are saving worth little if it provides merely a the Nation from (non) white (non) personal catharsis. citizens’, University of Western
Sydney Law Review , 9, 87–110. The bringing into consciousness of my Butler, J. 1990. Gender Trouble: Feminism white privilege is transformative only and the Subversion of Identity , New once it is put into action in my daily life. York: Routledge. To my curriculum design, teaching ——2006. Precarious Life: The Powers of practices, discursive strategies, research Mourning and Violence , London: and indeed, to my life outside the Verso. academy, I can bring the fruits of my Cixous, H. 1976. ‘The laugh of the critical self-reflexivity (Lindsay 2007). Medusa’, (trans K. Cohen and P. Supported by the scholarship and Cohen) Signs: Journal of Women in collegiality of Indigenous critical race Culture and Society , 1(4), 875–93.
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Clarke, J. 2000. ‘Commonwealth not ——2001. The Mirage of Unmarked liable: Cubillo and Gunner v Whiteness, in B. Rasmussen, E. Commonwealth’ Indigenous Law Klinenberg, and I. Nexica (eds), The Bulletin , 5(2), 11–15. Making and Unmaking of Whiteness , Davies, M. 2008. Asking the Law Durham: Duke University Press. Question (3 rd ed) Pyrmont: LawBook Gordon, J. 2005. ‘White on white: Co. researcher reflexivity and the logics Delgado, R. 2002. Story Telling for of privilege in white schools Oppositionists and Others: A Plea for undertaking reform,’ The Urban Narrative, in R. Delgado, and J. Review , 37, 279. Stefancic, (eds) Critical Race Theory: Grosz, E. 1989. Sexual Subversions: Three The Cutting Edge , (2 nd ed), French Feminists , Crow’s Nest: Allen Philadelphia: Temple University Press. & Unwin. Derrida, J. 1992. Force of Law: The Harris, C. 1993. ‘Whiteness as property’ ‘Mystical Foundation of Authority’, in Harvard Law Review, 106(8), 1701– D. Cornell, M. Rosenfeld, and D. 91. Gray-Carlson (eds), Deconstruction Kennedy, D. Law as Training for and the Possibility of Justice , New Hierarchy, in D. Kairys (ed) The York: Routledge. Politics of Law: A Progressive Critique , Douzinas, C. and R. Warrington. 1994. New York, Pantheon Books. Justice Miscarried: Ethics, Aesthetics Lacan, J. 1982. Ecrits , London: WW and the Law , New York: Harvester Norton & Co. Wheatsheaf. Lateline. 2003. ‘Authors in History Due, C. 2008. ‘“Lest We Forget”: Debate’, ABC TV, Creating an Australian National
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Nietzche, F. 1969. On the Genealogy of Williams, P. 1991. The Alchemy of Race Morals , trans Walter Kaufmann, New and Rights , Cambridge (Mass): York: Vintage. Harvard University Press. North, T. 2008. ‘Native title law’, paper delivered at the 3 rd National Cases Indigenous Legal Conference , Melbourne. Cooper v Stuart (1989) 1AC 286. Patrick, P. 2003. Statement of Peggy Cubillo and Gunner v Commonwealth Patrick, in R. Manne (ed), White of Australia [2001] FCA 1213. Wash: On Keith Windshuttle’s Kruger v Commonwealth [1997] HCA 27. Fabrication of Aboriginal History , Mabo v State of Queensland [No 2] Melbourne: Black Inc. Agenda. (1992) 175 CLR 1. Roach, A. 1992. ‘Take the Children Members of the Yorta Yorta Aboriginal Away’ Charcoal Lane , Albert Park: Community v Victoria (2002) 214 CLR Mushroom Music Publishing. 422. Spivak, G. 1988. Can the Subaltern Milirrpum v Nabalco Pty Ltd and the Speak?, in C. Nelson and L. Commonwealth of Australia (1971) Grossberg (eds), Marxism and the 17 FLR 141. Interpretation of Culture , Trevorrow v State of South Australia (No Basingstoke: Macmillan. 5) [2007] SASC 285 —— 1999. A Critique of Postcolonial Wik Peoples v Queensland (1996) 187 Reason: Toward a History of the CLR 1. Vanishing Present , Harvard University
Press, Cambridge, Mass. Notes Stanley, D. M. 2007. The English Civil War , Aldershot: Ashgate Publishing. 1 Thornton, M. 1990. The Liberal Promise: Critical race theory emerged in the United States through the work of theorists such as Anti-Discrimination Law in Australia , Richard Delgado, Mari Matsuda and Patricia Melbourne: Oxford University Press. Williams. This critique of law was based ——2000. ‘Law as business in the primarily on the oppression of Afro-Americans corporatised university’, Alternative and Latinos in the North American context. In Law Journal, 25(6) 269–73. Australia, theorists such as Irene Watson and Valentine, A. 2004. Paramatta Girls: A Aileen Moreton–Robinson have developed a work in progress , directed by Wesley new philosophical critique, what may be Enoch, Belvoir Street Theatre, called Indigenous critical race theory (see
September 2008. Robinson 2000). 2 For a discussion of subjectivity see Lacan Watson, I. 1998. ‘The power of the (1982). Lacan sees the subject as desiring Muldarbi and the road to its demise’, coherence and mastery, but always on the Australian Feminist Law Journal , 11, edge of chaos. 28. 3 Douzinas, explaining how this ethics shapes ——2005. ‘Illusionists and hunters: being subjectivity, writes: ‘My uniqueness is the Aboriginal in this occupied space’, result of the direct and personal appeal the Australian Feminist Law Journal , 25, 1. other makes on me … Before my identity and ——2007. ‘Decolonisation and my subjectivity are constituted they have been subjected not to law but to the other’ Aboriginal peoples: past and future (Douzinas and Warrington 1994: 165). strategies’, Australian Feminist Law 4 See Bird (1987). These words were written in Journal , 26, 111. 1984 after a fieldwork trip in WA and South Australia.
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5 Dr Wayne Atkinson, Yorta Yorta man and Research Fellow at the University of Melbourne and Justice Tony North, judge of the Federal Court delivered papers on the deficiencies in the native title regime on Saturday 13 th September 2008 at the third National Legal Indigenous Conference (North 2008). 6 On the liability in tort see Trevorrow v State of South Australia (No 5) [2007].
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
FORBIDDEN KNOWLEDGE? THE POLITICS OF VOICE, WHITE PRIVILEGE AND THE ETHICS OF RESEARCH
DENISE CUTHBERT
Response inquiry were properly not my ‘business’ as a white researcher. In this and some other respects, this research is the In the last issue of this journal (2008, 4(1)) product of a particular historical Damien Riggs criticised my work (2000a; moment. Riggs criticises the partiality of 2001) on non-Aboriginal adoptive/foster my research design on this point: why mothers of Aboriginal children in his didn’t I speak to Aboriginal mothers? article ‘White mothers, Indigenous Why did I not also speak to stolen families and the politics of voice’. Riggs children? For the reasons outlined here, I raises some challenging issues around ruled out as inappropriate for me the politics of voice and the privileging research with stolen children or their of whiteness that go beyond my now families. The research was designed dated case-studies, and have specifically as a critical inquiry into white implications for all researchers experience for the insight it might bring concerned with critical race issues. I use to our understanding of non-Indigenous the opportunity provided by the editors complicity in Indigenous child removal. to enlarge the critical space (re-) As a consequence of this, the research is opened by Riggs and to address some partial (as indeed all research is) as key points related to my own work and Riggs correctly notes. some considerations which have bearings on the ethics of research. Thus willingly constrained, I continued to
work on Indigenous child removal and It is useful to provide a brief background on the national assimilation project as it to the research which may go some took shape in the period after the way to addressing Riggs’ concerns with Second World War. The question of the its design and methodology. In 1996, in white women who adopted and the final stages of the Human Rights and fostered Aboriginal children during these Equal Opportunity Commission’s inquiry years—on which I had seen no into the forced removal of Indigenous research—emerged. Here, it seemed, children (1997), I began work on the was a way in which I could contribute to same subject. Scrupulously—I now knowledge on this chapter in consider it, over-scrupulously—I sought a Indigenous–settler relations within the point of entry into this field which would ethical research parameters I had set. not, as I saw it then, encroach on, or Through the subject of the white women compromise, the primacy and authority who adopted/fostered Indigenous of Aboriginal voices/ experience on the children, I saw a way in which I might issue of Indigenous child removal and its combine my commitment to Indigenous consequences. I was certainly well- issues with my commitment to feminist versed in one version of the ‘politics of inquiry, while observing the principle of voice’ via the terms formulated in the not attempting to speak for, or on behalf Bell-Huggins et al debate (Bell and of, Indigenous peoples. I hoped that this Nelson, 1989; Huggins et al 1991), and inquiry might shed some light on the considered then that certain areas of
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
DENISE CUTHBERT: FORBIDDEN KNOWLEDGE
ways in which the national project of Riggs’ second concern with my research Indigenous assimilation played out in the design and methodology—that the private spaces of non-Indigenous exclusive focus on white experience families (drawing on the child-rearing bespeaks and perpetuates white labour of white women to do the job of privilege and colonial violence—is an assimilation on behalf of the state) extremely difficult point to negotiate, as following provocative leads from he acknowledges. To the many points Deborah Bird Rose who writes that the made by Riggs, I add this consideration: violence of colonisation impacts on both it is hard to know how white privilege colonised and coloniser and that this might be critically analysed and impact may also be seen to be examined unless it is critically analysed gendered in its effect (1996; 1997; and examined. It is hard to know how Cuthbert 2000). Riggs finds the resultant this might be done other than by research objectionable and generative listening to white voices, reading white of firstly, what he sees as my uncritical words, analysing white legislation, enshrining of white privilege and, examining white media representations, secondly, the perpetuation of violence and so forth. While acknowledging that against Indigenous people, which is the this work is difficult, deeply main focus of his essay. uncomfortable, potentially com- promised and compromising, and when I no longer adhere strictly to the scruples undertaken by white academics bound which then prevented me from to perpetuate white privilege at some embarking on a research design which level, it is necessary to allow for some incorporated both black and white critical space in which work of this kind experience but my reasons for revising can be pursued. By the very reason of its this position are less aligned to the hegemonic status, white privilege critical points raised by Riggs and much continues to demand critical attention. closer to the reasoning outlined by Foregrounding white experience David Hollinsworth (1995). He argues that precisely so that racism and white a regime in which Aboriginal ‘speech’ is privilege might be examined and only deemed possible in the face of understood is not logically equivalent to white ‘silence’ results in compromised foregrounding white experience so as speech wrested from racist paternalism, further to enshrine white privilege, power existing in an ‘epistemological no-go and violence. If it were, there would be zone’ which is antithetical both to good little or no room for the sustained critical scholarship and to a thorough-going analysis these issues so patently call for. anti-colonial and anti-racist political Arguably, the risks in not doing work of project. I remain open on the ‘politics of this kind outweigh those entailed in voice’. Due to my own on-going undertaking it: partial, flawed, difficulties in settling this question to my provisional though it might be. We all satisfaction, when approaching the need to work, and support each others’ work of others, I do so in full awareness efforts, to find, maintain and defend the of the enormous personal, ethical and discursive and institutional space for this political challenges entailed in work of work to continue. Make no mistake, this kind; and the very uncomfortable there are others who would seek to shut space researchers, particularly white it down (see, for example, @ndy, 2008 researchers as noted by Riggs, occupy and Richardson, 2007). when researching and writing on whiteness and race in the settler-colonial One remedy posited by Riggs against situation. the perpetuation of colonial violence
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which he sees enacted in giving space We can only understand this by listening to the voices of non-Aboriginal to and analysing their stories. As adoptive/foster mothers to be heard, is researchers, this is our ethical to leave the voices of these women responsibility. ‘unspoken’. Some voices, Riggs argues, are so inherently violent and so In research on colonisation which is objectionable, that they should not be directed towards thorough de- spoken at all. Riggs’ position may be colonisation and social justice we will responded to in a number of ways, not get far enough if we only listen to which time and space prevent. I make one side of the story, or as Riggs only the following points. Truth and suggests, exclude certain voices from reconciliation commissions are built on our research. Understanding is a dialogue and reciprocity that include necessary pre-condition for countering not only the voices of those injured but and dismantling the deep, persistent also those who perpetrated those and, at times very subtle, cultural and injuries. To shut out some voices is to political logic of colonialism and racism. render such efforts futile. Further, while We need to be highly attuned to and familiar with the work of Frankenberg prepared to research, critically analyse (Cuthbert, 2000a) and others in the and report all voices and all experiences (then) emerging field of whiteness as they bear on the past and present of studies, my empirical research with white Indigenous-setter relations in this country, women readily confirmed that white and the myriad injustices which flow privilege is not a monolith. Different from the inequities structured into these whites are positioned differently in relationships. relation to whiteness; race intersects with gender and class in complex ways. If we as scholars and researchers—even Listening to the stories of these women— for a minute, even with the best most painful, all complex, some intentions in the world—allow ourselves surprising and others offensive— to subscribe to the vision of politically- confirmed the need for a variegated engaged research posited by Riggs, in response to, and theorisation of, which some voices are silenced or whiteness (just as it sorely challenged excluded from scrutiny and analysis certain feminist precepts about research (and we might ask, excluded by with women). whom?), we may well find ourselves in a place which is very different from that Further, the politics of colonialism played for which we are striving; and, perhaps, out very differently in the lives of not all that different from the places, different women. Some of the white dark and fearful, to which we seek never women were actively complicit in the to return. assimilation project and this led them to seek out Indigenous children for Author Note adoption; others adopted Indigenous children simply because they became Denise Cuthbert is a member of the available at the time they sought to School of Poltical and Social Inquiry at adopt; and others still had no idea the Monash University. With Marian Quartly, child/ren they adopted were Shurlee Swain and Kate Murphy, she is Indigenous. The politics enacted in the currently working on an Australian lives of these women ranged from Research Council funded social history complicity with to resistance against the of adoption in Australia. Email: then dominant regime of assimilation. [email protected]
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References Cultural Studies , Footscray: Department of Humanities, Victoria University of Technology. @ndy 2008. ‘White privilege // Whiteness Richardson, M. (2007) ‘Whiteness Studies’ Studies’ on Slackbastard: anarchy on OzConservative: An Australian and apathy battle it out on @ndy’s traditionalist conservative site blog
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
OUT OF CONTEXT: THE LIBERALISATION AND APPROPRIATION OF ‘CUSTOMARY’ LAW AS ASSIMILATORY PRACTICE
NAOMI FISHER
Abstract
it is no longer Aboriginal Law. The claim When white people came, they brought that Aboriginal Law has informed or a culture, set of values and ontology been ‘recognised’ in certain pieces of that deemed Country and her people legislation is therefore erroneous. as terra nullius and Aboriginal Law 1 non- Dialogue between Aboriginal Law and existent . They used their reasoning to the common law is prevented and white justify invasion, dispossession and hegemony is reiterated: it is therefore a genocide. Today, terra nullius continues, ‘conversation’ white, democratic cloaked in ‘post-colonial’ rhetoric: that liberalism has with itself. Australian society resides in an enlightened era, temporally distant from Introduction policies of protection–segregation and assimilation. Ironically, the liberal, democratic values that rooted To begin this article, I observe the government policies of the past Aboriginal cultural protocol of continue to inform the policies of the identification (Moreton-Robinson 2000). I present, securing a contemporary live on Turrbal ancestral homelands, enmeshment of Aboriginal people and Meeanjiin, now known as Brisbane, and I Law, at sites of bureaucratic and acknowledge the Turrbal people for legislative intervention and control. The allowing me to call this place home. I do liberal discourse of equality is also not know to which Country my people employed to coerce Aboriginal people belong and this is a source of sadness. into seeking remedy/justice from the Not much is known of my grandfather’s common law. Hegemony is furthered by ancestry; my lightness of skin has the ‘incorporation’ of Aboriginal Law allowed me to escape reasonably into common law legislation such as the undetected from white’s apprehending Aboriginal Land Rights (Northern stare. Yet, I ‘go proper way’ on Country Territory) Act 1976 (Cth) and through and I thank the Elders I have met over bureaucratic protocols such as the the years, who have taken the time to Australian Law Reform Commission’s share and teach Law, including Elders report, The Recognition of Aboriginal and Aboriginal academics who teach Customary Laws (1986). However, through their written stories. It is within this ‘recognition’ or ‘ non -recognition’ of standpoint—as an Aboriginal woman Aboriginal People and Law in the learning and journeying back to her discourse of equality amounts either to culture, place and identity—that I write: I incorporation or erasure and grants feel I have to talk up and talk strong to legitimacy and power to common law counter the dominant ideology and the jurisdictions. Whenever Aboriginal daily outrages it perpetuates. It is, as it context and ontology is removed, our has always been, through our culture Law is appropriated and assimilated . and knowing, that we remain strong and Without Aboriginal knowing and seeing, grounded.
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
FISHER: OUT OF CONTEXT
When they come here, they come presumed/presume a sameness of the wrong way (Uncle Kevin identity: to be equal, one needs to be Buzzacott 1988 in Watson 1998: 36). white (Goldberg 1993: 6-7). Thus the common law practices of assimilation– Since invasion, Aboriginal Law has been integration, rid individuals of their disregarded through murder, vilification differences, so that citizens could/can and defilement of People and Land. The be governed equally by the state coloniser’s doctrine of terra nullius meant (Goldberg 1993: 7; Leech 1988: 82). In that the Land not only belonged to no- effect, then, liberalism targets Aboriginal one but had no law, no presence, no Law through enmeshment, incorporation being. This assessment of Land was/is and ‘recognition’ while attempting to based in the values of the incoming extinguish its jurisdiction, ontology and ‘culture’: Land was/is an economic legitimacy. possession, to be taken or lost according to military might, but was/is without spirit Yet, a core ideal of Aboriginal culture is or intrinsic value of its own. Under the that this is an Aboriginal continent, even gaze of white people, the Land became if our people no longer exist, and the what they wanted it to be: vacant, Law cannot be extinguished, regardless exploitable, alien, harsh, yet vulnerable of the claims of white law to do so (Lila to their dominance. Its people were Watson 2006; Irene Watson 2000). hunted and almost destroyed—this land was ‘made’ ‘terra nullius’, its ‘blank’ [Our Laws] were not created by canvas to be painted in the hues of humans and they cannot be white people’s ‘values’. extinguished by them, through whatever processes they devise … The colonisers’ social practice and The old people know the law and its common law also brought and imposed onerous obligations. Obligations ‘self-evident’ and ‘natural’ liberal values which hundreds of Aboriginal peoples still carry today (Watson (Leach 1988: 81): the ideals of 2000: 1). individualism, ‘the moral, political and legal claims of the individual over and This article aims to show how current against those of the collective’; equality debates, legislation and case law as ‘the recognition of a common moral attempt to appropriate and assimilate standing, no matter individual Aboriginal Law. This has been done, first, differences’ and the universality of these by transplanting liberal Western, principles in their application to democratic values and creating white humanity, transcending history, society jurisdictions ‘over the top’ of Aboriginal and culture, but located primarily in the ones. Secondly, liberalism has created capacity to exercise reason (Goldberg historical, ‘inferior’ and ‘deviant’ 1993: 5). The ‘universal subject’ of these Aboriginal subjects, through racialised values, however, denied/denies that science and government policy, to race is a fundamental cultural motivator legitimise white jurisdictions, establishing of human beings, while simultaneously a contemporary template of declaring race as something that enmeshment of Aboriginal people within impaired/impairs people’s capacity to the criminal justice system, state exercise reason and therefore their bureaucracies and legislation. Thirdly, common humanity and ‘right’ to the claim that we live in ‘post-colonial’ equality (Goldberg 1993: 4). Australia implies that the time of racism, Paradoxically, while declaring a dispossession, genocide and assimilation tolerance of others and the ‘irrelevance has ended and enlightenment has of race’, liberal notions of universality
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prevailed due to the ‘triumph’ of white, demonstrate that whenever we sit at a liberal democratic values. table of ‘negotiation’ or seek ‘remedy’, we have to leave our Aboriginality, our To demonstrate the effect of these values, at the door (Harris 1996; Murphy liberal discourses of equality and the 2000; Alfred 1999). We must always ‘recognition’ of Law and Aboriginality, I journey into their liberal world, using their examine the Aboriginal Land Rights language, their rules and mores, their (Northern Territory) Act 1976 (Cth) (‘Land ways of thinking and being. The central Rights Act’) and Mabo v Queensland tenet of my argument is that without our [No 2] (1992 ) (‘ Mabo decision’), which knowing and cultural grounding, our both rest on the presumption that the stories and perspectives, dialogue is common law is settled and ‘legitimised’ prevented and white hegemony is in its power structures and that reiterated and anchored. Whenever Aboriginal people are ‘citizens’ of the Aboriginal context and ontology is ‘common-wealth’. We must now turn to removed, our Law without that which the common law instead of our own law makes it what it is, is liberalised , to ‘supply’ us with our Land, our ‘rights’, appropriated and assimilated . our business, even who we are . However, as I further demonstrate Creating Aborigine through my analysis of the Hindmarsh Island affair, ‘non-recognition’ of The liberalisation of Aboriginal Law Aboriginal Law is in ‘false opposition’ to began with the creation of Aborigine . recognition: both terms demonstrate Terra nullius survives as colonising incorporation/assimilation, or the principle because Aborigine bore/bears disregard of Aboriginal Law, and value-laden cultural judgement, applied ultimately, both end in erasure (Murphy by white people to justify the colonial 2000). project of ‘civilising’ erasure. Goldberg
(1993: 149) argues that white people The underlying theme of this discussion is saw and ‘knew’ Aboriginal people—by that liberal terms and values are applying the racial knowledge of their imposed , even if incorporated by sciences, they furnished themselves with Aboriginal people, and that this a definition of what was Aboriginal. This discourse is a monologue. It is a monologue of the coloniser’s own monologue because it is a cultural understanding in effect ‘conversation’ that white, democratic produced an Aboriginal subject. liberalism has with itself, without
Aboriginal input. We are talked about, Once produced, the terms of talked at, talked to but never spoken articulation set their users’ outlooks. with . As I explain, reports such as The The categories that now fashion Recognition of Aboriginal Customary content of the known constrain how Laws (Australian Law Reform Commision people in the social order at hand 1986), try to address the recognition of think about things. Epistemological Aboriginal Law within a common law ‘foundations’, then, are at the heart context but always within white terms of of the constitution of social power reference, white frameworks and (Goldberg 1993: 149). ontology: the ways that they ‘know’ us, not the ways we know/knew ourselves. Goldberg (1993: 149) argues further that these foundations to anthropology and Ultimately, the narratives operating biology, criminology and sociology within these common law discourses provide/d the basis for the white gaze, in turn assuming and theorising not just the
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inferiority of Aborigine , but more ‘abandoned’ because of international importantly, the superiority of whiteness . obligations and pressure, their effect The Other is named, brought into very was continued by criminalising existence; not only is this a denial of the Aborigine . Other’s right to know itself, but a pronouncement of whiteness to know Criminal definitions [laws] describe what is best , to ascertain the limits of behaviour that conflicts with the knowledge, and extend ‘power, control, interests of the segment of society authority and domination over them that have the power to shape public policy … [and] are applied by … [the other]”’ (Goldberg 1993: 150). This [those] that have the power to knowing is predicated on the apparent shape the enforcement and neutrality of whiteness: the neutrality of administration of criminal law its patriarchal, liberal, democratic values (Quinney 1970 in Akers 2000: 170). (Moreton-Robinson 2004; Murphy 2000). White man is ‘everyman’: he claims Accordingly, the institutionalisation of universality and commonality of Aboriginal people was/is maintained existence and experience, while through the criminal justice system. The ironically erasing difference in the common law has traded one institution declaration of human unity and equality for the next, one genocidal policy for (Goldberg 1993: 5). another. What was once the mission is now the prison, foster care or juvenile The universal claims of Western remand; what was assimilation policy is knowledge, then, colonial or the Native Title Act; the Protection postcolonial, turn necessarily upon Acts—though officially abolished— the deafening suppression of its continue to reappear in contemporary various racialized Others into silence (Goldberg 1993: 151). forms (Haebich 1988; Broadhurst 2002: 268), most recently the Northern Territory In the silence created by terra nullius , intervention). Informed by their liberal, Aborigine is created as uncivilised, democratic ‘values’, white society has lawless and deviant, incapable of imposed its cultural rules and mores on governing or controlling itself. Broadhurst Aboriginal people. The institutions of (2002: 263) calls this ‘Aboriginalism’: the common law, the police and courts, reduction of Aboriginal culture and reinforce these mono-cultural values, constitution into simplified biological criminalising behaviours such as public generalisations or myths that persist in drunkenness and offensive language, the sciences and that are ‘embodied in which ‘intensifies the criminalisation of all the discourses and practices … the Aboriginal domain’ (Broadhurst 2002: between Aborigines and the dominant 276). The infraction of rules constitutes non-Aborigines’; of course, this includes deviance and renders Aboriginal Aboriginal Law. To govern such a people criminal outsiders. This serves to subject requires intensive information, cement the identity and unity of liberal surveillance and control: the democratic society, while creating an enmeshment of Aborigine into white imagining of Aboriginality that has jurisdiction. become a self-fulfilling prophecy (Akers 2000: 124-5; Moreton-Robinson 1999). Government policies of protection– The system of law that segregation and assimilation, while perpetrated/perpetrates acts of serving genocidal intents, instead violence, dispossession and murder sits in claimed intervention was ‘liberation’. 2 ‘judgement’ of our people, while However, after these policies were disregarding its own legacy of
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dispossession (Atkinson 1996). Its traditions, ceremonies and moral template of enforced institutionalisation behaviour come from Law, which and removal from Land results in the derives its power from Country and Time deprivation of social control itself. 3 To say that Aboriginal Law is perpetuating what liberalism perceives customary (like the common law), to be ‘lawlessness’ which justifies negates not only its source, Creation, interventions and criminalisation. In this but relegates the Law into something way, Aboriginal people and their Law that can be discounted, and its keepers are enmeshed into common law ‘stone-age primitives’ acting in ‘jurisdiction’. ‘Family responsibility irrelevant, archaic superstition. Non- commissions’, increasing Aboriginal Aboriginal Australians fail to realise arrest rates and deaths in custody, however that to live on this land means compulsory quarantining of welfare that they too are subject to its Laws, payments and ‘shared responsibility regardless of the imported law. agreements’, all point to the continuance of racially-based When Aboriginal Law is perceptions and the psychological terra included/integrated into common law, nullius rooted in liberal doctrine. All these liberal common law bases its policies aim to break resistance by presumption of understanding within the coercing Aboriginal people into limits of its own law. This begs the surrendering their Law, culture and question: how can there even be a ontology, to assimilate to homogenous, comparison between these bodies of ‘free’, Australian citizenry. law? They are incomparable as to their power, strength and longevity. The However, these racialised assumptions discussion therefore, is entirely located in of lawlessness are a denial of the Law of liberal notions of primacy, ‘relevance’ the Land, in operation since time and hegemony. immemorial, and of a people autonomous and inherently morally Of course, we as a people do not have responsible (Graham 2006). Aboriginal to accept the terms of definition. ‘jurisdiction’ encompasses land, sea, sky, animal, human, mineral, rock and tree The task remains for the other to and is complex, inter-related and in refuse to position itself in the existence : if the Land is here, the Law is subject’s dialectical and discourse of here (Watson 1998; Kwaymullina 2005). difference and to reposition itself outside this discourse and to define Aboriginal Law is the Law that governs itself as subject (Murphy 2000: 35). all human relations through mutual responsibility, love and respect, not only This talking back and taking back of our to each other but to Country, the spirits authority is intrinsic to asserting ourselves and the Ancestors. This shapes how on our own Country, and to practising Aboriginal people see their world and our Law. As Uncle Kevin Buzzacott (2001) their position in it, as well as the ordering says, ‘they have no jurisdiction’: when of that world: if we are a part of Country we take on the primacy (and as all other creatures, then the legitimacy) of the common law, we responsibility to conduct and maintain participate in our own colonisation and those interrelationships is powerful and assimilate ourselves . Yet, it is not organic. Unlike common law, which is surprising that we give credence to the derived from white cultural mores and common law considering its systematic customs and the perceptions of morality control and violation of our people and of the day, Aboriginal customs, Law, since invasion. However, our Law’s
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longevity and survival demonstrates its appropriated form and, so, robbed of its quality and strength: its existence context and meaning . The following is cannot be denied, either by Aboriginal not an intensive legal analysis of peoples or non-Aboriginal peoples. But legislation or judicial decisions. I do not in many ways we have become need to add to what has been done distanced from our Law via hegemonic many times before and further legitimise reiteration and genocidal government the monologue of the coloniser.4 What is policy and we have been excluded examined is the cultural values and from the common law through the discourses that underpin these Acts and ‘denial of … political rights’ (Murphy decisions; the ontology and reasoning 2000: 28). Why then engage with the that furnishes and therefore perpetuates liberal, democratic articulations of what Watson describes as the ‘muldarbi ’ equality espoused in case law and (1998). legislation to ‘gain’ our rights? Have things really changed for our people This illusion of the recognition of since we ‘got the vote’ in 1962, or since indigenous rights has created a the referendum of 1967 when we were potency that allows victims to be counted, in a numerical sense, as more easily drained of their lifeblood as they are caught unaware … it is a human beings? deception (Watson 1998: 42).
Common Law ‘Recognition’ The Woodward Commission, established in 1973, was to investigate the: White political discourse counts the Land Rights Act, the Mabo decision and the appropriate means to recognise and Australian Law Reform Commission’s establish the traditional rights and interests of the Aborigines in relation report on customary law, as milestones to land, and to satisfy … the in the recognition or partial recognition reasonable aspirations of the of our Law and ‘rights’ to Country. Yet Aborigines to rights in or in relation to this is misleading, as liberal democracy land (in Neate 1989: 8; emphasis will only ‘include’ elements of our Law to added). the extent that they can be made similar to itself . To claim the ‘rights’ that It was set up to investigate how to liberal democracy offers, we have to be ‘further’ the land claims of Aboriginal like whites and we have to ‘sell out’ our people particularly as a result of the Law. Federal Court’s failure to recognise any ‘land rights’ in Millirrpum v Nabalco Pty Only through the scientific and Ltd (1971). In this regard the aim was to Western gaze of the experts could vest title in land to Aboriginal people in customs and traditions be fathomed the Northern Territory through changes in by the legal discourses of the state . legislation and via ‘suitable procedures Indigenous self-governance was vulgarised and de-legitimised by for the examination of claims to reference to oriental and exotic Aboriginal traditional rights and interests’ forms of despotism (Broadhurst 2002: while honouring existing ‘Government 263; emphasis added). contracts, mining rights or otherwise’ (Letters Patent in Neate 1989: 8-9). In the Land Rights Act and the Mabo According to Commissioner Woodward, decision, Aboriginal Law—particularly the motivation to produce legislative that regarding ‘rights to Land’ and change was ‘the doing of simple justice ‘ownership’ of Country—is studied, to a people who have been deprived of reinterpreted and regurgitated in an the land without their consent and
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without compensation’, the provision of public monies’ (Woodward, in Neate land as an economic base to achieve 1989: 10). This demonstrates that, to ‘get ‘a normal Australian standard of living’, Land back’ the old people must trade the ‘preservation … of the spiritual link their independence as bosses on with his [sic] own land’ and the Country, for white man’s system of ‘improvement of Australia’s standing accountability: enmeshment and among the nations of the world by bureaucratic dependence. How demonstrably fair treatment of an ethnic different is this from policies of protection minority’ (Woodward, in Neate 1989: 9). and assimilation? How can Aboriginal But, could the same system and culture people be ‘fully consulted’ and that dispossessed us for its economic ‘negotiate with government for gain now preserve our spirituality and do changes’ when they are forced to us justice ? How far would the operate within frameworks that Commission, and therefore the Act it historically rendered them politically recommended, go in enabling this powerless? How is land, or even process? autonomy, ‘given back’, when you still must answer to someone? The clues are in the mechanisms Justice Woodward proposed to achieve these To ‘negotiate’ we have to aims and it is important to note that trade/abandon the values and ontology these were the basis of the legislative that make us Aboriginal. In this way the framework later implemented by the Commission’s fundamental purpose to Fraser government. These ‘rights in land’ ‘remedy’ the decision handed down in were not to be eroded, unless ‘the Millirrpum v Nabalco Pty Ltd (1971) was national interest positively demands it’ merely its reiteration. (Woodward, in Neate 1989: 9). If the ‘Traditional Owners’ vetoed a mining According to Neate (1989), the Land lease on Country, the government could Rights Act introduced to the common override this decision for the nation’s law notions ‘drawn and interpreted from economy. This is called ‘balancing traditional Aboriginal law’, such as competing interest’ (Neate 1989: 14). It is ‘traditional owners’. 5 Yet ‘Traditional evident that title grants were ‘given’ Owners’ in Aboriginal Law (whilst within a liberal value-set of land as acknowledging my limits in cultural possession, as land provision was to knowledge), are those who speak for remain limited by that ‘which the wider Country, who have a duty of care and community can afford … where it will do responsibility for the observance of Law most good, particularly in economic for that Country. They are the supreme terms, to the largest number of authority in human embodiment on Aborigines’ (Woodward, in Neate 1989: Country, deriving their ‘power’/ 10). ‘legitimacy’ from the Law/Land and their Ancestors. The idea that ‘Traditional Land as interpreted by white, liberal, Owners’ would claim their land from an democratic values was/is a tool of ‘Aboriginal Land Commissioner’ who reward, belonging to no-one, to be ‘considers Aboriginal tradition’ and then given and taken away at whim, for the grants it to an Aboriginal Land Trust greater good, defined by white law. (Neate 1989: 16) not only disrespects There was to be ‘as much autonomy as Aboriginal Law but actively undermines possible … but there must be some it. The assumption that white accountability by Aboriginals [sic] for governments can interpret and adapt a their use of lands, natural resources and miniscule portion of Law and somehow
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claim to be boss of Country would be Aboriginal Law is delineated/balanced laughable, if it were not for the serious between Men’s and Women’s Law: ramifications on Aboriginal Law and Land/Law depends on the Country (Watson 1998: 41). It complementarities and embodiment of demonstrates that the legislated delivery masculine and feminine energies. If the of ‘justice’ further ensnares Aboriginal common law could truly see Aboriginal people in colonising processes despite Law, it would understand that there declaring adherence to Aboriginal cannot be just Men’s Law, because how cultural values. can there be Men’s Law without Women’s Law? An illustration of the subtleties of this ‘recognition’ monologue, re-inscribing By claiming the common law is a vehicle and appropriating Aboriginal Law, is for ‘reversing conquest’, Bird-Rose (1996: evident in the Bird-Rose article ‘Land 6) assumes it has neutrality, both of rights and deep-colonising: the erasure agenda and historical culpability. She of women’ (1996). Bird-Rose’s central mistakes ‘recognition’ for the project of argument is that: liberalisation. ‘Granting’ land within the framework constraints of common law Land claim legislation … on the one enmeshes Aboriginal men and women hand reverses conquest by returning in a value process that undermines the land to indigenous people. On the Laws of Land custodianship. other hand, the marginalisation of women … perpetuates the Unfortunately Bird-Rose reinforces that colonising practices of conquest and appropriation … Deep which she tries to dismantle by granting colonising is … conquest embedded legitimacy to common law processes. By within institutions and practices claiming that ‘institutions and practices’ which are aimed toward reversing attempt to ‘reverse the effects of the effects of colonisation (1996: 6; colonisation’, Bird-Rose reiterates emphasis added). liberalism’s claim of equality and remedy under all-encompassing white Bird-Rose argues that land claims are law. ‘Deep colonising’ is the biased toward Aboriginal men, due to perpetuation of the idea that we can the patriarchal nature of common law find remedy to colonisation even as the and court processes, and that within common law co-opts, appropriates and these processes are embedded the con-ceptualises our Law—while claiming erasure of Aboriginal women (1996: 7). otherwise (Albert 1999: 73; Murphy 2000: But Bird-Rose is mistaken in her belief that 6). land claim legislation, in this case the Land Rights Act, returns land to Recognition—Jurisprudence Aboriginal people. As demonstrated, land rights legislation perpetuates colonising practice because it comes The acquisition of territory by a sovereign state for the first time is an from a liberal, democratic institution. The act of state which cannot be legislation cannot reverse these challenged, controlled or interfered practices because its foundation is set with by the courts of that state within colonising values. Therefore , (Justice Gibbs, cited in Mabo v Aboriginal women are negated and Queensland [No 2] 1992: [31]) . their secret/sacred business/Law is not recognised because the land grant The Mabo decision is a further example process does not have its origin or of the liberalising effect of common law, content in Aboriginal Law. Simply put, this time through the form of
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jurisprudence incorporating Aboriginal the process Aboriginal Law’s context, its people into common law jurisdiction. application and parameters and its The lie of Mabo is that it proclaimed ontology. This negates and ignores that ‘recognition’ of rights to Land by the which gives content and form, authority common law. 6 In reality, it was a and power to Aboriginal Law: the Land declaration of an act of state and a and its People. This is the assimilatory reiteration of common law supremacy, practice of the common law: to not an abandonment of terra nullius , or appropriate Aboriginal Law within it’s ‘recognition’ of ‘native title’, itself a ‘jurisdiction’. This appropriation is done in white term (Watson 1998: 41). the name of ‘equality’, so that Aboriginal people may have ‘land [T]his court is not free to adopt rules tenure’. However, our ‘land tenure’ is that accord with contemporary not the same. Liberal principle demands notions of justice ... if their adoption us all to be the same before the law and would fracture the skeleton of therefore ‘served’ by this one law, the principle which gives the body of our common law. It is Murphy’s (1999: 12; law its shape and internal consistency … Although this court is 2000: 6) ‘all Australian context’: the law free to depart from English fails to see ‘Aboriginal people as precedent … it cannot do so where Aboriginal people’. the departure would fracture what I have called the skeleton of principle According to Watson (1998: 29), we and (Mabo v Queensland [No 2] (1992), our Law are threatened by the muldarbi , in Bartlett 1993: 18-19). which in the language of her grandmothers, is a demon spirit of In the ‘courts of the conqueror’ (Strelein dominance and power that rapes and 2000: 1) the common law is based in murders ‘law, land and people’. It is the notions of terra nullius that justify coloniser and his values that threaten dispossession and legitimise its existence the very existence of the Mother by and claims of sovereignty. The common destroying the ability of the people to law’s ‘skeletal foundation’ is an ongoing practice their Law and therefore act of dispossession of Land, Law and counter the muldarbi’s impact. Watson culture. While ‘recognising’ that the sees the muldarbi in its positioning of continent belonged to Aboriginal Aboriginal people as inferior, lawless and people, the common law has no deviant—in case law, statute book and ‘shape’ or ‘consistency’ without the by-law, via institutions such as schools, terra nullius principle: extinguishment is its the judiciary, police and government only goal (Bartlett 1993: xviii): departments. The muldarbi has forgotten its own law of care, love and Native title is subject to responsibility to the Mother and when extinguishment … without the we engage with, or leave our Aboriginal consent of the Aboriginal people or the payment of compensation … [it] centre or Law, we: is a fundamental aspect of the compromise of the Aboriginal participate in a process that works to interest … to give paramountcy and erase or extinguish who we are … validity to the interests of the settler and lead[s] us along a path to society (Bartlett 1993: xx). become one of them. A path we know leads to the death of all things In ‘recognising’ Aboriginal Law, the (Watson 1998: 39). common law concept of ‘native title’ enunciated in the Mabo decision makes Land ‘rights’ Acts and ‘native title’ Acts Aboriginal Law its business, re-defining in and their amendments, centre the
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discourse in that of the muldarbi : Land Aboriginal Law, within common law as property, Land as economic entity. As jurisdiction. However all share the same Watson (1998: 39) says, the: ‘terms of reference’: the need for uniformity of laws between states; the construction of Native Title by the need to ensure basic human rights; the Australian state is a muldarbi , it is a problematic application of the criminal smokescreen that has taken us away justice system to Aboriginal people; ‘the from the important business of taking need to ensure equitable, humane and care of country. fair treatment under the criminal justice
system to all members of the Australian Its narrative is furthered by Aboriginal community’ and, in later documents, engagement and acquiescence to its (such as the Northern Territory’s Law ontology and value system. Murphy Reform Committee’s Background Paper (2000: 26) describes this as the ‘discourse 4 (2003)), international law. of authenticity’. When ‘Aboriginal leadership’ negotiated the Native Title Although extensive, ‘comprehensive Act , they did Law business the muldarbi multifaceted [studies] proposing way without the Land custodians changes to laws, policies, programs and (Watson 1998). This granted authenticity processes in many policy areas’ (Hands to liberal common law ‘business’ while 2006: 12), they are fundamentally undermining the way we do ours. Our flawed . Following the discussion above, subsequent support of the Mabo it is clear that these liberal, democratic decision and the Native Title Act as a terms of reference assimilate Aboriginal way to ‘regain’ our lands was the Law because of their frameworks, legitimising of our extinguishment. 7 We context and ontology. Indeed, all these will always be co-opted when we reports (and the tax dollars they practise ‘pragmatic expediency’: when represent) use liberal terms of reference we make choices based in the value in their consideration of Aboriginal Law, system of the coloniser because there thereby removing Aboriginal context; are no other ‘Aboriginal choices’ valued they aim only to take ‘customary law or offered (Murphy 2000: 39). How else into ‘account’ (Clark 2002: 9) or to could this transported law ever attain ‘recognise’ Aboriginal people’s ‘views, jurisdiction over the ‘very law of creation aspirations and welfare’ (; Blagg et al … and our relationship to it’ (Watson 2002: 13), and thus assume the 1998: 41)? epistemological legitimacy of the common law in the decision making The ‘Terms of Reference’ of process. As Murphy (2000: 12) explains: Recognition Current evaluation and problem The Australian Law Reform Commission’s identification practices consider Australian political culture an report, The Recognition of Aboriginal irrelevant influence in the methods Customary Laws (1986), the Northern used to identify problems, propose Territory Law Reform Committee’s solutions and evaluate policy International Law, Human Rights and outcomes in Aboriginal Affairs. Aboriginal Customary Law: Background Paper 4 (2003) and the Law Reform If the common law , not Aboriginal Law, Commission of Western Australia’s is the cause of poor life/health Aboriginal Customary Laws: Discussion outcomes, the breakdown of Aboriginal Paper (2005), are reports that attempted communities, high incarceration rates to address the ‘recognition’ of etc, how will incorporation, and
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therefore enmeshment, of Aboriginal ultimately, hegemonic control (Harris Law bring solution? 1996: 119, 121):
Non-Recognition It is the legal processes, moreover, that shape the testimony of the ‘experts’ to produce a narrative, If we examine the Hindmarsh Island which is validated by the courts as affair, it demonstrates that the common ‘true’ (Harris 1996: 121). law also practices non-recognition . The principles of psychological terra nullius, Aboriginal women who were paid to shown above to operate in the Land support the bridge development were Rights Act and the Mabo decision, are portrayed by the white media as the also evident in this much-publicised ‘genuine’ Ngarrindjeri, because they tragedy. Non-indigenous authority, contradicted those women who were lawyers and anthropologists ran the entitled under Aboriginal Law to speak case, while Aboriginal people were for Country, and who opposed the obliged to prove their current and development (Harris 1996: 126–7). Media ongoing links to Land, and were obliged opinion ‘recognised’ these women as to do so via common law concepts that ‘genuine’ because ‘those who have violated Aboriginal Law (Harris 1996: been assimilated to white values and 119). However, Harris (1996) argues that standards of behaviour … are also there are deeper narratives embedded worthy of being treated as “equals”’ in the Hindmarsh Island affair; factors (Harris 1996: 127). These women were already mentioned in this article. These expedient to ‘the discourse of are: ‘Aboriginalism’, the way the authenticity’ (Murphy 2000: 26). They majority culture has constructed and upheld values and beliefs that were not known us; the assimilation and Aboriginal, and undermined the validity incorporation of Aboriginal Law into of Women’s Law. liberal discourse, particularly Women’s Business of a secret/sacred nature; and In the Hindmarsh Island case, we can the erasure and exclusion of Aboriginal see liberal democracy’s desire for Law due to it being outside common ‘popularity’ through creating ‘for the law conceptualisation, and political mainstream an illusion that there is expediency. general well being in the lands of the colonised, all is equal and fair’ (Watson The treatment of the Ngarrindjeri 1998: 41). Four inquiries, a royal women … is illustrative of the manner commission and a report came out of in which a narrative of community the Hindmarsh Island case ( Indigenous and society seeks either to Law Bulletin , 1999: 1). Liberal democratic incorporate Aboriginal people within values can always be marshalled in the the framework of Australian society or to deny their existence form of an inquiry or royal commission to completely (Harris 1996: 118). exemplify neutrality and the ability of the common law to rectify its ‘errors’, the As Harris points out, Aboriginal Women’s ‘essentially just nature’ ‘of the state legal Law was taken out of context. Due to structures and practices’ (Burton & racist beliefs, Ngarrindjeri Women’s Carlen 1979, in Harris 1996: 209). This Business to protect Kumarangk was ‘reiterative practice’ bolsters the ‘transformed’ by cultural heritage legitimacy of the common law by re- legislation, lawyers, ‘experts’ and the inscribing and re-fortifying its media, into discourses of the veracity monologue, and as in the Hindmarsh and disclosure of knowledge, ‘truth’ and Island affair , undermines the veracity
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and jurisdiction of Aboriginal Law. It reference of inquiries into the invalidates and vilifies Aboriginal people ‘recognition’ of Aboriginal Law, and the while claiming that everything is being Hindmarsh Island affair, although the done in the name of justice—yet justice latter exemplifies non-recognition rather is not being done. than recognition by the common law. What then is the difference between The ‘Gifting’ Of Justice and Equality recognition and non-recognition by the common law if Aboriginal Law is taken out of context, liberalised and Derrida’s socio-ethical treatment of justice, law, hospitality and appropriated, by both ? How can community suggests that the Aboriginal people/culture/land be majority bestows a gift (ostensible ‘recognised’ if it is liberal, democratic socio-political empowerment); principles that discern what form however, the ruse of this gift is that recognition will take? The maintenance the giver affirms an economy of of the common law’s jurisdiction narcissism and reifies the hegemony validates the ongoing colonising project and power of the majority (Arrigo & of dispossession and genocide, thereby Williams 2000: 321). undermining Aboriginal Law. The
discourse that underscores these Rights discourse positions Aboriginal projects is a monologue, ‘predicated on people as passive recipients of the ‘gifts’ assumptions and fictions of an of equality and democracy ‘operating Aboriginal subject’ (Murphy 2000: 6) and through processes that reduce the right our absorption and incorporation into to a right that is bestowed to Aboriginal liberal/common law frameworks— people’ (Murphy 2000: 31). The ‘rights’ institutional and internal assimilation. that were destroyed/taken are not the When we look to white law to provide ‘rights’ that we receive now. We are values, justice and our understanding of given ‘empowerment’, we are given our own Law, our Law is taken ‘out of ‘choices’; we are given the ‘gift’ of an context’ because it is ‘judged’ against apology. But these are only the gifts that notions of liberalism and democracy. they want for us, in their ‘currency’ and only what they are prepared to give There is a climate of racism, blinkered (Murphy 2000: 39). These ‘gifts’ are vision and incessant monologue that legislated title grants in land, ‘equality’, tries to make us strangers in our own ‘recognition’ or validity, bestowed on land. There can be no freedom, no Aboriginal people to demonstrate justice or equality if these values are common law/liberalism’s power and to terms of imposition that do not bear the keep us indebted. Whatever the gifts weight of historical truth. However, what proffered, however, they do not is needed is not just to be ‘included’ in challenge white, liberal ideas or ‘your’ world, but, simply, to be frameworks of power, cannot interrupt unimpeded in the expression of ours. their prosperity—the prosperity that was Until then, liberalism, the common law secured and obtained by our and the state will remain tools of dispossession. And so they cease to be oppression. gifts and are instead, a Trojan horse— they are a demonstration and re- inscription of hegemonic power.
As I have shown, there is remarkable consistency between the Land Rights Act, the Mabo decision, the terms of
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Author Note References
Naomi Fisher is an Aboriginal woman Akers, R. 2000. Criminological Theories: looking for her mob. She lives on Turrbal Introduction, Evaluation and Country and is a recent graduate of Application , California: Roxbury Griffith University with a Bachelor of Arts Publishing Company. in Indigenous Studies and Australian Alfred, T. 1999. Peace Power and History. She is an activist who works part- Righteousness: An Indigenous time as a research assistant, Manifesto , Ontario: Oxford University endeavouring all the while, to raise a 9 Press. year old. She can be contacted at Arrigo, B. & Williams C. 2000. ‘The [email protected] . (im)possibility of democratic justice and the “gift” of the majority: on Acknowledgments Derrida, deconstruction and the search for equality’, Journal of Contemporary Criminal Justice , 16 I would like to acknowledge and pay (3), 321-43. respect to the Traditional Owners of Atkinson, J. 1996. ‘A nation is not Meeanjin, the Turrbal people, conquered’, Aboriginal Law Bulletin , particularly Maroochy Barambah and 3(80), 4-9. Connie Isaacs, on whose ancestral Australian Law Reform Commission. homelands I live. 1986. The Recognition of Aboriginal
Customary Thanks to Dr Jennifer Nielsen for Laws ,
Brisbane: Butterworths. This essay is dedicated to several Bird-Rose, D. 1996. ‘Land rights and people: Friend, part-time genius and deep colonising: the erasure of Teacher, Lyndon Murphy . This paper is women’, Aboriginal Law Bulletin , 3 derived from his teaching of an (85), 6-13. “Aboriginal political critique”: a theory, Blagg, H., Morgan, N. & Yuva Kama taught at Griffith University that is Harathunian, C. 2002. ‘Aboriginal informed by /grounded in Aboriginal customary law in Western Australia’, methodology and ontolological Reform , 80, 11-14 & 70. perspective. “Give someone a fish, they Broadhurst, R. 2002. Crime and eat for a day; give them the ability to Indigenous People in Graycar A & fish, they eat for a lifetime”. Thank you. Grabosky P. (eds). The Cambridge My Mum, Therese for being there, Handbook of Australian Criminology , always, for me and Jack. Gitana Proietti- Cambridge: Cambridge University Scifoni for her proof-reading, critical Buzzacott, K. 2001. Personal ability and solid friendship—yarns and conversation with author, August, deadly cups of tea. My Dad, Bob , just for Aboriginal Tent Embassy, Canberra. being who he is. All the Elders who give Clark, G. 2002. ‘Not just payback: so freely of their time, love and Indigenous customary law’, Reform , knowledge. Those Old Men, the 80, 5-10 & 69-70. Grandfathers, who walk with and Cunneen, C. & Libesman, T. 1995. protect/guide me and who I think have Indigenous People and the Law in more to do with my writing than I realise.
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Australia , North Ryde NSW: ——. 2000. Talkin’ Up to the White Butterworths. Woman: Indigenous Women and Goldberg, D. 1993. Racist Culture: Feminism , St Lucia, Queensland: Philosophy and the Politics of University of Queensland Press. Meaning, Oxford: Blackwell —— 2004. Whiteness Epistemology and Publishing. Indigenous Representation in A. Haebich, A. 1988. For Their Own Good: Moreton-Robinson (ed) Whitening Aborigines and Government in the Race Essays in Social and Cultural South-West of Western Australia Criticism , Canberra: Aboriginal 1900-1940 , Nedlands, WA: University Studies Press. of Western Australia Press. Murphy, L. 1999. Restorative Justice: Is it —— 2000. Broken Circles: Fragmenting a New Strategy for Old Ideas ?, Indigenous Families 1800-2000, unpublished paper. Fremantle, WA: Fremantle Arts —— 2000. Who’s Afraid of the Dark?: Centre Press. Australia’s Administration in Hands, T. L. 2006. ‘Teaching an old dog Aboriginal Affairs , Dissertation to the new tricks: recognition of Aboriginal Centre for Public Administration, customary law in Western Australia’, University of Queensland, Brisbane: Indigenous Law Bulletin , 6(17), 12-15. Centre for Public Administration, HarrisM. 1996. ‘The narrative of law in the University of Queensland. Hindmarsh Island Royal Commission’, Neate, G. 1989. Aboriginal Land Rights Law in Context , 14(2), 115-39. Law in the Northern Territory, Volume Indigenous Law Bulletin 1999, ‘Unfinished 1, NSW: Alternative Publishing Co-op business: a history of flawed decision- Ltd. making’, 95, 4(25), available at Northern Territory Law Reform
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Watson, I. 1998. ‘Power of the Muldarbi, the road to its demise’, Australian the trauma for our people, burdens society Feminist Law Journal , 11, 29-45. as a whole and prevents its healing. 3 —— 2000. ‘There is no possibility of rights I acknowledge here that my understanding without law: so until then, don’t of Aboriginal Law barely scratches its thumb print or sign anything!’ surface: there is much I have not been taught about this multi-dimensional, non- Indigenous Law Bulletin , 5(1), 7, linear and spiritually all encompassing,
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
IT’S CAPTAIN COOK ALL OVER AGAIN …
EDWINA HOWELL
It’s Captain Cook All Over Again pieces people would leave on their front laws, and had loved it since she was a kid. ‘Hey unc! Meet my friend here. Unc,
Andy, this is Liz.’ Liz turns back to Danny, here on the
corner outside Safeway on Smith St. ‘Good to meet ya Liz.’
‘So how’ve you been bub? Sorry about ‘You too’, she shakes his hand as he pulls that before hey, it’s just this young one his ciggy out of his mouth, with a grin. she’s come from out of town and she’s
causing some trouble. Yeah, sorry, bub. ‘You know who her old man is eh?’ So yeah, how’ve you been, eh?’
Danny’s pointing across the road at the ‘Alright … yeah, pretty good really. Just cake shop with graffiti on its wall. The doing my thing, bit of recording and empire of Yarra needs some common stuff.’ sense.
‘You found a job yet?’ ‘That one, eh, Unc. But no problem’, he’s chuckling ‘they don’t see eye to eye, ‘Na … kind of thinking I’ll just wait till I you know’. finish this session and then I’ll start looking
again.’ God damn it Danny, I’ve asked you not to do that, embarrassed, and she’s lost ‘You’re not back with that lawyer mob?’ the conversation to another one now.
Amy and Jess have come down from ‘Na … na … still not sure about all that Dubbo and they’re hassling Andy about stuff hey. Probably go back to where his son Bill could be. Bill’s got the waitressing or the pub. Enough about tickets to Tjimba and the Yung Warriors me though, hey what happened with and they’ve still got to make it to see your case?’ Nan before they leave.
‘You mean the one with them She’d met Danny out here on the corner undercover jungkai? You know what one day going for a coffee with her they said hey bub, they said ‘You stinkin’ biological father. They’d liked each Abo’. I’ve got witnesses. Witnesses who other and just started hanging out a bit, can back me up that it was ‘Abo’ you you know as friends do. The second time know, not ‘ho-bo’.’ they’d met she’d jumped in the back of the car with him and his mate and taken ‘Yeah that one. With the Legal Service off on a mission down to Toorak. It was down here?’ hard rubbish day and they were parousin’ for bunk beds for a couple of ‘Na, I went to the other one over at kids in the flats. She loved that kind of Fitzroy, hey. The coppers said they’d thing, scouring through the bits and
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
drop three charges if I pleaded guilty to She watches his emotion as he recreates two.’ the scene.
‘What! But you’re not.’ ‘I’ll check out the program. Hey, good on ya for telling them where to stick it.’ ‘Na …’ ‘So your old man over there, he’s been ‘Hey, Danny, is it true that they get stirring up trouble again.’ people to plead guilty at the other one ‘cos it’s easier?’ ‘Yeah, with that graffiti and he said something about an article in the Age. ‘Yeah bub … But they’re a good mob … Hey Danny?’ down at the Fitzroy one.’ ‘Yeah bub?’ She takes a swig of her coffee, and starts rolling up a cigarette. ‘You know that it’s not fair to introduce me like that. It’s not because of all this ‘So, tell me what you’ve been up to stuff, it’s just that it’s kinda disrespectful bub?’ to the parents I grew up with. It just grates on me, ok?’ ‘Ah just the same old stuff, you know, bit of guitar, bit of recording. Ah … and I’ve ‘Ah bub, it gives ‘em a bit of a rise, that’s joined this choir which is awesome.’ all, eh?’
‘You seen that show on the 7.30 Report ‘Yeah, I know, but …’ last week?’ ‘He really does care, you know. He just ‘Na. You told me about it on the phone comes at things from a weird kind of though. Should be able to get it off the angle.’ net hey?’ ‘Sure does.’ ‘You know what they were doing bub? They were standing just over here, right, ‘He just reckons Yarra and the State with their big film cameras and government will never cough up the everything, outside Safeway there and cash if someone doesn’t complain were sticking it right on us. It’s Captain loudly enough about the past. And Cook all over again. Sticking their that’s what he thinks he’s doing, cameras at us and not even asking us although I know he can be full on. You what we think. So I went over there eh, know he’s been arguing for this and went right up to the woman community centre down here for years? speaking and told them to stop bloody As a base with the right equipment for filming or I’d shove the camera in her people to record their stories. He’s had face. If they wanted a story they could his eye on Collingwood Tech for ages.’ come over and ask. Yeah, oh sorry, bub, so yeah they did, come over and that. ‘Where the justice centre is?’ And we said our bit you know about the drinking here and the bus and the ‘Yeah, down there. But that was before council and all.’ it was turned into a court house.’
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
‘Sure bub. I know what ya old man’s like. I’ll ‘ave a talk with him, eh … Bub, have I You can’t always get what you want played you this one?’ You can’t always get what you want You can’t always get what you want He reaches for his mandolin case and But if you try sometimes well you might pulls the strap over his head, starting the find rhythm, in his body and out across the You get what you need strings of his voice. (lyrics from ‘You Can’t Always Get What You Want’ The Rolling Stones ) ‘You’ve gotta listen to the words, eh bub, not many fellas really listen you know.’
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
We’d been up round Darwin for a The Store at Pine Creek couple of months by that time, and were finally heading out south, it was a mid point, perhaps a turning point in two Betty’s son, Jimmy, had come up the ways. On our way out of Pine Creek morning after we’d stayed at their joint we’d parked on the side of the road so and told us about the Buranga festival, you could peel the bark from a Banyan east of here towards the Gulf. Jimmy tree to make string. I was sitting in the was playing guitar in a band that night drivers seat and a woman came up, she and wondered if we had the space to was talking to me and she wanted some give him a ride. In the end we went but money or something and she started we never saw Jimmy again. I remember stroking my hair, and then my face. But it how he’d given his last cigarette to you, wasn’t the stroking of a mothering how his laughter bolted out from touch. I could feel her bitterness, her beneath his face burnt by oil from a car grief running its fingers across my cheeks, engine he was fixing when he was her anger at the ease of my open smile, young, and how, on our way out of my traveling by, my moving through and Buranga, about 200kms south east, I’d leaving, leaving without having listened held your head as we lay amongst the to her. But I couldn’t really understand bloated dead cows in a gravel pit on what it was that she wanted to say, but the side of the road, your stomach was I ever really listening? cramming with blades. I’d never used the radio phone before and I was shit And us? The ‘turning point’? I had scared by who I was and where we decided to put a flag in the sand, a were and the smell of dead ringing in marker of time, September. I would be my ears. returning home with or without you in
September. We’d met Betty, and her partner Martin, out the front of the general store in Pine …. Creek, and we stayed up at their camp for just one night after we’d bought I’m diving for lily bulbs and Brett is sitting them some beer because, in Pine Creek on the bank, having a stubby in the in 2003 only whites could get beer afternoon light with Martin, ‘Show you before midday. fishing tomorrow, hey? Take you out,
good country my country’. We were a good hour and a half south of Katherine and it was another nine Betty points, ‘Over there. Get ‘em that hours or so to Tennant Creek so this was big one’ and I dive into the tangled web it for groceries and beer for the next little of lily roots, trying to get to the bottom while. A bench in the centre of the dusty but I’m frightened of getting stuck. I general store presented us with the come up gasping for air, and Betty’s possibilities: brown skin bananas $8.99kg, laughing. Down again, even more tomatoes caved and wrinkly $9.49kg, determined, grabbing a hold of the onion and potatoes $5.50kg and a slippery stems, pulling myself to the wilted lettuce for $4.99kg. So we’d bottom. I’m diving for the root as Betty picked up tinned beans, canned corn, told me to. This is the part that gives the peas and some more rice. A local brightest colour for dying string, but I’m looking fella, wearing an akubra, bought out of breath again and struggling up four pies and a two litre bottle of coke. through the thick brown-green webs of
lily to breach at the surface, stripping
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
the hair back from across my face. Betty of the road. It’s time, Amen, to let our is almost rolling on the grass at the sight, black brother’s and sister’s know that Armageddon is near. ‘Hey sister, I been getting ‘em this one.’ We need to search for our brothers and …. sisters out bush and gather them in. We need to let them know, Amen, that the Brett’s pissed off at me for bringing him signs are here and they are welcomed here. Betty was so excited about having by God to join us on our journey to us as guests but you can tell that she heaven. Praise the Lord. doesn’t come much either. In this place you’re either a Christian or you drink – Brett can’t stand it. He gets up and black and white, like that. walks off. And I’m left here, not wanting to be here anymore either, waiting for The tin roof is shifting with the falling of the band, movement enough for me to the coolness of night. And the singing is make a subtle escape. gorgeous. It’s in language this one. And this is what Betty wanted us to hear. It’s Later Martin tells us how the church almost all women, and young kids, and group comes up from the town once then the preacher, his assistant, and every month to put on the show. He’d three teenage boys setting up the gear gone to live down there for a bit but for their band. I feel Brett shifting ‘they don’t listen to Aboriginal way’ awkwardly next to me on the wooden he’d said. So he came back up here bench that we’re sharing up the back in where it’s harder to stay off the grog, the dim light and the preacher’s where it’s harder to live. We’ve been assistant takes up the microphone. The talking for hours. It must be near sound is hard against the tin walls as the midnight and he needs to be up to go end of the wire runs on the concrete out with the CDEP crew in the morning floor, but this isn’t why I feel Brett’s body to fix the fences that keep the ferals out. become sharp. The young preacher is But he’ll be back to take us fishing in the pacing as he speaks, the rhythm and afternoon he promises. I pull out our tone builds to storms of fervor and then swag from out the back of the truck and lulls in the calm between waves: lay it down by the softening red coals. I’m in love with this amphitheater of stars The time has come my brother’s and as I hold Brett’s body close and fall into sister’s. The signs are here. Praise the sleep. lord. You see dead animals on the side
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
Port Hedland ‘Do you want to go back?’ Brett asks for the second time but his voice has raised in pitch and volume, just a little, enough They’d been traveling north of Port for her to hear his thoughts. Yes, I think I Hedland for hours, but she’s been do. But she sits there eyes still her eyes somewhere else out the window as the out the window. ‘I really don’t mind you red dirt and grey-green scrub washes know. You want to don’t you?’ her by. On the seat with its grease marks, Sometimes she finds it so hard to say sweat marks, was the list of names, what she wants if she thinks it’s not what twenty-one contacts and their ID he wants to hear, but she turns to him, numbers. You had to have both, a full ‘Yes I think I do’. She watches his breath name and their immigration detention deepen, his bare chest opening the skin number to get in. She’d been given the across his ribs. He pulls the car to the side list through a web of people - from of the road, turns to her, knows her, and Melbourne, to Sydney, to Port Hedland swings the car around. the list had been siphoned to end up in her inbox just a week ago. …
She’d called a local contact number Three days in a town marked by the given to her from a Refugee and arch of salt mountains at its entrance. Immigration Legal Service in Melbourne. Each day they go to the pool. In the It was the local minister. city, two years later she is taken here to
her memories through the footage of Hello. I was wondering if I could speak the Freedom Rides protesting at the with Patricia, please? apartheid in rural towns in northern New Can I ask whose calling? South Wales. The scenes of the protests
at Moree pools in the 1960s remind her Sorry, I’m Liz. I’ve been trying to contact of the local Aboriginal kids who came Patricia about visiting the detention back each day to beat her and Brett at centre. bombing competitions and underwater
races and how the time passed so She heard his footsteps down a hallway, quickly with their games. an open wire door, and a softer paced step returns to the phone. They speak … and Patricia explained:
‘Sit down please’, the lady in a white You might have to wait a bit. This can be and blue security guard suit says from a very difficult thing for those inside. Just behind the glass window of the seeing someone from outside can bring reception desk. Finally they are here up a lot of pain. Some days they’ll be sitting, waiting, nervously on squat OK, some days they just can’t face it. Do padded chairs in the reception of the you understand? detention centre. She feels the sweat
drip down her side body and the air Yes, of course. Thank you. I really don’t conditioning makes her queasy. There’s want to make it harder for any one. I just a glass cabinet in front of them that they thought if there was a chance to let move to during the hours that they wait, people know back in the city what it with a woven boat of dried grass, a was really like, well you know, that it papier-mâché family propped up in the could maybe make some kind of corner and an ocean of blue and green difference. beads spilling towards them. A sand
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HOWELL: IT’S CAPTAIN COOK ALL OVER AGAIN …
mosaic bends the edges of a glass Back in Melbourne, two years later, Liz bottle. And they wait. reads Azim’s files. She’s thought about marrying him, yes just for the visa. To her She’s worried they’re intruding, that she it makes more sense to get married for a got Brett to turn the car around and life than for ‘love’. They said you were spend three days in this shit-hole of a lying because your scar is straight and town for nothing, that the men they’ve being beaten by police doesn’t make come to see can’t even get out of bed straight scars, they know this. For the to see them, and that she’s making shifting pages of the Immigration Review things so uncomfortable just because Tribunal, this is fact. They beat you in a she thinks it’s important to know. She cell until you became unconscious, remembers in a place of river red gums, falling onto the side of a table and you washing charcoal and paint from the now have a sharp line that speaks your children’s clothes, that this process of story across your back. opening can hurt and it carries the responsibility of return. For once you’ve been given the gift of a story, someone’s faith in you, you must return. Author Note After two hours the manager comes with his boots and calves the size of a decent Edwina Howell is currently a PhD thigh. Stand over tactics - they don’t candidate in the School of Political and understand why. Social Inquiry at Monash University writing a thesis on the life and activist In the court yard, the visitors’ area, they methods of Gary Foley. She has stumble past stories, through stories, presented guest lectures in the Centre tentative with their words, careful not to for Australian Indigenous Studies at prick the skin of deeper suffering. Remeir Monash University and a seminar in the and Azim had learnt English so they School of Anthropology on how could understand what was being said alternative epistemologies are on the news, how likely it was that contested at the McArthur River Mine. Howard could be knocked out in the Last year she co-facilitated the subject November election. Their lives 'Hearing the Country' and tutored in depended on it. You could see it in the CAIS in the subject 'Culture, Power, shift of their eyes as they spoke - the way Difference: Indigeneity and Australian a person disappears through their pupils Identity' and has also taught at when hope begins to disappear. But Melbourne University in the Department together they do share some laughter of Education in the subject 'Indigenous and a kick of a hacky sack around a Australian History'. She is also an officer dusty dirt floor. of the Supreme Court of Victoria. Edwina’s contact email is: Later that afternoon they find out how [email protected] . Remeir and Azim had been eager to meet them early that morning, but they had been told their visitors had failed to arrive.
…
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ACRAWSA e-journal, Vol. 4 , No. 2, 2008
WITNESSING WHITENESS: LAW AND NARRATIVE KNOWLEDGE
TRISH LUKER
Abstract characterised by strong emotion and there was a lot of crying. In his speech, In this article, I interrogate the reception Rudd re-told the story he had heard of testimonial evidence given by Lorna from Lorna Nanna Nungala Fejo, a Cubillo in the trial of Cubillo v member of the Stolen Generations Commonwealth (2000) (‘ Cubillo ’), the whom he had met a few days earlier. landmark action taken by members of Rudd acknowledged that Nanna Fejo’s the Stolen Generations. Drawing on was just one story: ‘There are thousands, Lyotard’s account of the distinction tens of thousands of … stories of forced between narrative knowledge and separation of Aboriginal and Torres Strait scientific knowledge, I argue that while Islander children from their mums and law makes its claim to legitimacy dads over the better part of a century’. through demonstrable proof, it must Rudd said that these stories ‘cry out to ultimately seek an appeal to narrative be heard’, but that ‘[i]nstead, from the forms of knowledge. The relationship nation’s parliament there has been a between law and narrative is key to a stony and stubborn and deafening critical reading of the Cubillo decision , silence for more than a decade’. which provides an important site for an analysis of the function of whiteness in Lorna Cubillo was there in Parliament the treatment of evidence in Anglo- House, finally receiving the Australian law. I argue that through acknowledgement that she and reliance on legal positivism as the Kwementyay 1 Gunner had sought from method of judicial interpretation, the the Commonwealth Government less decision privileges forms of ‘scientific’ than a decade earlier. 2 Cubillo and knowledge which most readily support Gunner had told their stories in the dominant paradigms of historical truth. Federal Court in the landmark case At the same time, the significance of taken by members of the Stolen ‘narrative’ knowledge to the arguments Generations. 3 In the trial, Justice presented in the case, particularly that O’Loughlin bore witness to Cubillo’s which does not support notions of white traumatic testimonial account of having cultural memory, is discredited. been stolen from her family and community when she was only six years Introduction old. However, when O’Loughlin heard Cubillo’s account of her forced removal When the newly-elected Prime Minister, and incarceration, he did not declare Kevin Rudd, delivered the National that it was crying out to be heard. Apology to the Stolen Generations on 13 Rather, O’Loughlin found Cubillo’s story February 2008 (Commonwealth of at times to be irrational, and described Australia 2008), thousands of people some of her testimony to be the product were present at Parliament House and of ‘subconscious reconstruction’, having gathered across the country to bear escalated into ‘vitriol’ (Cubillo [593]). He witness to the event. Members of the determined that she had not met the Stolen Generations and their families burden of proof. had travelled long distances to be in Canberra for the occasion. It was a day
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LUKER: WITNESSING WHITENESS
In his decision, Justice O’Loughlin found In this article, I interrogate the reception that there was neither enough evidence of key sites of testimonial evidence given to support a finding of a general policy by Lorna Cubillo and other witnesses in of removal of ‘part-Aboriginal’ children, the trial, focussing on the role of race stating that ‘if, contrary to that finding, and gender in the construction of there was such a policy, the evidence in knowledge. I draw on Lyotard’s (1979) these proceedings would not justify a distinction between two forms of finding that it was ever implemented as knowledge, scientific knowledge and a matter of course in respect of these narrative knowledge, 5 arguing that the applicants’ ( Cubillo [1160]). Determining relationship between law and narrative that there was a prima facie case of is crucial to a critical reading of the trial wrongful imprisonment of Lorna Cubillo, and judgment. In particular, I will argue he nevertheless decided that the that Cubillo’s testimony reveals the Commonwealth was not liable because significance of whiteness to the the burden of proof had not been common knowledge she recounts, the satisfied, highlighting what he regarded truth of which she claims is verified by an as the incompleteness of the history and oral tradition. However, this truth is the lack of documentary evidence, effaced in the judgment, which I argue referring to it as a ‘huge void’ ( Cubillo reveals white race blindness within the [9]). law.
There is a substantial body of literature Legal positivism, the dominant concerning the use of narrative analysis jurisprudential discourse of Anglo- in legal theoretical scholarship, 4 but as Australian law, asserts that law is a Kennedy (2002: 70) points out, system of pre-existing rules and contemporary attention to narrative in conventions which are derived from the field of law and literature tends to observable facts and empirical focus on what she refers to as the ‘high sources—an autonomous phenomenon, culture’ end of appellate courts, at the exclusive of other areas of knowledge. expense of the ‘low culture’ end of trials, Fundamental to the perspective of legal where evidence is actually presented positivism is the belief that the social and assessed. In a trial, judicial validity of a law must be strictly assessment of the veracity of witnesses’ separated from questions of ethics and statements is performed on the basis of morality. Legal positivism also resists observance of their demeanour, knowledge affirmed affectively, manner of responding to questions, and relegating it to the sphere of the the perceived congruence and irrational and deceptive. However, credibility of accounts. Techniques of affectivity is a dominant feature of cross-examination are intended to elicit Stolen Generations narratives and the truthful, or most convincingly should not be readily dismissed. I infallible, account of events. The examine the reception of Cubillo’s significance of visual perception—that is, testimony concerning her loss of witnessing—is itself the basis on which language, focussing on the court’s the witness is most commonly accorded rejection of her evidence on the the authority to testify in the trial. grounds that it was irrational. Witnesses are expected to testify to what they have seen or heard and to be Knowing Law able to separate such observation from other forms of perception and sensation. The principles of evidence law operate
on the basis of a series of rules which are said to guide the trial judge when
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LUKER: WITNESSING WHITENESS making decisions as to the admissibility oral testimony, the preferred form for the of information presented by either party delivery of evidence in trials (1999: 90). to a dispute. Evidentiary rules, which courts have both discretionary and In law, truth is accessed through mandatory powers to apply, are largely language and evidence is seen as a formulated around the principles of way of mediating the relationship relevance and exclusion. One of the key between words and truth. In a common paradigms for the evaluation of law trial, it is oral testimony which evidence is narrative coherence where provides the primary basis on which truth an assessment is made on the basis of claims are verified. The assessment of the formulation of a story which best evidence and its claim to truth is based concords with the evidence presented. on notions of narrative coherence and Twining (1994: 71–4) points out that the rationality. Evidence which is most rationalist model underlying the legal readily regarded as veracious is that theory of evidence is characteristic of which is articulated by a sovereign post-Enlightenment Western thought, subject. Such a subject is seen to speak where truth is seen to stand in direct the truth, producing truth as an effect of relationship with reality and human discourse. Yet it is truth which is regarded subjects are able to acquire objective as the cause of the production of knowledge through processes of reason knowledge. If truth is produced in and empirical observation. Twining refers language, then it cannot pre-exist its to this as the rationalist tradition of own articulation; this substitution of evidence scholarship. Feminist effect for cause is therefore a metalepsis approaches to epistemology have (Spivak 1987: 204). revealed that the normative subject who is able to take this objective stance In legal proceedings, the veracity of is inscribed as masculine—‘the all- testimony is determined on the basis of perceiving, self-purposive subject of an assessment of the demeanour of Cartesian logic’, a subject posited ‘ a witnesses and the plausibility of their priori to the world, privileging sight as the narration. As feminist and critical race yardstick to measure practico-empirical theorists have argued, this assumes a claims to truth’ (Williams 1994: 165). normative model for the ideal testifying witness, namely the white, able-bodied, While it has long been recognised that heterosexual, middle-class man (eg. evidence law functions as an Thornton 1990: 1). However, there is no epistemology, and therefore as a site for universal standard for knowledge or theoretical investigation, it has received truth. Our understandings of truth are relatively little critical attention. 6 Like complex constructions emanating from other forms of post-Enlightenment our subjective experiences; they are Western knowledge, the legal inevitably contextual and are produced conceptualisation of evidence and in language. Nowhere is this more proof is based on an empiricist, scientific apparent than in the examination of model (Davies 2008: 127). In one of the testimony delivered in legal few deconstructive readings of the proceedings. epistemology of evidence, Haldar argues that proof is the performance of Interest in multidisciplinary studies of the the revelation of truth through ‘the testimonial form, in processes of perceptual capacity of sight’ (1991: witnessing and in the production of life 172). He points to the function of vision writing has largely been generated in not only to documentary evidence, but the wake of the Holocaust and other also to the assessment of the veracity of genocides, historical injustices,
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LUKER: WITNESSING WHITENESS colonialism and forced migrations. 7 In dominance of metanarratives, Australia, the recent production of and proposing a more fragmentary and interest in testimony studies, oral histories interconnected conceptualisation of and life writing has overwhelmingly been knowledge. propelled by the testimonial stories of members of the Stolen Generations. Law legitimises its claims to knowledge Overall, however, accounts of the through the use of evidentiary testimonial form have focussed on techniques which require propositions to textual representations and there has be susceptible to proof. In particular, in been minimal attention to the positivist jurisprudence, laws are derived production of oral testimony in the from facts and other observable courtroom. While in law, testimony is the phenomena. Within law, the principle of preferred form for the delivery of adversarialism, involving contestation evidence, I would argue that the between competing claims, is believed testimonial voice serves as a challenge to produce a verifiable ‘truth’. Rules to legal positivism, by virtue of its governing legal procedure are designed subjective character; in legal to ensure that truth will emerge at the proceedings, the tenor of the testimonial end of the day. Lyotard’s analysis of voice is highly constrained. claims to legitimacy highlights the correspondence between science and The Epistemology of Proof law and the interrelatedness of these discourses with power and knowledge in western discourse. In particular, he In his influential work, The Postmodern points to the ‘strict interlinkage between Condition , Lyotard uses the term the kind of language called science ‘modern’ to designate any science that and the kind called ethics and politics’, legitimises itself with reference to a pointing out that they both stem from metadiscourse, and seeks truth through the perspective of the Occident (1979: ‘an explicit appeal to some grand 8). narrative’ (1979: xxiii). Pointing out that
‘scientific knowledge does not represent Lyotard’s ‘Occidental perspective’ can the totality of knowledge’, Lyotard be interrogated as the site of whiteness, argues that ‘it has always existed in which, while universalising certain forms addition to, and in competition and of knowledge and truth, disguises the conflict with, another kind of racialised position from which it is knowledge’ (1979: 7) which he refers to produced. The invisibility of the as narrative knowledge. whiteness of dominant epistemologies
produced in post-Enlightenment thought Within Lyotard’s framework, law can be is effectively achieved through the seen as a form of scientific knowledge. racialisation of its object. As Moreton- As Davies (2008: 332) points out, Robinson elaborates, whiteness functions Lyotard’s central concern with the as an ‘ontological and epistemological legitimation of knowledge, with the a priori ’, constitutive of what can be question ‘who proves the proof?’, is known and who can know, ‘producing clearly a legal question because it the assumption of a racially neutral mind concerns the justificatory foundations for and an invisible detached white body’ knowledge and points to its inextricable (2004: 81). interconnection with power. Such issues are fundamental to postmodern While law, like science, makes its claims interrogations, which as Lyotard to legitimacy through demonstrable elaborates, can be characterised as proof, I would argue that it must providing a challenge to the
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LUKER: WITNESSING WHITENESS ultimately seek an appeal to narrative acceptable in legal discourse because forms of knowledge. Law is a discourse they conform to notions of pre-existent in which the world is presented in a truth. narrativised form, emerging from a desire for order and coherence During cross-examination, Cubillo was (Douzinas et al 1991: 107). Chronology is questioned in relation to her removal central to legal evaluation, as is from Banka Banka station to Seven Mile concordance between different Creek. This was the first of a number of witnesses’ accounts of the sequence of occasions on which Cubillo claimed she events. Adjudication specifically entails was removed from her family and the choice of one party’s story over community without warning or another, delivered by legal advocates permission. On this occasion, Cubillo using rhetorical strategies. One of the remembered that she was with her key paradigms for the evaluation of grandmother, who hid her when two evidence is narrative coherence where men approached. She said that the an assessment is made on the basis of men took her from the care of her the formulation of a story which best grandmother on a horse to Seven Mile concords with all of the evidence Creek. During cross-examination, Cubillo presented. In the discourse of law, there was asked detailed questions about the is the belief in the possibility of the appearance of the two men, reconstruction of the past through specifically in relation to their height and testimony and documents, as if these hair, and also about how she knew who somehow exist outside language and they were. I have reproduced a signification. detailed extract from the transcript of trial in order to demonstrate my Common Knowledge and Whiteness argument.
An analysis of the treatment of evidence Mrs Cubillo, I want to ask you some in the Cubillo trial highlights how law’s questions about what you say about regard for truth is seen to authorise its your removal from Banka Banka. claim to knowledge. One of the ways You've identified two people who you the desire for narrative coherence is say were involved in your removal, pursued in the trial is through well- Barney McGuinness and Bill Harney; is established techniques of cross- that right? --- That's right. examination, whereby a witness’ What did Bill Harney look like? --- He memory of events is ‘tested’. During the was a European man. Cubillo trial, the veracity of the applicants’ evidence was repeatedly Was he tall, was he short? --- He wasn't challenged on the basis of its tall. consistency. This involved intense cross- Sorry, he wasn't tall? --- He didn't examination in relation to the specific appear to be tall. details of witnesses’ memories of events which occurred up to 50 years ago— Would you say he was taller or shorter events which often bore little direct than I am? --- He was a medium sized relationship to the issues raised in the trial person. Now, I wasn't going to take a - and were not actually contested by the a tape and measure him. I'm just trying Commonwealth. Clearly, the purpose of to tell you my visions from my this questioning was to point to the childhood. possibility that the witnesses’ evidence I'm not asking you to tell me how many was unreliable; but it also highlights the inches? --- Well, you're asking me to --- way certain narratives are considered
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I'm just trying to get a sense of what removal? --- My grandmother told me the man looked like, Mrs Cubillo? --- He who those people were. was a European man. So she was the person who told you it What was his hair colour? --- As far as I was Harney and McGuinness? --- I know, he wore a hat. mean, she was the adult and I was the child. So you don't know what his hair colour is, is that what you're saying? --- He You got their names from your would be a normal Australian, but he grandmother? --- That's a common didn't have blonde hair. knowledge in the community. Did he have black hair, brown hair? --- So it's both your grandmother and Not black hair, probably in between. common knowledge? --- Everybody in the community knew who these In between what? --- Well, it wasn't people were. blonde and wasn’t black - in between. But there was nobody else present Is it what you've previously described apart from your grandmother and the as sandy hair? --- That's a possibility. two men who you've described as You didn't really get a good look at Mr Harney and McGuinness on the Harney's hair, is that really what you're occasion of your alleged removal from saying, because he wore this hat? --- I Banka Banka? --- Barney McGuinness would have had to be very close to was the only half-caste male, when he the person to really know what he was removed me and I saw him in Phillip - he was just a person who removed Creek, there was nobody else during me and I will just remember him as that time. such. Yes. I just want to be certain. This Did he have a moustache? --- He was incident you've described, when you a European man. and your grandmother were sitting down in the creek, there were no Do you remember whether he had a other members of your family with you moustache or not? --- I remember him at that time of your removal, were from the day he removed me. there? --- We were hiding out away Do I take it that that's a no, you don't from the main station but still within the remember whether he had a bounds. moustache or not? --- I didn't look at Yes. But when you say 'we were hiding his face; I just knew that he was a out', you're just talking about you and white man and that he drove around your grandmother, is that right? --- the community where I lived and I That's right. recognised the car. Yes. And your grandmother, you What do you say he was wearing on agree, died before you left Phillip the day he came to Banka Banka? --- Creek. So you've known for more than He wore the same clothes like 50 years that Mr McGuinness is the everybody else - trousers and shirt and man, you say, who was involved in a hat. your removal. Is that your evidence? -- There was nothing unusual about his - I will always remember that, Ms clothing? --- I don't think he was in Hollingsworth. uniform but he wasn't a policeman. Mm mm. And Mr Harney was involved; Do you say that you have always you've known that for the last 50 years, known that it was Mr Harney and Mr McGuinness who were involved in your
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haven't you? --- Yes, I do (Transcript 13 cross-examiner characterised Cubillo as August 1999: 1324–6). an evasive witness, because it was assumed that height is an objective
fact—a form of scientific knowledge— During cross-examination, Cubillo was and that Cubillo’s inability to identify asked questions about an event which Harney on the basis of height indicates occurred more than 50 years ago, when her unreliable memory. she was about six years old. By focussing on the detail of Cubillo’s memory of the However, what the cross-examination event, specifically the identity of the does elicit is of far greater relevance to individuals in question, the cross- the claim than Harney’s height, because examiner, Ms Hollingworth, attempted to significantly, what Cubillo does elicit evidence which conforms to a remember is that Harney was a white model of scientific knowledge where, in man. While she is unable to identify the order for something to be true, it must be colour of his hair and whether or not he susceptible to proof. The use of a had a moustache, Cubillo poignantly scientific model for proof serves to responds to Hollingworth’s questions by efface the significance of the effluxion pointing out that her memory is founded of time to the substance of memory and in the occasion being that of her also fails to take account of the removal from her grandmother. She said complexities, and significance, of she could remember Harney because childhood memories. The assumption he was a white man, later pointing out underpinning cross-examination is that that he was the only white man who the failure to provide a comprehensive drove the car in which she was account of an event or a description removed. By pointing to the way in that identified an individual provided which she is able to recall the identity of the basis to render the evidence Harney, Cubillo highlights a key unconvincing; that is, any inconsistency characteristic about which she was not or contradiction in the information questioned, but which identifies him recalled by the witness brings into most effectively. Harney’s racial identity question the reliability of the witness’ would appear to be his distinguishing memory. feature, as the only white man known in
the community to drive the car in which While asking questions about the visible Cubillo was taken. Hollingworth’s failure appearance of individuals is standard to question Cubillo on racial identity is practice in cross-examination in characteristic of the pervasiveness of attempting to establish identity, such white race blindness within the law, and forms of interrogation belie the hegemonic white culture more complexities and specificities attendant generally. on the way in which subjects remember events and people. To take one simple But Cubillo’s evidence points to more but fairly obvious point, for example, by than Harney’s racial identity, for what asking: ‘What did Bill Harney look like? … she highlights is the importance of the Was he tall or short?’, Hollingworth failed racialisation of the context of her to acknowledge that a six-year old child removal—the colonialist and is unlikely to make an assessment of assimilationist regimes of power which adults on the basis of their height, facilitated her kidnapping. An invariably a relative phenomena. As she examination of the testimonial process attempted to answer the question by reveals the way these racialised regimes explaining her dilemma, ‘He didn’t of power and discourse are replicated in appear to be tall … I’m just trying to tell the courtroom when Cubillo is cross- you my visions from my childhood’, the
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LUKER: WITNESSING WHITENESS examined. When questioned about how able to reliably identify Harney as one of she knew it was Harney, Cubillo said that the two men who removed her on this her grandmother had told her, that it occasion. While O’Loughlin did not was ‘common knowledge’ and that consider there to be anything ‘sinister’ in ‘[e]verybody in the community knew the occasion of errors, he did see such who these people were’ (Transcript 13 inconsistency as evidence of the August 1999: 1324–6). However, during difficulties experienced by witnesses in cross-examination, there is a clear attempting to remember events which attempt to highlight an absence of occurred so long ago (Cubillo [405]). verification for Cubillo’s evidence in the However, the unscientific nature of form of ‘proof’, such as the presence of Cubillo’s memory was used against her other witnesses. and O’Loughlin rejected her evidence, describing it as an ‘exercise of Cubillo’s evidence, however, clearly reconstruction’ ( Cubillo [406]). identified the existence of a well- established narrative of Indigenous child O’Loughlin’s appraisal of Cubillo’s removal by white men in her evidence failed to recognise the community. Such knowledge does not significance of the common knowledge require recourse to methods of proof; of which she spoke so clearly. Contrary indeed, as ‘common knowledge’ it to his conclusion, the importance of cannot be verified in this way. How Cubillo’s evidence lay not so much in a many witnesses would be required to claim that she, individually, had ‘known testify to the existence of ‘common for the last fifty years or more’ of the knowledge’ for the claim to fulfill the identity of the men who removed her— requirement of legal proof? Would the this was, in fact, not her expression, but presence of another family member at that of the cross-examiner. The the time of the removal have provided significance of her evidence lay in the the verification necessary? Significantly, importance of racial identity as an the eye-witness accounts of other aspect of common knowledge, and witnesses did not result in evidence particularly of white male racial identity sufficient to convince O’Loughlin of the as a signifier for the potential danger of veracity of her claim. Jimmy Anderson, theft of children. It is the racialised who lived at Banka Banka as a child regime of colonial power and the and was also removed to Six Mile Creek, economy of assimilation which was gave evidence that it was ‘welfare’, crucial to her claim, not her individual specifically naming Mr Sweeney and memory of an event which occurred ‘old Bill Harney’ as the men who half a century previously—an event removed him (Transcript 16 August 1999: which was not actually contested by the 1420–1). Kathleen Napananka, who Commonwealth. lived at Banka Banka, also gave evidence that her mother had three While O’Loughlin acknowledged the children with white fathers, all of whom tenuous nature of memory as were removed (Transcript 26 August knowledge, in requiring evidence to 1999: 1864–5). support an ‘important finding of fact’ (Cubillo [405]), he sought a form of The question of Cubillo’s memory of scientific knowledge—knowledge which Harney was discussed by Justice lacked contradiction and was O’Loughlin in his decision. He highlighted supported by empirical verification. In the fact that amendments were made requiring evidence which complied with to her statement of claim which called a positivist framework of jurisprudence, into question whether or not she was O’Loughlin attempted to submit
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Cubillo’s evidence to the rules required culturally specific, for the distinction to legitimate scientific knowledge. between reason and emotion emerged However, as Lyotard points out, it is not in European philosophy in the context of possible to ‘judge the existence or the rise of modern science and validity of narrative knowledge on the positivism, coinciding with the expansion basis of scientific knowledge’ or visa of colonialism and of the dominance of versa, because the relevant criteria are Western European colonial power different (1979: 26). throughout the world. The racialised, non-white subject—the ‘other’ of When Cubillo was cross-examined in western discourse—is also aligned within relation to the occasion of her removal this paradigm to the realm of affectivity from Banka Banka station, a traumatic and irrationality. event which occurred over 50 years ago when she was a small child, she The evidence given by Cubillo in relation attempted to answer the questions on to her loss of language and its discussion the basis of her memory and what she by O’Loughlin provide interesting sites for had been told. However, O’Loughlin an examination of the law’s resistance was unconvinced that Cubillo to affectivity. Loss of language was one remembers this occasion accurately, of the key issues in the case. Cubillo and that ‘perhaps, over the years, what Mrs Gunner both gave evidence that they Cubillo remembers has become mixed were forcibly prohibited from speaking with what she has been told’, their own languages in the institutions in concluding that she had ‘engaged in which they were placed and that this an exercise of reconstruction’, possibly resulted not only in the children’s ‘subconsciously’ ( Cubillo [405–6]). difficulties communicating with each other in the homes, but also meant that Speaking of the Mother Tongue they were unable to communicate with their families when they later had contact with them. This experience was According to Lyotard’s framework, most poignantly described in relation to notions of truth and rationality function, their reunions with their mothers— within post-Enlightenment conceptual occasions, which for each of them, paradigms, as metadiscourses. Such occurred only once. Loss of language paradigms rely principally upon binary was also highly significant to their claims constructions, where, as one in a series of loss of cultural, social and spiritual life of oppositions, rationality is posited and was particularly relevant to contra affectivity. Rationality is seen to decisions they each made about provide objective and incontestable ongoing contact with their families and truth, whereas affectivity is regarded as communities. irrational, tenuous, unstable and impossible to quantify. Feminist Cubillo’s language groups are Walpiri epistemologies provide critiques of the and Warumunga. She gave evidence juxtaposition of rationality and that these were the languages she affectivity, revealing how rationality is spoke as a child before she was equated with knowledge, cognition, removed. While it is unclear how old she authority, masculinity and the public was when she was taken to the Retta realm, whereas affectivity is aligned with Dixon Home, she was possibly only eight irrationality, feelings, corporeality, years old. When giving evidence in femininity and the private world of the relation to her loss of language and in individual (eg. See Alcoff & Potter (eds) response to a series of questions in cross- 1993). Constructions of rationality and examination, Cubillo clearly became affectivity are also historically and
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LUKER: WITNESSING WHITENESS frustrated and angry. While this did not about his treatment at St Mary’s Hostel, prevent her from answering the Gunner also used the term ‘flogged’ to questions articulately, her evidence was describe the punishment he received not accepted by O’Loughlin because it when he spoke his own language, in displayed emotion. addition to other occasions, for example when he ate food with his fingers During cross-examination, Cubillo was (Transcript 16 August 1999: 1510). Other questioned in detail as to whether she witnesses, including Jimmy Anderson, had previously learned any English at who had also been an inmate at the the mission school at Phillip Creek before Retta Dixon Home, said the children got being taken to the Retta Dixon Home strapped around their legs if they spoke and whether she used English as the in their own languages (Transcript 16 primary form of communication with the August 1999: 1426). The implementation other children and the missionaries. of the policy of assimilation through the Cubillo gave evidence that the children refusal of language and culture has attended school only for about one hour been well documented (eg. Human per day, and that their lessons consisted Rights and Equal Opportunity of recitals of simple words and songs; Commission 1997: 202). she said that she spoke a little pidgin English (Transcript 13 August 1999: 1301– However, in his decision O’Loughlin 2). At the Retta Dixon Home, Cubillo posited ‘practicality’ as the reason for gave evidence that the children were the missionaries’ discouragement of ‘the forced to stop using their languages and children speaking their native tongue’ that they were ‘flogged’ when they did (Cubillo [593])—the practical necessity so. Counsel for the respondent of communication by means of a challenged Cubillo’s claim: common language. Practicality accords more with the discourse of rationality And I put it to you that you did not than the ‘vitriolic’ anger and trauma of cease to use your traditional language a person who is asked to recall and at Retta Dixon because you were describe the experience, as a child, of flogged; rather you ceased to use being punished simply for speaking . It your traditional language out of suggests an understanding of a choice necessity of learning English—you to speak English as a second language, understand the question? --- Miss for example spoken outside the home Hollingsworth, I was flogged. I was environment, but where the first flogged. Our language was flogged language is used with family and out of us. I know what happened to community. However, this is not the me (Transcript 13 August 1999: 1301–2). context described by Cubillo of the loss of her language; rather, she is describing When citing this exchange in his the trauma experienced as a result of judgment, O’Loughlin again identifies the theft of her mother tongue. Cubillo Cubillo’s testimony as an ‘example of did not give evidence that the children subconscious reconstruction’, this time, were punished for speaking on the describing it as having escalated into grounds of practicality, she said that the ‘vitriol’ (Cubillo [593]). children’s language was flogged out of them. It is O’Loughlin’s interpretation of It is difficult to establish the grounds Cubillo’s evidence which assumed the upon which O’Loughlin refused to notion of practicality. In superimposing accept Cubillo’s claim that the children the rational discourse of practicality, were flogged for speaking their O’Loughlin effectively erased and languages. When giving evidence
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LUKER: WITNESSING WHITENESS dismissed the powerful evidence of about eight years old; she is now unable anger and resentment. to speak her own language; she is unfamiliar with many aspects of her Loss of language was fundamental to traditional culture; she did not see her the plaintiffs’ evidence in relation to their family or community for the remainder reunions with their families. Cubillo’s of her childhood; and when she did see testimony about the experience of her mother, she could not speak to her. seeing her mother was a moving In the trial she expressed feelings of loss, description of the extraordinary pain loneliness, alienation, anxiety and and frustration she experienced when depression—all of which she has unable to communicate with her continued to experience throughout her mother: adult life. Nevertheless, O’Loughlin determined that this was inconsistent with her decision not to return to her Were you able to speak with her when community. In doing so, he elevated the you got to Phillip Creek? --- It was very discourse of ‘rational’ behaviour, difficult because mum only spoke suggesting that she was not motivated limited English and I spoke to her sufficiently to have contact with her through other relatives like an mother—a woman she had not seen interpreter and it was very difficult to since she was a small child and with let her know how I felt and to whom she could not speak . understand what she was saying to
me. We just cried and hugged. Over-writing Cubillo’s narrative of loss … and alienation, O’Loughlin diminished her evidence of pain and trauma and What did you think, Mrs Cubillo, about replaced it with an alternative story of seeing your mother again?---I was resentment, bitterness and vengeance confused. I wanted to be with her, but which, he suggested, she has mistakenly I felt that my life had been severed directed against the Commonwealth. from the time I was removed from He determined that she was unhappy Phillip Creek and I could not because she could not ‘adapt’ at the communicate adequately with my Retta Dixon Home and that she has mother. subsequently had a very difficult life Did you see your mother again after (Cubillo [730]). O’Loughlin expressed that visit?---No, I didn't (Transcript 11 empathy for Cubillo, and went on to August 1999: 1137) . highlight specific details of the suffering and hardship she has experienced
throughout her life. In doing so, he Cubillo said that while she wanted to be contradicts the assertion that his with her mother, she felt that the way judgment by necessity be ‘devoid of she had been dissociated from her emotion’ ([79]). However, this expression family and the impossibility of speaking of affectivity is accorded rational status, with her made contact painful. In whereas Cubillo was said to have evaluating this evidence in his judgment, ‘lashed out’, having an irrational sense however, O’Loughlin points out that of grievance towards the while Cubillo knew where to find her Commonwealth ([730]). What mother, Maisie, she did not visit her O’Loughlin failed to recognise is the again. He saw this as inconsistent with significance of Cubillo’s experience of her claim of forced separation. the loss of her language and of her
inability to speak to her mother. He also Cubillo was completely separated from failed to hear the voice in which she her family and community when she was
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LUKER: WITNESSING WHITENESS now speaks. As Cubillo had previously desire to reverse the speaking position, pointed out, as a child she lived in an to ask the questions of counsel for the oral culture, a culture in which Commonwealth, the institutional knowledge would have been representative responsible for her communicated verbally, in conversation removal. Cubillo proposes an inversion and other narrative forms. Her inability to of the interrogative model of cross- speak to her mother, and to other examination which reveals the people in her community, indicates relationship between subjectivity and much more than linguistic frustration, it underlying structure of the testimonial points to the unspeakability of the pain form: she has suffered and its unrepresentability in Western legal When I was being questioned by the discourse. Commonwealth lawyer, I didn’t know if I could reply in the way I wanted to. I Conclusion just sort of said ‘yes’ and ‘no’ about a few things, but I would’ve liked to ask questions myself, and ask the reason It has been argued (Evans 2002: 131) why I was taken. I would have liked that in Australian courts, Indigenous some answers from the Commonwealth and to say: ‘Have narrative knowledge is regarded as a you got any proof that my mother and form of ‘writing’, on the basis that it does my family neglected me?’ I was taken not privilege the presence of the because of the colour of my skin—the speaking subject and ‘[t]he original fact that my mother was an subject who handed down the laws or Indigenous woman and my father was rules or narratives that are recited (as an Anglo-Saxon—for no other reason much as they can be) in the courts is but that .9 regarded in absentia ’. Evans argues that this produces a ‘schism’—that is, what Author Note Lyotard might include within the differend (Lyotard 1988: 9): ‘when the Trish Luker is a Research Associate with “regulation” of the conflict that opposes Professor Margaret Thornton on the ‘EEO them is done in the idiom of one of the in a Culture of Uncertainty’ project in the parties while the wrong suffered by the ANU College of Law, The Australian other is not signified in that idiom’. National University. Indeed, Lyotard (1988: 9) uses the juridical context to discuss his concept of the differend , where he highlights the Acknowledgments paradox produced in law when a victim of a wrong: I pay my respects to the traditional
owners and custodians of the land on is divested of the means to argue and becomes for that reason a victim. If which this research was formally the addressor, the addressee, and the conducted, the Wurundjeri people of sense of the testimony are neutralized, the Kulin Nations. I would like to thank everything takes place as if there were Lorna Cubillo for giving generously of her no damages. 8 time in an interview. Thanks also to the anonymous referees and Jen Nielsen for When I interviewed Cubillo about her helpful comments and suggestions. experience of giving evidence in the trial, she highlighted the paradoxical position of the witness giving testimonial evidence. She expressed her frustrated
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References Lyotard, J-F. 1979. The Postmodern Condition: A Report on Knowledge , Theory and History of Literature, Alcoff L. & Potter E. (eds) 1993. Feminist Volume 10, University of Minnesota Epistemologies Routledge, New York Press. Brooks, P. and Gewirtz, P. 1996. (eds), ——1988. The Differend: Phrases in Law’s Stories: Narrative and Rhetoric Dispute (Trans. G. van den in the Law , Yale University Press, New Abbeelee), Theory and History of Haven. Literature, Volume 10, University of Clarke, J. 2001. ‘Case note: Cubillo v Minnesota Press. Commonwealth ’, Melbourne Moreton-Robinson, A. 2004. Whiteness, University Law Review, 25, 218–94. Epistemology and Indigenous Commonwealth of Australia, ‘Apology Representation, in A. Moreton- to Australia’s Indigenous Peoples’ , Robinson (ed) Whitening Race: Essays House of Representatives in Social and Cultural Criticism, Parliamentary Debates , 1, 13 Canberra: Aboriginal Studies Press. February 2008, 167–77. Neville, A. 2005. ‘ Cubillo v Curthoys, A., Genovese, A. & Reilly, A., Commonwealth : classifying text and 2008. Rights and Redemption: History, the violence of exclusion’ Macquarie Law and Indigenous People , UNSW Law Journal , 5, 31–55. Press, Sydney. Pardo, M. S. 2005. ‘The field of evidence Davies, M. 2008. 3 rd ed. Asking the Law and the field of knowledge’, Law and Question, Sydney: Law Book Co. Philosophy , 24, 321–92. Douzinas, C., Warrington R. & McVeigh, Sanders, M. 2007. Ambiguities of S. 1991. Postmodern Jurisprudence: Witnessing: Law and Literature in the The Law of Text in the Texts of Law, Time of a Truth Commission , Stanford London: Routledge. UP, Stanford. Evans, J. 2002. ‘Indigenous Australians: Schaffer, K. & Smith, S. 2004. Human language, and the law’, International Rights and Narrated Lives: The Ethics Journal for the Semiotics of Law 15, of Recognition , Palgrave Macmillan, 127–141. New York. Haldar, P. 1991. ‘The evidencer’s eye: Spivak, G. C. (1987) In Other Worlds: representations of truth in the laws of Essays in Cultural Politics , Routledge, evidence’, Law and Critique II(2), New York. 171–89. Thornton, M. 1990. The Liberal Promise: ——1999. ‘The return of the evidencer’s Anti-Discrimination Legislation in eye: rhetoric and the visual Australia , Oxford University Press, technologies of proof’, Griffith Law Melbourne. Review 8(1), 86–101. ——2002. (ed), Romancing the Tomes: Human Rights and Equal Opportunity Popular Culture, Law and Feminism , Commission, 1997. Bringing Them Cavendish Publishing, London. Home: Report of the National Inquiry Twining, W. 1994. Rethinking Evidence: into the Separation of Aboriginal and Exploratory Essays, Illinois: Torres Strait Islander Children from Northwestern University Press. Their Families , Sydney. Whitlock, G. 2001. ‘In the second Kennedy, R. 2002, Legal Sensations: person: narrative transactions in Sexuality, Textuality and Evidence in a Stolen Generations testimony’ Victorian Murder Trial, in Thornton, M. Biography 24(1), 197–214. (ed), Romancing the Tomes: Popular Williams, C. 1994. ‘Feminism, subjectivity Culture, Law and Feminism , and psychoanalysis: towards a Cavendish Publishing, London. (corpo)real knowledge’, in K. Lennon
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and M. Whitford (eds), Knowing the Difference: Feminist Perspectives in evidence of the Stolen Generations within Epistemology , London: Routledge. white Australian popular discourse generally has contributed to a renewed interest in Cases narrative analyses of testimonial forms. See, for example, Schaffer and Smith (2004). There Alec Kruger & Ors v The Commonwealth has also been attention to the reception of of Australia; George Ernest Bray & Ors historical evidence, including oral history, in v The Commonwealth of Australia the courtroom, largely as a result of claims (1997) 146 ALR 126. brought by Indigenous people in relation to native title, heritage and Stolen Generations: Cubillo v Commonwealth [2000] FCA Curthoys, Genovese & Reilly (2008). 1084 (Action Nos 14 and 21 of 1996), 5 This distinction, Davies (2008: 331) suggests, 174 ALR 97. reflects the two main approaches to the evaluation of evidence, according either to Trevorrow v State of South Australia (No. the probability of events or to narrative 5) [2007] SASC 285. coherence. 6 However, see Pardo (2005); Haldar (1991; Williams v Minister, Aboriginal Land Rights 1999). Act 1983 (1999) 25 Fam LR 86; [2000] 7 Eg., see, Sanders (2007). Aust Torts Reports P81-578, 64,136. 8 Neville (2005) draws on Lyotard’s notion of the differend in her fine reading of the Notes Cubillo decision to reveal underlying classificatory hierarchies within genres of legal discourse. 9 Interview with Lorna Cubillo, Darwin, 25 1 Sadly, in April 2005, Mr Gunner passed September 2004. away. He was a man of courage and dignity, whose struggle, along with Lorna Cubillo, in seeking justice for members of the Stolen Generations was of great significance. In accordance with Central Australian Aboriginal law, I have used Kwementyay as the substitute for his first name in this article. 2 Cubillo v Commonwealth (2000) (hereafter Cubillo ). This decision has attracted critical attention from a range of perspectives. For a detailed case note, see Clark (2001). 3 The other cases were Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of Australia (1997); and Williams v Minister, Aboriginal Land Rights Act 1983 (1999). All claims were unsuccessful. Significantly, in August 2007, in the first, and to date, only successful action by a member of the Stolen Generations, Bruce Trevorrow succeeded in his claim against the South Australian government, winning $525,000 in compensation for having been removed from his mother’s care in 1957 when he was 13 months old: Trevorrow v State of South Australia (No. 5) (2007). Tragically, Trevorrow died in June 2008, aged 51. 4 See, for example, contributions to Brooks and Gewirtz (eds) (1996) and Thornton (ed) (2002). In Australia, the emergence of
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
A CRITICAL DISCOURSE ANALYSIS OF THE LANGUAGE QUESTION IN AUSTRALIA’S IMMIGRATION POLICIES: 1901–1957
FINEX NDHLOVU Introduction Abstract The history of the evolution of Australia’s Australia’s immigration policies have immigration policies is well documented. remained an unsettled area subject to York (1992; 1993), Tavan (2005), political disputation since the Hollinsworth (1998) and Willard (1967) promulgation of the Immigration detail the history of Australian Restriction Act 1901 (Cth). Section 3(a) of immigration, tracing the gradual policy this Act required that all prospective transformations initiated by successive immigrants from non-European countries governments from the late 18 th century had to pass a dictation test in any to the late 20 th century. When Australia European language selected by the became a federation in 1901, Australian immigration officer. Asian racial groups citizens were still uncertain as to what were the main target of this legislation, made them a nation. However, one which was embraced as part of the thing upon which most of them agreed ‘White Australia’ policy. Far from being was who to exclude from their midst an objective assessment of language (Sherington 1980). This general consensus proficiency skills, the dictation test was a was premised on the idea of a ‘White discursive construct ostensibly designed Australia’ policy formalised through the to be failed and to exclude people Immigration Restriction Act 1901 (Cth). whose political and racial affiliations Under this legislative measure (mainly were considered undesirable. Drawing aimed at restricting the entry of Chinese, on insights from the conceptual Indians, Japanese and other Asians), framework of critical discourse analysis, non-whites could only enter Australia on this article traces and examines the use a temporary basis under a permit. The and abuse of language testing as a tool desire to guard Australian society against for racial and political exclusion in the perceived dangers of Asian Australia from 1901 to 1957. Because it immigration was one of the major factors was during these years that successive that necessitated the promulgation of Australian governments embraced the Immigration Restriction Act. explicit formal policies on testing Parliamentary members of the federal language skills of intending immigrants, government ‘hailed the IRA as a this period marks an important chapter in legitimate attempt to preserve Australia’s the history of Australia’s immigration white racial purity, to shield Australian policies. Since then, the language workers from the vagaries of cheap question has continued to feature Asiatic labour, and to protect national prominently in public debates on sovereignty against a potential '“Asiatic” Australia’s citizenship and immigration invasion’ (Tavan 2005: 8). This fear was laws. well articulated by Alfred Deakin, Attorney-General of the first federal government, in the House of Representatives:
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
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No motive power operated more to note that although the dictation test universally on this continent … and was formally withdrawn in 1958, the certainly no motive power operated abuse of language tests for political more powerfully in dissolving the purposes of exclusion and inclusion technical and arbitrary political continues to punctuate Australia’s divisions which previously separated us than the desire that we should be immigration policies. one people, and remain one people, without the admixture of other races. Drawing on insights from the conceptual It is only necessary to say that they framework of critical discourse analysis do not and cannot blend with us, (‘CDA’) (Fairclough 1992; 1995; van Dijik that we do not, cannot and ought 1996; van Dijik and Wodak 1993; Chilton not to blend with them (reproduced 2005), this article explores the history of in Willard 1967: 119). Australia’s immigration policies, focussing
on the appropriation of language tests The determination of the federal ‘as mechanisms of exclusion in the name government to pursue racist policies was of national inclusiveness’ (McNamara backed by legislation such as the Pacific and Roever 2006: 182). In this article, Islanders Labourers Act 1901 (Cth), which aspects of language testing for was designed to facilitate the mass Australian immigration are interrogated deportation of nearly all Pacific Islanders as part of the discursive construct used working mostly as indentured labourers in to camouflage racist political processes the sugar cane plantations of Australia. of excluding ‘unwanted’ prospective The Act specifically prohibited any immigrants. Three distinct phases can be Pacific Islanders from entering Australia identified in the history of Australian after 31 March 1904, and required all immigration policies, namely (i) the those entering before then to have a period of outright exclusion of unwanted license. It further stipulated that any races (1901–57); (ii) the period of Pacific Islander found in Australia, who assimilation (1958–78); and (iii) the period had not been employed under an of assimilation–tolerance (often indentured labour agreement at any misconstrued as integration by politicians time in the preceding month, could be and policy people) (1978 to the present). deported immediately. Under this Act it became an offence to employ a Pacific The discussion specifically focuses on the Islander in any other way than through period from 1901 to 1957. This period is an indentured labour agreement. worth considering because, in one way
or another, the legacy of events that Together with these explicitly racist happened during the formative years of political and economic measures, a a federated Australia continues to inform dictation test in any European language public and political opinion on issues of chosen by the immigration officer was language diversity, multiculturalism and adopted to enhance the exclusion of inclusion. Under the citizenship test unwanted immigrants. The dictation test introduced in 2007, Australian citizenship sought to ensure Australian immigration applicants have to successfully was restricted to selected people from complete a citizenship test in English Europe. As insurance against possible before lodging an application circumvention of the test by non- (Commonwealth of Australia 2007). In Europeans, it was agreed by members of other words, the test is an eligibility parliament that customs officers would criterion to be met and the application select a language with which the cannot go ahead until one has passed it. intending undesired immigrant was This betrays the monolingual ideology unfamiliar (Tavan 2005: 10). It is important
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that has characterised Australian For many CDA scholars, the toolkit for immigration policy since the early 1900s. deconstructing the socially-constructed (thus linguistically-constructed) The central argument of this article is that machinery of power lies in the work of there is a clear pattern in the history of social theorists such as Bourdieu, Australian migration that demonstrates Foucault, Gramsci and Habermas. the significance of language and Additional influences on the language testing in determining who is methodology of CDA can be traced to included in or excluded from Australia. In the postmodernist ideas of Barthes and pursuing this argument, I examine the Derrida, among others. Although the ‘White Australia’ policy and the dictation postmodernist school of thought focuses test, demonstrating how the latter was mainly on ideas from philosophy, literary used as a tool for achieving the explicitly studies and sociology, it is also evident in racist intentions of this policy. In the final linguistics through the ideas of de sections, I illuminate some of the linkages Saussure. CDA attempts to go beyond between the historical events and merely describing discourses by present day Australian migration policy. adopting an interdisciplinary approach that seeks to unpack power relationships Conceptual Framework: Critical and their effects in society. Discourse Analysis To this effect, Fairclough and Wodak (1997: 271) summarise the main tenets of Critical discourse analysis (CDA) primarily CDA as follows: CDA addresses social studies the way social power, problems; power relations are seen as dominance and inequality are enacted, discursive; discourse constitutes society reproduced and inscribed in clearly and culture; discourse does ideological defined socio-political contexts (van Dijk work; discourse is historical; the link 1998). Put another way, CDA is between text and society is mediated by concerned with the ways in which discourse; discourse analysis is structures of discourse enact, confirm, interpretative and explanatory; and legitimate, reproduce or challenge discourse is a form of social action. In notions of power, hegemony and broad terms, the major focus of CDA is domination in society. The framework of discursive practice, which basically refers CDA seeks to demonstrate that ‘the to ‘rules, norms, and mental models of [languages] we use help shape or socially acceptable behaviour in specific constrain our identities, relationships, and roles or relationships used to produce, systems of knowledge and beliefs’ receive, and interpret messages’ (McGregor 2003: 3). (McGregor 2005: 3). Of major concern to the CDA approach is the desire to Although CDA is a relatively recent unmask the spoken and unspoken rules conceptual framework that emerged and conventions that govern how out of Europe in the 1990s, its theoretical individuals learn to think, act, and speak propositions are useful to a more in all the social positions they occupy in nuanced understanding of issues that life (Blommaert and Bulcaen 2000). th happened in early to mid 20 century Australia. The salience of CDA as an CDA is also linked to Foucault’s analysis analytical framework for the language of power/knowledge. In his extension of question in Australia’s migration policies Gramsci’s (1971) ideas on hegemony, is that it is transcendental, enabling us to Foucault (1972) posits that power is interrogate and engage historical issues constructed and configured through a in relation to our present circumstances.
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delicate balancing of consent and federated Australia. I utilise Foucault’s coercion, making the whole gamut of ideas to identify and critique the material governance and policy making revolve and institutional effects of power- around the politics of coercion. constructed discourses on ‘undesirable’ Foucault’s theorisation of power and immigrants to Australia. governmentality emphasises the relationship between the subject and What emerges from the foregoing is that power, the relationship between the from a CDA perspective, discourse is modern state and the self-governing viewed as inherently part of, and individual, the role of language in influenced by social structure and constructing discourses of dominance produced in social interaction. Therefore, and subjugation, and the role of the in CDA, theory formation, theory testing, professional expert in constructing new description and explanation are pre- social realities amenable to governance eminently socio-politically situated. In the (Gane and Johnson 1994). words of Gee (1990: xix) discourses are ‘ways of behaving, interacting, valuing, In his analysis of the power/knowledge thinking, believing, speaking, and often nexus, Foucault considers power to be at reading and writing that are accepted a level that is beyond repressive, as instantiations of particular roles by materialist and institutional terms. Power specific groups’. This nature of discourse is, therefore, a fluid and elusive notion, is further emphasised by Fairclough which manifests itself in various forms. This (1992: 87) where he observes that means that power is everywhere and ‘discourse constitutes the social, wherever there is power, there are including “subjects” and language is far power differentials. Foucault (1972) more than a representational tool suggests that power must be understood [because] it is a form of action and as ‘power/knowledge’ because contains within it ideological elements’. knowledge is what power relations This means that language is a central produce in order to spread and vehicle in the process whereby people disseminate ‘legions of adapted, are constituted as individuals and social ambient individuals’. This multi-formed subjects. Therefore, because language and multiplied nature of the notion of and ideology are closely intertwined, a power shows that power relations are not critical analysis of the language question always underpinned by force and in Australia’s immigration policies has the violence. Rather, the exercise of power is capacity to expose some of the embedded in more subtle modes that lie pervasive ways in which use of the hidden below the tightly knit grid of dictation test for migration purposes material realities. unfairly excluded some people.
For Foucault then, our understanding of The linkages between language, power any particular aspect of human life is and ideology articulated in the historically contingent and dependent preceding paragraphs constitute a solid upon power relations. The powerful will foundation for analysing the language always seek to construct power question in Australia’s immigration discourses that entrench their positions policies. Using the insights of CDA, I and/or sources of power. In this study, argue that language testing in Australia Foucault’s ideas are useful in teasing has always been a site of power new meanings out of the factors that struggles where hegemonic ideologies motivated racist and discriminatory continuously strive to reinscribe and legislation in the formative years of a legitimise their power over the socio-
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politically weaker immigrant groups. In These measures for implementing the attempting to come up with a ‘White Australia’ policy were warmly conceptually well grounded received by both the general public and archaeology of the history of the the political leadership of the time. For language question in Australian instance, in 1919, the policy was hailed immigration policy, the article makes by Prime Minister, William Morris Hughes, recourse to a number of CDA tenets that as the greatest thing that Australia had include the dichotomous link between achieved (Tavan 2005). Similarly, the social relations and discourse, ideology federal parliamentary caucus of the and discourse, power and discourse as Labor Party passed the following two well as language, power and social crucial motions in support of the achievement. These notions of CDA are Immigration Restriction Act: (i) that the germane to this study insofar as they party work for the total exclusion of serve as analytical categories in coloured people whether British subjects exposing the unequal socio-political and or not, and (ii) that the party approves of economic relations that were the educational test as to coloured propagated and sustained by insisting British subjects, with such amendments as on certain levels of English language may seem necessary; but opposes proficiency for prospective Australian absolutely the admission of all coloured immigrants. aliens (Head 1999).
‘White Australia’ Policy: The Doctrine There is no doubt that from 1901, of Outright Exclusion Australia embraced a purely racist and discriminatory immigration policy. The foregoing political positions articulated Following the formation of the Australian at the highest levels of decision making federation in 1901, one of the first pieces had a profound influence on the of legislation passed by the new treatment of immigration applications parliament was the Immigration other than those from the United Restriction Act 1901 . This Act, which Kingdom. The position of the received royal assent on 23 December conservative Liberal Party was no 1901, was designed to place certain different to that of the Labor Party as restrictions on intending immigrants they maintained a ‘White Australia’ perceived to be a threat to Australian policy, extending it to the exclusion of interests. From 1901 up to the late 1950s, people from southern Europe (eg. Italy, Australia’s approach to immigration was Greece and Spain), whose skins were conceived in terms of the ‘White regarded as ‘swarthy’. The dictation test Australia’ policy, which imposed limited was actually brought in to camouflage acceptance of immigrants from other the racist political goals of the ‘White parts of the world and favoured Australia’ policy. Of the 3290 persons applicants from selected European refused admission into Australia between countries. Although it was amended 14 1901 and 1957 under the Immigration times before its abolition in 1958, the Restriction Act, two-thirds were excluded Immigration Restriction Act remained the by the dictation test (York 1992: 4). guiding principle for Australian immigration policy for the period 1901 to 1958. Section 3(a) of the Act prohibited immigration into Australia by any persons who failed to write out a dictation test of 50 words in any European language prescribed by an immigration officer.
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Reasons for the ‘White Australia’ around immigrant integration ‘problems’ Policy still persist in present-day Australia with Sudanese refugees being the latest wave of migrants accused of failing to A variety of interrelated reasons measure up and integrate into prompted the Australian political mainstream Australian society. leadership to come up with the ‘White Australia’ policy. The preservation of a Thirdly, the Immigration Restriction Act British-Australian nationality was the first was supported by Australian workers due fundamental motive. Interpreted through to fears of losing their jobs to Asian the prism of race, the Australian migrants and concerns over a culture of community of British descent was unfair labour practices that could ensue. imagined as a superior organic The policy was thus viewed as a community, which required protection justifiable measure to subvert the type of from the possible influx of ‘alien’ races. economic and social problems that Permitting uncontrolled immigration of could come with uncontrolled non-European racial groups ‘would be a immigration. Australian people believed calamity, for it would [lead to the] death that ill-paid labour was inconsistent with of British-Australian nationality’ (Willard a system of national economy in which 1967: 192). At the time, the Australian the industrial life of the community is community was conceived as founded systematically regulated to ensure that upon three components, namely: being workers have a reasonably high racially white, being of British descent standard of living. This was indeed a and being Australian. This was basically prudent concern, but also one inspired about values, ideas, concerns and way by racist thinking based on a set of of life, issues that are still at the core of perceived negative cultural traits current debates on Australian citizenship thought to be inherent characteristic and immigration policies (Hollinsworth features of Asian immigrants (Hollinsworth 1998; Tavan 2005). 1998: 3).
Secondly, perceptions about the By way of summary, the reasons that led possibility of the emergence of ethnic to the adoption of the ‘White Australia’ enclaves and ghettos turned out to be policy typify the ambivalences, another sustained argument in favour of ambiguities and contradictions of British adopting the ‘White Australia’ policy. colonial policy. While immigration Non-European immigrants were to be restriction was explicitly aimed at restricted because they were perceived reducing numbers of non-European as unwilling to integrate, choosing to immigrants, the same people were form their own communities instead needed in building Australia through (Willard 1967; Tavan 2005). But the their services as migrant labourers in question is this: what does integration or mining and plantation industries. amalgamation entail? Integration is a Concerns over possible international two way process, whereby both the condemnation of Britain’s democratic immigrants and the host community and human rights record in its colonial have to negotiate and accommodate empire created tensions between the each other’s cultural identities. However, doctrine of ‘White Australia’ and the because the ‘White Australia’ policy was, ideals of social liberalism. As York (1992: by definition and design, purely 8) clearly observes: discriminatory legislation, it had no provision for this ideal view about integration. Tensions and controversies
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A paradox existed: We [the people linguistically and socially constructed for of Australia] wanted to exclude purposes of exclusion. As pointed out by coloured races, but not offend our McNamara and Roever (2006: 160), care coloured brothers and sisters in the was taken to ascertain which languages Empire … We believed that the British the person in question did know , and Fleet was our ultimate protection against the Asiatic hordes, the best then the test was given in a language military defence of our racial ‘purity’, that the person did not know . yet we had to go against the wishes Predictably, the person would fail the of the Imperial Government if we test and then be excluded on that basis. were to honestly and openly express our desire for a white Australia But the question is: why would the through our own immigration laws. language skills of prospective immigrants from Asia be tested in European Therefore, while the restriction of non- languages? What is the point of testing European immigration was considered a someone’s knowledge of something that necessary step towards the preservation you are fully aware the person is not of a British-Australian national identity, it competent in? Clearly, this does not was at the same time clearly antithetical make any sense at all because if you to the ideals of a liberal democratic and want to find out someone’s language free capitalist society that Australia was skills, then you should choose a intended to be. Such were the internal language that the person is competent contradictions of British colonial policy in. The rigour and effort exerted in that continuously forced the doctrine of establishing the linguistic identities of ‘White Australia’ to swing unsteadily prospective immigrants was not between the poles of outright racial motivated by the principle of fairness, by exclusion and social liberalism. ensuring the person is tested in the language he/she knows best, but rather Use and Abuse of the Dictation Test the contrary. This clearly shows the dictation test was a political tool for One of the key means for implementing advancing the cause of the ‘White the ‘White Australia’ policy was the Australia’ policy, which was ostensibly infamous dictation test in which those designed to exclude unwanted people. wishing to immigrate, or even enter the Shohamy (McNamara and Shohamy country, had to pass a language 2008: 93) has advanced three reasons examination in English or any other against the use of language testing for European language with which they immigration purposes. The first is the right were not necessarily familiar. The of people to use their own language dictation test was used as the means to and the violation of this right when exclude ‘undesirable’ intending governments impose language on immigrants, that is, those people whom people. Second, for many immigrants it is governments of the day regarded as not possible to acquire a new language, politically or morally undesirable (York especially as adults, and even more so 1992: 4). Thus, potential immigrants who when there is no access to, or time for, were ‘undesirable’ by virtue of their opportunities to learn. Third, immigrants nationality or race for example, were not are of course capable of acquiring directly ousted on the grounds of their aspects of the host language as and race; officially, it was only because of when the need arises, and of using other their language skills that they were not languages to fulfil all the duties and permitted entry. From a CDA point of obligations of societal participation view, this means some people were
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(voting, expressing opinions, managing measure [the dictation test] tasks in the workplace and so on). (Commonwealth Parliamentary Debates 1901: 3500). In Australia, cases involving the abuse of language tests for political purposes are The idea of giving the dictation test in a well documented (see Davies 1997; way that would appease Australia’s and McNamara 2005; McNamara and Britain’s allies, while at the same time Roever 2006). York’s (1992; 1993) detailed achieving the intended goal of analysis of data from annual returns on excluding ‘undesirable’ people, persons admitted and refused entry into received majority support in federal Australia for the period 1901 to 1957 parliament. From the beginning of 1901, shows that the dictation test was used to the dictation test was administered to exclude both individuals and groups of targeted individuals, particularly those unwanted people. The list of nationalities with political views contrary to the British- from which individuals or groups were Australian values espoused by the ‘White excluded includes Chinese (who Australia’ policy. accounted for more than half of all those kept out by the dictation test), For example, Gerald Griffin, an Irish-born Filipinos, Syrians, Afghans, Indians, communist New Zealander, was Armenians, Austrians, Cape Verde excluded in 1934 on the basis of a Islanders, Chileans, Danes, Hungarians, dictation test which was used to achieve Hawaiians, Egyptians, French, Fijians, preconceived political goals. Because of Germans, Greeks, Kurds, Indonesians, his communist ideological inclination, Papuans, Russians, Portuguese, Griffin was not welcome in Australia. Romanians, Seychelle Islanders, Although he was fluent in Irish and Spaniards, Mauritanians, Burmese, English, the authorities chose to Maoris, Latvians, Poles, and Swiss, among administer the dictation test in Dutch, a others (York 1992: 1). language that Griffin was not familiar with (McNamara and Roever 2006). The largest groups refused entry into Naturally, he failed the test and was Australia in any single year were Chinese subsequently deported. (459 persons excluded in 1902); Maltese (214 persons excluded in 1916) and The most celebrated case in which Italians (132 persons excluded in 1930) political exclusion was camouflaged by (York 1992: 16, 33, 51). In all these cases, the dictation test is that of Egon Kisch, a admission was refused on grounds of Czech Jewish communist writer refused failing the dictation test. The hidden entry into Australia by the Lyons political and racial agenda of the government to attend an anti-war dictation test was clearly articulated by congress in 1934. The government first Prime Minister Edmund Barton: sought to exclude and deport Kisch on the grounds of his communist political The moment we begin to define, the beliefs. However, when he jumped moment we begin to say that ashore from a ship attempting to avoid everyone of a certain nationality or deportation, the authorities arrested him colour shall be restricted, while other and administered a dictation test. But persons are not, then as between because Kisch was fluent in many civilised powers, amongst whom now European languages, including English, must be counted Japan, we are the authorities chose to administer the liable to trouble and objection … I test in Scottish Gaelic, a language with see no other way except to give a which he was not familiar. Kisch failed large discretionary power to the authorities in charge of such a the test, the reasonableness of which
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was successfully challenged in the High specific reference to the crucial role of Court (McNamara and Roever 2006: language tests in determining 160). However, because the dictation individuals’ access to rights and test was simply a smokescreen and the privileges that come with citizenship, government was intent on excluding McNamara and Shohamy (2008: 89) him, Kisch was eventually refused entry observe that: on other grounds. In most societies tests have been Egon Kisch’s case marked an important constructed as symbols of success, turning point in the use of the dictation achievement and mobility, and reinforced by dominant social and test for immigration purposes in Australia. educational institutions as major During the 1930s and early 1940s, the criteria of worth, quality and value. dictation test was rarely used because of The granting of citizenship is thus the negative publicity received by the dependant on passing a language Kisch saga. Consequently, annual returns test … This policy determines for the years 1931–39 recorded some of continued residence in the state, and the lowest numbers of persons refused access to rights and benefits such as admission, with as few as nine people health, education and welfare. being excluded in 1938, all of them on other grounds, aside for one Chinese An analysis which draws on CDA reveals person who failed the dictation test. that during the heyday of the ‘White Although the yearly figures of people Australia’ policy, the political intent of refused admission rose to 41 in 1940, language tests was often deliberately there was a dramatic fall again in 1942, masked by using what appeared to be 1943 and 1944 as there were no people an objective mechanism—a test. An refused admission in the three successive analysis of the Immigration Restriction years (York 1992). This decline in numbers Act brings into light the non-transparent of people refused admission can be political issues that were a factor in attributed to limited use of the dictation securing the power and hegemony of test as a major criterion for vetting ‘White Australia’. It also draws attention prospective immigrants. These statistics to the ‘power imbalances, social and the cases of Gerald Griffin and Egon inequities, non-democratic practices, Kisch clearly show that the dictation test and other injustices’ (Fairclough 1992: was a huge barrier to successful 154) that lay hidden beneath the fissures immigration into Australia. and fault lines of Australia’s earliest immigration policies. Therefore, in The above examples amply demonstrate addition to the explicit exclusionary and the extent to which the dictation test racist discourses of Australia’s governing was an integral part of the political authorities, the period 1901–57 witnessed discourse on racial, ethnic and political the abuse of the language skills test as a exclusion during the formative years of tool of ‘guaranteeing racial exclusion in hegemonic white Australia. Both cited a non-racial way’ (York 1992: 8). cases highlight ‘the dishonest nature of the test, which was a test designed to be For all its transparent dishonesty, the failed’ (York 1992: 5). As McNamara and dictation test proved to be highly Roever (2006: 161) clearly state, the effective as a way of keeping out dictation test was ‘a ritual of the undesirable racial groups because by exclusion of individuals whose identity 1947 the target groups had diminished was already known and deemed to be greatly as a proportion of the total unacceptable on a priori grounds’. With Australian population: ‘Whereas in 1901 every seventy-seventh person in Australia
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was “coloured”, by 1947 the ratio was policy modifications with an eye to one “coloured” to every five hundred foreign affairs. If the Immigration whites’ (York 1992: 10). The question then Restriction Act and the ‘White Australia’ is: why was the dictation test eventually policy had become such an abolished in 1957 when it had in fact embarrassment, the dictation test was proven to be such an effective tool for even worse. The dictation test had exclusion? I deal with this question in the become a continuing source of ire in next section. Asian countries (Tavan 2005).
Reasons for Abolition of the Dictation Acutely aware of the need for a firm Test commitment to a good neighbour policy with Asia, Australia took bold measures to revise those facets of immigration The reasons that necessitated the policy that were morally objectionable abolition of the dictation test have to be to Asians. Thus, in 1947, under Chifley’s understood within the context of gradual Labor government, it was announced policy transformations that culminated in that ‘non-Europeans admitted the demise (at least at the official level) temporarily for business reasons and who of the ‘White Australia’ policy. A had lived in Australia continuously for 15 combination of changing circumstances years could remain without the need to in post-World War II Australia led to the renew their permits periodically’ (Smith softening of the ‘White Australia’ policy, 1979: 40). This was, in fact, a de facto so that the hard-line approach of the arrangement for permanent residency dictation test was no longer tenable. without having to go through the Chief among these were deterioration of arduous process of a dictation test. Australia’s military security following the Under the previous policy arrangements: reduction in size of the British armed forces in Asia and the South Pacific; a migrant could happily disembark, pressure from newly independent Asian find work, buy a house, marry, have a countries; economic and political links family and adopt Australia as his with Asian countries; influence from the homeland, only to find that four years liberal-internationalist younger and eleven months later he could be generation; as well as the emergence of kicked out of the country as a community leaders with a pro-Asian prohibited immigrant because he failed a dictation test in a European outlook (Anderson 1998). The ‘White language (York 1992: 5). Australia’ policy was increasingly becoming unfavourable as a guiding The initiatives of the Chifley Labor philosophy of Australia’s diplomatic and government were to be followed by foreign policy relations with Asia and the more comprehensive reforms under the South Pacific. Similarly, because the Menzies Liberal government from 1949 to dictation test had been primarily 1966. In 1952, Japanese wives of adopted for the purpose of excluding Australian servicemen were allowed to people from the Asian region, the new be admitted, under permits initially valid socio-economic and political for five years, without undertaking the dispensation meant that the test had dictation test. Four modifications of rules fallen out of sync with post-war regarding non-Europeans were instituted Australian interests. As Smith (1979: 41) in 1956 as follows: (i) those allowed to observes, ‘the “White Australia Policy” remain without getting periodic became an increasing embarrassment extensions of their permits became as Australia’s relations with Asia eligible for citizenship; (ii) distinguished developed’, an issue that necessitated
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and highly qualified non-Europeans were It is also important to observe that the permitted to come to Australia and long and arduous journey leading to the remain indefinitely; (iii) easier conditions demise of the dictation test constitutes a applied to the admission of people of form of discourse that was mediated by mixed descent; and (iv) certain non- concerns over Asian appeasement and Europeans already in Australia on a Australia’s socio-economic and political temporary basis, who normally would interests. Political debates over the have been expected to leave, were abolition of the dictation test and the allowed to remain for humanitarian ‘White Australia’ policy were punctuated reasons (Anderson 1998). with discursive practices that gave the impression of a liberal veneer of For all the above categories of seemingly tolerant pronouncements, immigrants, the dictation test was no under which lay deep-seated anti-Asian longer a prerequisite. In pursuit of the sentiments. This is evidenced by the need to promote friendly relations with existence of more recent web-based Asian countries, the controversial organisations such as the Australian dictation test was finally abandoned in Nationalism Information Database that 1958 following the replacement of the was established in the 1990s ‘as an Immigration Restriction Act with the more educational resource to promote moderate Migration Act 1958 (Cth). Australia’s national identity and culture, Abolition of the dictation test in order to and to offer criticism of mass make migration control more palatable immigration, multiculturalism, and is one issue that was unanimously agreed Asianisation as major threats to our upon during the reading phase of the environment, our people, and our way of Migration Bill. Among other things, this life’ (Australian Nationalism Information new immigration policy unequivocally Database). In other words, reviews of removed the dictation test and replaced migration policies that culminated in the it with a permit system and also scrapping of the dictation test from expanded provisions for appealing Australia’s statutes were not entirely decisions on forced deportations. It is motivated by the desire to see an notable here that the abolition of the improvement in the treatment of non- dictation test may be seen as symbolic European racial groups. Rather, it was of Australia’s awareness that the post- the economic and strategic interests of war world was a very different one to Australia that were at the forefront. that which it had inhabited prior to World War II. A central feature of the gradually The 1950s decline in trade and emerging domestic and international economic relations with the United outlook was ‘the recognition that Kingdom forced Australian business Australia could no longer ignore its place people to look to other foreign markets in Asia and that our future was, and is, to sell their export goods. Owing to its intricately tied to the future of our region’ large population, increasing economic (York 1992: 10). The revamping of importance, and close proximity, Asia Australia’s racist immigration policy and began to look more and more attractive the eventual abolition of the dictation to Australian business and political test was in recognition of the bigger interests than ever before. Therefore, the socio-economic issues at stake in post- principles of economic rationalism and war Australia, which could not be easily political diplomacy overrode the sacrificed at the alter of supremacist doctrine of social liberalism and equality interests of ‘White Australia’. in influencing the abolition of the dictation test and the softening of the
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‘White Australia’ policy. It was, indeed in undermining language diversity. The two this context that in 1957 the immigration (multiculturalism and language diversity) of highly skilled and distinguished Asians, are inextricably intertwined, so much so who could easily become permanent that talking of one outside the other residents and citizens after five years, would be too academic and superficial. was encouraged (Tavan 2005). Preference for highly skilled migrants and In conclusion, it is important to point out business people continues to be that although the dictation test was emphasised in Australia’s immigration officially abolished in the 1950s, it did not policies to this day. die out completely. Rather, the principal features of the dictation test simply went Conclusion into hibernation and have recently been reinvented and re-written into Australia’s migration policy. The Australian ‘values’ Drawing on insights from the framework test for citizenship applicants introduced of CDA, this article has discussed and in 2007, which is exclusively conducted in reflected on the role and place of English, is a de facto English language language in the politics of Australian proficiency test brought in via the back immigration policies from 1901 to 1957. door. Because Australian national values The conceptual framework of CDA and national history are not necessarily enabled this article to bring into light the coded in a particular language, one is latent connections between the ‘White left wondering why the citizenship test Australia’ policy and the enduring cannot be in any language other than insistence on English as the sole official English. Introduced in the implicit context language of widest communication in of safeguarding Australian society Australia. It has been argued that far against outside threats such as terrorism from being designed to assess intending and the spread of ‘undesirable’ cultures, immigrants’ ability to ‘integrate’ into the Australian citizenship test clearly mainstream Australian society, the reflects the history of Australian attitudes dictation test was, in the main, a tool for towards non-European immigrants excluding unwanted people. Because discussed here. the dictation test was an integral part of the racist ‘White Australia’ policy, it could Under the new arrangement, Australian serve no other purpose than that of citizenship applicants have to camouflaging the restriction of non- successfully complete a citizenship test European immigration into Australia. before lodging an application. In other
words, the test is an eligibility criterion to The application of the test and the be met as the application cannot go ‘White Australia’ policy was, at least ahead unless and until one has passed it. initially, softened in line with the country’s The new citizenship testing regime new socio-economic and political constitutes another site of exclusion as interests in Asia and the South Pacific. English language proficiency becomes The dictation test was finally abandoned the first barrier that closes out in 1958 because it contradicted the spirit prospective Australian citizenship of multiculturalism that was a platform of applicants competent in languages successive Australian governments other than English. The results of the during the post-war period. In these Australian citizenship tests undertaken circumstances, insisting on the dictation between October 2007 and March 2008 test was no longer viable for it would be indicate that the success rate is lowest in pointless for the government to embrace the refugee stream (Commonwealth of multiculturalism while at the same time
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Australia, 2008). Given the low levels of References English language literacy among most refugee citizenship applicants, it is Anderson, C. 1998. The Demise of the possible that language, not lack of White Australia Policy , understanding of the Australian way of
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Dijk (ed.) Discourse as Social Sherrington, G. 1980. Australia’s Interaction , London: Sage. Immigrants: 1788–1978 , Sydney, Foucault, M. 1972. The Archaeology of London and Boston: George Allen Knowledge and the Discourse on and Unwin. Language . New York: Pantheon. Smith, R. L. 1979. Australian Immigration Fowler, R. 1996. On Critical Linguistics, in 1945–1975, in P. Brain, R. L. Smith and C. R. Caldas-Coulthard and M. G. Schuyers (eds.) Population, Coulthard (eds.) Texts and Practices: Immigration and the Australian Readings in Critical Discourse Economy , London: Croom Helm, 37– Analysis , London: Routledge. 8. Gane, M. and Johnson, T (eds.) 1994. Tavan, G. 2005. The Long Slow Death of Foucault’s New Domains , London: White Australia , Melbourne: Scribe Routledge. Publications. Gee, J. P. 1990. Social Linguistics and Van Dijk, T. and Wodak, R. 1993. Elite Literacies: Ideologies in Discourses , Discourse and Racism , Newbury Park, London: Falmer Press. CA: Sage. Gordon, C. 1980. Afterword in C. Gordon Van Dijk, T. 1996. Discourse, Power and (ed.) Power/Knowledge: Selected Access, in C. R. Caldas-Coulthard Interviews and Other Writings by and M. Coulthard (eds.) Texts and Michel Foucault , New York: Practices: Readings in Critical Pantheon. Discourse Analysis , London: Gramsci, A. 1971. Selections from the Routledge. Prison Notebooks , London: Lawrence Willard, M. 1967. History of the White and Wishart. Australia Policy to 1920 , Melbourne: Head, M. 1999. ‘The new “White Melbourne University Press. Australia” policy’ York, B. 1992. ‘Immigration restriction,
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
WHITENESS AND ANTI-DISCRIMINATION LAW—IT’S IN THE DESIGN
JENNIFER NIELSEN
Abstract Introduction
Although anti-discrimination laws have Australian common law recognises the supported much social change, they fundamental right to equality before the have been subjected to sustained law, but has never protected citizens critique by legal scholars. A significant from discrimination in their day-to-day concern is that the formal ‘same affairs; instead, this protection is made treatment’ standard promoted by the available in Anglo-Australian law only design of anti-discrimination law is through federal anti-discrimination Acts inherently problematic (Graycar & and those enacted in each state and Morgan 2004) because it gives territory jurisdiction (Rees et al 2008: 16- ‘apparent legitimacy to outcomes 9). These Acts are based upon which … in effect embed inequality’ international covenants to which (Kerruish & Purdy 1998: 150). In this Australia has become signatory, article, I critique the laws’ standard of providing a constitutional basis for the formal equality, first to demonstrate the federal laws, and arguably at least, the capacity of its ‘neutral’ response to inspiration for state and territory reproduce and stabilise dominant enactments. For instance, all of these privilege. Next, using the Anti- laws prohibit race discrimination, which Discrimination Act 1977 (NSW) as an corresponds to the principle of racial example, I argue that the Act’s ‘race- non-discrimination established in Article neutral’ and ‘colour-blind’ practice of 4 of the Convention on the Elimination of formal equality holds capacity to All Forms of Racial Discrimination (CERD) stabilise and reproduce whiteness. I then (1969). argue that substantive equality— advocated by most legal critics as Despite their achievements, these laws promoting ‘better’ forms of equality— have attracted sustained criticism (eg. also holds the capacity to reiterate Partlett 1977; Thornton 1990; Pace 2003) whiteness as it can be defined through and are desperately in ‘need of terms and conditions ‘designed for and renewal’ (Rees et al 2008: 3). However, skewed’ in favour of ‘the white much of this critical attention has been majority’ (Davies 2008: 317). I conclude directed to rights associated with that this holds great implications for gender, sexuality and disability, so that— legal scholarship that remains with notable exceptions (eg. Thornton selectively ‘colour-blind’ to the 1995; de Plevitz 2000; Gaze 2005; significance of racial ‘difference’, and Moreton-Robinson 2007)—discrimination call on mainstream legal scholars to and equality rights associated with race open spaces to interrogate the have attracted less sustained analysis. I implications of our raced position as make this point because, despite whites (Moreton-Robinson 2007: 85). parallels, there are important differences between these points of analysis.
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
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Moreton-Robinson (2007: 85) is, however, great significance of whiteness in that more particular in her concern about white people might expect to the (general) lack of attention by experience law differently to those mainstream 1 Australian legal scholars to constructed as ‘non-white’. However, issues related to race: it is, she says, this runs counter to the pervasive indicative of their ‘agency’ in the Western liberal philosophy that Anglo- ‘reproduction and maintenance of Australian law produces justice through racial hierarchies’. This demands that its commitment to the formally equal white legal scholars, like me, pay more treatment of all who come before it attention to race, but by doing more (Thornton 1990: 9); that is, in racial terms, than simply ‘dropping’ race into our law practices equality through being analyses. Instead, it demands that we ‘colour-blind’ to racial difference interrogate the implications of our own (Davies 2008: 317). However, instead of raced position as whites who benefit this ‘colour-blind’ practice, Uncle’s from the racial hierarchies reproduced lived knowledge of white law is of a and maintained by our (white) law. practice ‘skewed towards the white majority’ because it offers a This same point became apparent in my ‘protected and exclusive place of doctoral research on discrimination law, privilege’, to which non-whites gain in a statement made to me by an entry only on white terms and Aboriginal 2 man I consulted. When I conditions (Davies 2008: 315). And asked him why he thought discrimination fundamentally, the whiteness of Anglo- laws do not work, he replied: Australian law relates to ‘a colonial cultural condition’ (Anderson, 1996: 35) The laws are designed for them that involves a claim of the right to [white people]. It’s not for us … It’s ‘settle’ territory and to receive the not. It’s just taking things away privileges attendant upon occupation— (Uncle N, in Nielsen 2007: 123). including the expectation of laws’
protection—a claim based upon the While obviously ‘white’ 3 refers to colour violence of invasion and the falsehood and biological identity, like any ‘racial of white sovereignty (Watson 1997). identity’, whiteness is connected to the social meanings attributed to ‘race’ by The purpose of this article is to follow virtue of processes of ‘affiliation and Uncle’s concern about the function of external ascription’ (Doane, 2003: 9). whiteness in anti-discrimination law as But as Frankenberg (1993: 236–7) has indicated in its response to race pointed out, this process of social discrimination against Aboriginal construction operates to produce very peoples. ‘Whiteness’ is applied different meanings for whites than for throughout as its prime point of analysis those constructed within non-white to signify it as a ‘colonial cultural races, as whiteness ‘signals the condition’ that founds and reinforces production and reproduction of the ‘cumulative privilege’ that has been dominance rather than subordination, ‘quietly loaded up on whites’ (Fine et al, normativity rather than marginality, 1997: 57). My central argument is that and privilege rather then the ‘neutrality’ in the design of anti- disadvantage’. This is not to say that all discrimination law is actually a practice whites gain full access to the privileges of racial differentiation achieved of whiteness, but that all whites can through a selective ‘colour-blindness’ more readily claim its privileges than can that presents whiteness and white those constructed as ‘other’ and ‘non- privilege as normative (Moreton- white’. Indeed, Uncle pointed out the
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Robinson 2007: 84). First, I explain the differently according to their inequality is capacity of the prevailing formal not only permitted but required ’ (Judge standard of equality promoted by Tanaka in South West Africa Case , cited Australian anti-discrimination law to in Pritchard 1997: 44). In relation to the stabilise, endorse and reproduce right of racial non-discrimination, dominant privilege. Next, using the Anti- Recommendation XIV of the United Discrimination Act 1977 (NSW) as an Nation’s CERD Committee stated that example, I argue that the specific effect the Convention’s reference to of formal equality is to entrench—rather ‘discrimination’, relates ‘to invidious acts than challenge—the dominance of of discrimination, not acts which are whiteness and white privilege. In the aimed at achieving an equal enjoyment third part, I analyse substantive equality of rights’ (Jonas and Donaldson 2001: measures to suggest that they retain the 16). Consequently, in international law, potential to reiterate whiteness and the principle of racial non-discrimination white privilege. To conclude, I call on does not demand ‘identical treatment mainstream legal scholars to open without regard to concrete spaces in which we interrogate the circumstances’ because ‘positive’ forms implications and benefits of our raced of differentiation are integral to it, position as whites , because otherwise— provided they are designed objectively as Moreton-Robinson warns us—we will and reasonably to achieve ‘a legitimate only sustain the racial hierarchies aim’ or they support the ‘distinct’ rights reproduced and maintained by our law. of Indigenous peoples (Pritchard 1997: 45–6). Indeed, Pritchard argues this A ‘Formal’ Model of Equality principle is so fundamental to the achievement of human dignity that it is one of the ‘least controversial examples’ There are 13 separate pieces of anti- of an international legal peremptory discrimination legislation in Australia, four norm, that is, an ‘overriding’ principle of enacted by federal parliament, 4 and international law notable for its one in each state 5 and territory 6 ‘indelibility and non-derogability’ (1997: jurisdiction. These Acts ‘follow a similar 42–3). Therefore, one might expect pattern and operate, legally, in the CERD signatories—like Australia—to same way’, and share a lack of clarity in promote the standard of racial equality their policy goals (Rees et al 2008: 3-4) that international jurists espouse. Though none of them specifically defines ‘equality’, each Act requires However, a fundamental concern non-discrimination to be achieved shared by critics of Australian anti- through treatment that is ‘comparable discrimination legislation is that it has to’, thereby instilling ‘a struggle for been consistently interpreted by the equality’ into anti-discrimination law courts as promoting formal equality as mechanisms. However, the point of this the primary standard (eg. Gerhardy v struggle remains unclear until we ask: Brown (1985); Purvis v New South Wales ‘equal to what?’ (Watson 1998: 38). (2003)). Unlike substantive equality,
formal equality is concerned only with In international law, the answer to this form—not outcome—so that all types of question is founded in the theory of differentiation are completely substantive equality. This involves impermissible (Thornton 1990: 9). For ‘relative’—rather than ‘absolute’— example, in Gerhardy v Brown (1985), equality that treats ‘equally what are the High Court examined the type of equal and unequally what are unequal’: equality protected by the prohibition of it holds that treating ‘unequal matters
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direct race discrimination in s 9(1) of the disadvantage’. But, as Sadurski (1986a: Racial Discrimination Act 1975 (Cth) 136) argued at the time, the Act’s (RDA). It concluded that the legitimacy could have been founded in Pitjantjatjara Lands Rights Act 1981 (SA) the principle of racial non-discrimination contravened s 9(1) because it enabled itself, in that the effect of the Act on non-Pitjantjatjara people to be treated non-Pitjantjatjara people: differently because of their race (by having to apply for entry permits to did not amount to the impairment of Pitjantjatjara lands). But how else could their dignity by exhibiting racial the Pitjantjatjara peoples manage their prejudice against them, by country? Don’t other landowners have a stigmatising them as inferior, [or] by perpetuating the existing patterns of legal right to limit entry? As these disadvantages. questions suggest, the Court’s conclusion indicates why formal Likewise, most Australian critics equality’s environment of ‘sameness’ is advocate substantive equality as the inherently problematic (Graycar & ‘better’ legal standard because it fosters Morgan 2004) and defeats ‘the an environment that responds to underlying philosophy of non- difference when justice requires—to discrimination’ because it gives prohibit ‘invidious’ discrimination—while ‘apparent legitimacy to outcomes simultaneously enabling a response to which … in effect embed inequality’ historical disadvantage and to the (Kerruish & Purdy 1998: 150). contexts in which inequality operates (Graycar & Morgan 2004). Therefore, In Gehardy , the Court did, however, go making ‘appropriate’ differentiations is on to conclude that the Land Rights Act an implicit—not a separate—process was valid on the basis that it was a within the substantive equality standard. ‘special measure’ permitted by s 8(1) of the RDA. Section 8(1) endorses ‘special However, the Court refused to apply this measures’ as defined by CERD: standard of racial equality in Gerhardy because it viewed Pitjantjatjara land [Measures taken] for the sole rights as valid only on account of purpose of securing adequate advancement of certain racial or ‘historical disadvantage’, rather than on ethnic groups or individuals requiring account of the Pitjantjatjara peoples’ such protection as may be distinct rights based upon their enduring necessary in order to ensure such connection and relationship to their law groups or individuals equal and country—rights that could not be enjoyment or exercise of human claimed by any other group. As Sadurski rights and fundamental freedoms (1986b: 6–8) lamented shortly shall not be deemed racial afterwards, the Court wasted an discrimination, provided, … [these opportunity to establish ‘standards for measures do not] … lead to the maintenance of separate rights for future legitimate “positive different racial groups and that they discrimination”’, and ignored its ‘duty to shall not be continued after the examine the substantial issues of the objectives for which they were taken limits of legitimate racial distinctions and have been achieved (1969: Art 4(1)). the indicia of discrimination’ because it was unwilling: That is, the Land Rights Act’s different treatment of rights on the basis of race to engage in a morally serious was valid at law because this treatment discussion that potentially could was applied in order to redress ‘historical have serious consequences and
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carry a threat to the stability of state (s 119). Essentially, the ADA creates dominant community values and a jurisdiction that is ‘about education’, dominant patterns of privileges. as it was founded in a ‘general consensus that criminal sanctions are Indeed, Sadurski exposes what the Court ineffective in carrying out’ its purpose really ignored, namely the capacity of (Partlett 1977: 153). 9 However, I argue formal equality to stabilise, endorse and that three main features of the Act’s reproduce dominant privilege. In the design demonstrate that it is not race- next section, I investigate the neutral but instead is structured to implications of this capacity. Using the support whiteness and its attendant Anti-Discrimination Act 1977 (NSW) as an privilege. example. I argue that the ‘neutrality’ claimed as the effect of the Act’s formal First, the Act supports whiteness by equality design is instead a practice of placing the privileges it produces selective racial differentiation that outside the scope of the definitions of renders whiteness and its attendant what is race discrimination: the Act fails privilege the Act’s normative standard. to prohibit class-based discrimination (Thornton 1990: 14), the definitions of Formal Equality Entrenches direct and indirect race discrimination Whiteness and White Privilege focus only upon ‘disadvantage’, and neither direct nor indirect race 10 The Anti-Discrimination Act 1977 (NSW) discrimination are unlawful per se as (ADA) does not explicitly state its they are actionable only when they 11 purpose (or objects), although its long occur in specific areas of public life. title describes it as an Act to make Not only does the Act’s definition of various grounds 7 of discrimination race discrimination deflect attention unlawful ‘in certain circumstances’ to from the ‘ordinary’ social ‘advantages’ promote ‘equality of opportunity enjoyed by whites (see McIntosh 1992; between all persons’ (s 1). It defines two Davies 2008: 312–16), it also remains separate forms of racial discrimination 8— ‘artificially and permanently’ separated direct race discrimination, the most from the system of white privilege commonly litigated form, which prohibits founded by and inherent within the less favourable treatment of people prevailing capitalist system (Thornton because of their race (s 7(1)(a)), and 1990: 14–15). indirect discrimination, which prohibits unreasonable conditions or The Act’s definitional scope is further requirements that have a reduced because all forms of disproportionately negative effect upon discrimination are defined as events that those of a particular racial group (s occur as a result of separable 7(1)(c)). Like the RDA, it also enables characteristics: race, gender, sexuality, special measures to be taken in favour and so on. Thornton (1990: 1) has long of certain groups, including Aboriginal argued that the ‘benchmark’ for these peoples (ss 126 & 126A). It establishes characteristics is the ‘white, Anglo- the Anti-Discrimination Board (the Board) Celtic, heterosexual male who falls (s 71 & Part 8) as the statutory body with within acceptable parameters of authority to handle discrimination physical and intellectual normalcy, who complaints and perform a range of supports, at least nominally, mainstream educative functions to promote the Christian beliefs, and who fits within the elimination of discrimination and middle-to-the-right of the political develop human rights policy for the spectrum’. Although complaints can be
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based on multiple grounds, each political and economic impact of race ground must be pleaded and proved discrimination upon Aboriginal peoples separately, so that complainants are as compared to those of other ‘non- forced to ‘pluck out’ singular aspects of white’ heritages (Gaze 2005: 174–5). And themselves by reference to the significantly, it gives no account to the benchmark person and present it as ‘the different—and privileged —experience meaningful whole’ that eclipses other of race by whites. Rather, the Act founds parts of their being (Lorde, in Harris 1990: whiteness as the invisible standard by 586). Yet this ‘meaningful whole’ remains which it measures the way raced inherently limited in scope, because the ‘others’ ‘should’ be treated. The definition of race discrimination is consequence is that complaints of racial framed in ‘race-neutral’ language that discrimination by Aboriginal peoples conflates ‘race’ to a ‘universal’ may enable them to ‘achieve’ the experience. For instance, in the High ‘same treatment’ as white people, but Court’s decision in Purvis v New South cannot involve any challenge to the Wales (2003), Justices McHugh and Kirby systemic privileges already enjoyed by commented that: whites (Nielsen 2007: 123–9). 13
[d]isability discrimination is ... The second aspect of the Act’s design different from sex and race that reinforces whiteness is its focus on discrimination [because] … its forms the ‘individual’, which confines are various and personal to the complaints to forms of race individual while sex and race are discrimination involving ‘discrete’ attributes which do not vary ’ (at [86]; emphasis added). experiences. This is because complaints are limited to acts of discrimination that This ‘universal’ approach indicates that occur within the 12 months proceeding the Act is designed to respond most the date a complaint is lodged (s effectively to what Duclos (1993: 42) 89B(2)(b)), which confines the describes as a ‘paradigmatic victim’ legislation’s attention to racialised acts who ‘conforms’ to and is ‘part of the occurring in the ‘present’, not the ‘past’. “centre” except for his race’. For For example, an Aboriginal person may example, an Aboriginal woman experience systemic race discrimination complaining about sex discrimination in the labour market, resulting in a would typically need to ‘establish that résumé that implies a ‘broken’ and she is just like’ a white woman, even ‘poor’ work history. Any employer who though ‘it is very possible that the refuses to employ them as a result discrimination [she experienced] remains immune from a complaint of occurred precisely because she was race discrimination because the not’ a white woman (Duclos 1993: 43– person’s work history is placed outside of 4). 12 Thus, Duclos suggests that non-white the employer’s ‘individual’ experience will naturally be distorted by responsibility—even though that the Act’s ‘universally’ defined racial employer’s denial of employment scope and definitions, because it must perpetuates systemic racism (Nielsen be conveyed in accordance with the 2007: 161–91). Act’s white centre. Clearly, this ‘universal’ scope cannot acknowledge Moreover, the Act fails to empower the that disparities exist in the social, political Board to intervene, investigate, and economic experience of different prosecute or punish acts of race racial groups (Parashar 1994: 84–5), nor discrimination or to investigate systemic account for the variation in the social, racism (Partlett 1977: 156–8 & 171–3).
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Although these are longstanding the complaint system. Initially this is concerns, the Board remains because the choice to pursue a empowered to act only when an complaint is a significant one: the law affected individual lodges a complaint requires those who do so to be (ss 90–91A).14 This is significant, as the ‘sufficiently informed, motivated … following example demonstrates, empowered’ and resourced to use its because the law struggles to respond ‘complex legal machinery’ (Bertone & even to ‘individual’ acts that compound Leahy 2003: 113). Although this inevitably to create a racist system overall. As part involves ‘great personal cost’ to of the consultations for my doctoral Aboriginal people (Moreton-Robinson thesis, the Board’s complaints staff told 2007: 93) as well as legal costs, the Act’s me about the difficulty they faced when formal equality makes them equally contacted about a recruitment agency entitled to pursue their complaints as that was ‘discriminating against those people who enjoy the privileges of [Aboriginal] people constantly’ whiteness. because: Whiteness is also supported as a result of [all we can do is act on individual the Act’s emphasis on ‘education’ and complaints, then in theory, every ‘persuasion’, because conciliation—a single person in this area who is process that rests primarily on mutual discriminated against by [this agreement—is the primary dispute agency] has to make a complaint, resolution process used to resolve and we deal with each of them 15 individually, without recognising that complaints. Even though the it might be coming from this one complexities of litigation might suggest source. … It would be much easier that the focus on conciliation is a good to just be able to address the source thing,16 a successful conciliation does of the discrimination (in Nielsen 2007: not ‘prove’ that the discrimination 134). alleged occurred. Instead, it might result in an explanation, an apology, action to The combined effect of the Act’s restore a person’s rights, monetary or temporal scope and the Board’s inability other forms of compensation or to initiate action without a complaint is development and/or improvement of that systemic racism is structurally equal employment opportunity policies defined as an ‘Aboriginal’ problem— (NSW Anti-Discrimination Board 2008: 15). that is, one that does not implicate However, there are no guarantees white people. Consequently, Aboriginal because the Act is designed to use people not only bear full responsibility for ‘gentle persuasion’ to convince challenging the effects of systemic respondents to change their practices racism, but may only challenge narrowly or policies rather than penalties that defined versions of problems that occur would cause them ‘pain’ and thus deter in the ‘present’. This reiterates the them from repeating acts of race normativity of the accumulated discrimination (Distaff 1994: 5, 9). privileges of whiteness, as these Moreover, the Act does not define what privileges are immunised from challenge action should—or at least could— by being ‘buried deep within the social constitute a ‘successful’ conciliation, psyche’ where their ‘longevity’ accords and does not establish any criteria to vet them ‘the status of a self-serving “truth”’ the outcomes achieved at conciliation (Thornton 1995: 84). (Distaff Associates 1994: 41). Instead, all that is required is that the complainant Finally, the Act’s support of whiteness is accepts the respondent’s proposals for firmly entrenched through the design of
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resolution (if any and whatever their the racialised difference founded in the form) and/or agrees to ‘discontinue’ the system of white privilege. Indeed, complaint. whiteness is the Act’s (unstated) normative standard because ultimately, Clearly, this ignores the likelihood of a all that the Act requires is that Aboriginal ‘structural inequality’ between the people be treated like white people complainant and respondent (Thornton (Nielsen 2007: 192–210). However, I think 1995: 88), and that this inequality can be it unlikely that Aboriginal peoples would used to apply pressure on complainants recognise this as a form of equality. to reduce their ‘demands on the Instead, I think it more likely that, like respondent wherever possible’ (Distaff, Watson (2005), they would recognise this 1994: 39). What this grants to white standard as a form of more assimilation . respondents, then, is a structurally superior position in conciliation because Does Substantive Equality ‘undo’ nothing can happen without their Whiteness and Privilege? consent . For instance, some Aboriginal people have reported using the complaint system as a way of educating The question unexplored so far is white people about racism (eg. Distaff whether the formal standard inherent in Associates 1994: 74); but they can only anti-discrimination law is moderated by achieve this if white people want to the inclusion of indirect discrimination learn. According to the discrimination and special measures provisions, law practitioners I interviewed, this rarely because these types of provisions can happens. As one commented: ‘I’ve promote substantive forms of equality. never seen … the lights go on and somebody go “oh yeah I’m a racist”’, As indicated above, indirect because more typically, respondents discrimination provisions prohibit ‘settle it on a “commercial” basis to get conditions or policies that cause rid of it, on the basis of no admission of disproportionate disadvantage to liability and confidentiality’ (in Nielsen members of a particular group. Thus, 2007: 136–38). Yet, again, the system’s they may promote substantive equality standard of formal equality positions because they enable scrutiny to be Aboriginal complainants as formally applied to the effect of facially neutral equal to white respondents, all the while standards. However, the reach of the according those respondents a indirect discrimination provisions is structural advantage that protects and inherently limited because a condition reproduces their whiteness and their or requirement, despite causing privilege. This suggests that the ‘best’ the disadvantage, is not unlawful if it is also Act can offer an Aboriginal person is the reasonable . ‘opportunity’ to persuade white people to release their grip upon privilege In Anglo-Australian law, reasonableness through a process that actually supports is an ‘objective’ criterion, by which the white privilege because it imposes no courts ‘weigh the nature and extent of demand that it must change. the discriminatory effect’ of the ‘policy, requirement or condition against the Collectively, these features in the ADA’s reasons advanced’ in its favour design reveal that, while formal equality (Secretary, Department of Foreign Affairs dictates a ‘neutral’ response that and Trade v Styles (1989): 624). Not ignores racial difference—that is, colour- surprisingly, this criterion attracts blindness—the Act is only truly blind to significant criticism. For instance, Pace (2003: 3) argues it involves a
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’questionable claim to universal Therefore, I doubt that complaints of objectivity’: indirect race discrimination achieve the ‘better’ equality outcome asserted The reasonable person standard through substantive equality because applied by judicial decision-makers is the concept of ‘reasonableness’ assumed to provide a code of represents a ‘universalized order’ conduct that is commonly (Watson 2007: 96) infused with white understood. The reasonable person cultural values. is said to be neutral: devoid of gender, class, race, sexuality or other immutable characteristics. What this However, as noted above, ‘special approach fails to recognise, measures’ work in another way in that however, is that there is in fact no they give legitimacy to different self-evident, commonsense, treatment where it is applied to (favour) consensus view about what is a particular group so as to redress reasonable. The judgment as to historical or other disadvantage. That is, what is reasonable is clearly going to they could promote substantive equality depend upon the position and as they are said to be designed to perspective from which the question is viewed. achieve ‘equal’ outcomes. But even though this focus on outcome can Pace highlights where the fundamental promote substantive equality, the more difficulty in proving indirect important question is whether the discrimination complaints lies, in that outcomes it enables offer enough . what is reasonable tends to be viewed Because the inherent difficulty in from the respondent’s perspective. For ‘reasonableness’ also lingers in special example, Thornton (1993: 99) points out measures: who decides what form they that the anti-discrimination tribunals’ take and what ‘disadvantage’ makes approach to judging whether or not them necessary and legitimate? employment decisions are ‘reasonable’ Monture (1986: 161–2) highlights this by involves ‘a presumption in favour’ of an explaining that describing Indigenous employers’ ‘prerogative’ to manage peoples as ‘disadvantaged’ is: and make decisions in their workplace. As I have argued elsewhere (Nielsen a nice, soft, comfortable word to describe dispossession, to describe a 2007: 252), mainstream workplace situation of force whereby our very culture and practice is infused with white existence, our histories, are erased cultural values and assumptions, even continuously right before our eyes. though this white racial content is Words like disadvantage conceal obscured by courts most often racism… interpreting it as the ‘ordinary’, ‘standard’ way things are done—so [Because Indigenous Peoples] are much so that Aboriginal workers are only disadvantaged if you are using simply expected to reconcile themselves a White middle class yardstick. I to white workplace culture. quite frequently find that White middle class yardstick is a yardstick Consequently, when employment of materialism. … [For us it] is not conditions or decisions are scrutinised in what you are that counts, it is who an indirect race discrimination you are. So when the world of the complaint, they are most likely to be dominant culture hurts me and I blanched of their racial content through cannot take it anymore, I have a being read as ‘ordinary’ and/or place to go where things are ‘commonsense’, which judges different. I simply do not understand consistently interpret as reasonable . how that is disadvantaged .
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Monture’s point is exemplified by Aboriginal property rights as superior to examining a feature of the Federal or more ‘special’ than ‘normal’ property Government’s ‘emergency response’ to rights, that is, those rights defined by the violence and child abuse within certain white ‘yardstick’ of white sovereignty Northern Territory Aboriginal (Watson 1997). And the current communities—the ‘Intervention’ (see government has also endorsed this logic Martiniello 2007). The legislation by announcing its commitment to underpinning the Intervention extending the Intervention; 21 therefore, specifically reduces and/or negates like its predecessor, this government is Aboriginal rights, including by permitting committed to measures defined through the compulsory acquisition of and other ‘comfortable’ words concealing reduction of certain land tenure rights. 17 normative white standards that The irony in this approach is that the perpetrate assimilation (Watson 2005). rights being taken are ‘special This is the exact problem Monture measures’: like Pitjantjatjara land rights, identifies. the rights affected are founded (in Anglo-Australian law) in Northern What this discussion indicates is that, Territory land rights legislation. 18 while both indirect discrimination and special measures can support a Nonetheless, the legislation would have substantive model of equality, each us believe that the Intervention itself, retains the capacity to reiterate functions as a ‘special’ measure 19 whiteness. This is because the outcomes because it redresses ‘Aboriginal produced by both are typically disadvantage’. Apparently, those who measured through a ‘comfortable’—yet drafted this legislation were undeterred selectively colour-blind—standard that by its absurd logic: that is, the conceals the yardsticks of whiteness and Intervention has the effect of securing racism. This suggests that the inclusion of for those within these Aboriginal substantive equality provisions does not communities ‘ equal enjoyment or automatically absent whiteness from exercise of [their] human rights and laws’ equality, but may instead further fundamental freedoms’ (CERD 1969: art entrench it as laws’ (unstated) 1(4), emphasis added) by reducing normative standard. Aboriginal property rights. And though it did not specifically interrogate the The ‘Agency’ of Legal Scholarship Intervention’s status as a ‘special measure’, the High Court recently I have argued that the formal equality endorsed the logic that supports it, by that underscores Australian anti- deciding that there is nothing so discrimination law functions as a form of ‘distinct’ or unique about these ‘race-blindness’ that views all forms of Aboriginal land tenure rights that racial differentiation as inherently precludes them from being compulsorily discriminatory. But as indicated by my acquired by the Crown—just like white analysis of the ADA, the effect is neither property rights .20 Therefore, just as it colour-blind nor race-neutral, because reasoned in Gerhardy , the High Court the Act fixes ‘equality’ as something refused to measure the property rights of ‘symbiotic with the prevailing [racial] these Aboriginal communities through order of social relations, and the interests their enduring connection and of those who are dominant within it’ relationship to their law and country— (Bakan 1991: 454). As a result, the design the claim no other group can make— of the Act is only truly blind to the because it refused to understand racialised difference founded in the
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systemic privileges accrued through difference, and we need to ‘know’ the whiteness. Accordingly, the ‘colonial full context both of racial inequality and cultural condition’ of whiteness is not of ‘historical disadvantage’. None of only the ADA’s invisible measure, but its these things are just about ‘others’. protection appears to be the Act’s central concern. Moreover, as And, given the commitment of legal suggested by my analysis of indirect scholars to issues of justice and equality, discrimination and special measures, why are mainstream legal analyses whiteness is not necessarily absented failing to engage with the implications of from or even moderated within laws’ our whiteness? In part, I think this is the ‘equality’ simply by including provisions result of the voices to which we are and designed to promote substantive are not willing to give attention. As equality. Both of these provisions may Watson (2007: 107) says: reiterate whiteness because the terms and conditions that define what is The exclusion of other narratives ‘substantive’ can be ‘designed for and works to silence other possibilities, skewed’ in favour of ‘the white one being the role of the majority’ (Davies 2008: 317). grandmothers. When the frame remains limited, so too does our
search for solutions. But rather than giving the ‘answers’, I think my analysis opens other For instance, many Indigenous scholars questions: who is our law designed for articulate theories of difference rather and do our mainstream legal analyses than ones simply of ‘equality’. As I of equality work to reveal that? Uncle understand it, they do so because was very clear to me about who the law Aboriginal peoples ‘have never wanted is designed for, and Moreton-Robinson is to be the same’ because it is very clear that typically our work does ‘difference, and the right to be different, not reveal that (2007: 85). Indeed, each that is central to the idea of an time we omit ‘race’ from our discourse, Indigenous struggle, the sameness is we retain our agency with laws’ killing’ (Watson 2001: 35). This struggle ‘reproduction and maintenance of cannot be achieved through sameness racial hierarchies’ (Moreton-Robinson with white people, whether in form or 2007: 85) by remaining selectively outcome, because instead, it is a ‘colour-blind’ to the significance of struggle to hold onto the core of racial ‘difference’ and skewed in our Aboriginal difference—the ‘freedom to understanding of the context of be myself, to honour the mother, to inequality consequent upon ‘historical honour the traditions and culture that disadvantage’. Therefore, we (whether we have carried since time immemorial unwittingly or not) continue to re-assert … without fear of recriminations’ and stake white claims through (Watson 1996: 108)—Aboriginal upholding the ‘invisibility’ and sovereignty and self-determination. supposed ‘neutrality’ of the whiteness of law. Consequently it is important how Clearly this is not a dialogue about we ‘know’ when and why and whose formal equality—but neither is it is a racial difference matters; while I agree dialogue based simply in a theory of that substantive equality theory offers a substantive equality. Instead, it is a more capable model to enable conversation based on the premise that responses to equality, to apply it ‘equality is better measured against accurately, we need to ‘know’ when ourselves’ as Aboriginal peoples (Watson justice requires a response to racial 1998: 38). But more particularly here, this
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conversation is not heard often within article, and to Trish Luker for her support mainstream legal discourse even and editorial comments. though, as Moreton-Robinson (2007) warns, by remaining closed to ‘other’ References conversations, we continue an agency that contradicts our calls for ‘justice’. Anderson, I. 1995. Reclaiming Tru-ger-
nan-ner: De-Colonising the Symbol, What this should suggest to those of us in Van Toom, P. and English D. (eds), who are members of the mainstream Speaking Positions: Aboriginality, legal academy, is the need for us to Gender and Ethnicity in Australian develop greater reflexivity in our Cultural Studies , Melbourne: Victoria practice, to open ourselves to spaces in University of Technology. which different epistemologies can Bakan J.C, 1991. Constitutional meet and disrupt our own (Moreton- Interpretation and Social Change: Robinson 2000: xxv). But our purpose in You Can’t Always Get What you opening these spaces must not simply Want (Nor What You Need), in Devlin be to enable us to understand ‘others’. R.F. (ed), Canadian Perspectives on Instead, our purpose should be to better Legal Theory , Toronto: Edmond understand and interrogate our own Montgomery Publications Limited. race consciousness—that is, ourselves Bertone S. and Leahy M. 2003. and the implications of our raced ‘Multiculturalism as a conservative position as whites : ideology: Impacts on workforce
not to strengthen the concept of the diversity’, Asia Pacific Journal of white race, but rather to call it into Human Resources , 41(1), 101. question—to demystify white power, Davies, M. 2008. Asking the Law and to remove the certainty of the Question , 3 rd ed, Pyrmont: LawBook comfortable place white people Co. occupy in the world [and in our law] de Plevitz, L. 2000. The Failure of Indirect (Davies 2008: 318). Discrimination Legislation to Deter Systemic Racism against Aboriginal Author Note People, Unpublished PhD Thesis, Queensland University of Dr Jennifer Nielsen is a Senior Lecturer in Technology. the School of Law & Justice at Southern Distaff Associates, 1994. A Better Cross University. Balance—A Review of the Complaints Handling Processes Acknowledgments under the Sex, Racial and Disability Discrimination Acts , Camperdown, NSW: Distaff Associates. I would like to acknowledge and pay Doane, W. 2003. Rethinking Whiteness respect to the Bundjalung Nation, the Studies, in A. Doane and E. Bonilla- sovereign peoples of country where I Silva (eds), White Out: The work and live. I also acknowledge and Continuing Significance of Racism , thank Associate Professor Irene Watson New York & London: Routledge. and Professor Jenny Morgan, as both Duclos N. 1993. ‘Disappearing women: contributed significantly to the racial minority women in human development of this work. Thanks also to rights cases’, Canadian Journal of the anonymous reviewers for their Women and the Law , 6, 25. comments on an earlier version of this
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Fine, M. et al (eds). 1997. Off White: — 2007. ‘Witnessing the workings of Readings on Race, Power, and white possession in the workplace: Society , New York: Routledge Leesa’s testimony’, Australian Frankenberg R. 1993. White Women, Feminist Law Journal , 26, 81. Race Matters: The Social Nielsen, J. 2007. An Intractable Problem: Construction of Whiteness , London: The Endurance of Settled White Routledge. Privilege in Mainstream Work Gaze B. 2005. ‘Has the Racial Cultures, Unpublished PhD Thesis, The Discrimination Act contributed to Melbourne Law School, Melbourne. eliminating racial discrimination? NSW Anti-Discrimination Board, 2008. Analysing the litigation track record Annual Report 2007-2008 , Sydney: 2000–04’, Australian Journal of NSW ADB. Human Rights , 11(1), 171. Pace, F. 2003. ‘Concepts of Graycar, R. and Morgan, J.2004. “reasonableness” in sexual ‘Examining understandings of harassment legislation: did equality: one step forward, two steps Queensland get it right?’, back?’, Australian Feminist Law Queensland University of Technology Journal , 20, 23. Law Journal , 3(1), 1. Harris, A. P. 1990. ‘Race and essentialism Parashar, A. 1994. ‘The anti- in feminist legal theory’, Stanford discrimination laws and the illusory Law Review , 42, 581. promise of sex equality’, University of Jonas, W. and Donaldson, M. 2001. The Tasmania Law Review , 13(1), 83. Legitimacy of Special Measures, in S. Partlett D. 1977. ‘The Racial Garkawe, L. Kelly and W. Fisher (eds), Discrimination Act 1975 and the Anti- Indigenous Human Rights , Sydney: Discrimination Act 1977: aspects and The Federation Press. proposals for change’, University of Kerruish, V. and Purdy, J. 1998. ‘He “look” New South Wales Law Journal , 2, honest—big white thief’, Law/ Text/ 152. Culture , 4(1), 146. Pritchard, S. 1997. Native Title in An Martiniello J., 2007. ’Howard’s new International Perspective, in RIHSS, Tampa: Aboriginal children Sharing Country—Land Rights, overboard’, Australian Feminist Law Human Rights and Reconciliation Journal , 26, 123. After Wik , Sydney University of McIntosh, P. 1992. White Privilege and Sydney. Male Privilege: A Personal Account Rees N., Lindsay K., & Rice S., 2008. of Coming to See Correspondences Australian Anti-Discrimination Law: Through Work in Women’s Studies, in Text, Cases and Materials , Andersen, M.L. and Hill Collins, P. Annandale: The Federation Press. (eds), Race, Class and Gender: An Sadurski, W. 1986a. ‘Equality before the Anthology, Belmont (California, USA): law: a conceptual analysis’, Wadsworth Publishing Co. Australian Law Journal , 60, 131. Monture, P. 1986. ‘Ka-Nin-Geh-Heh-Gah- — 1986b, ‘ Gerhardy v Brown v the E-Sa-Nonh-Yah-Gah’, Canadian concept of discrimination: reflections Journal of Women and the Law , 2, on the landmark case that wasn’t’, 159. Sydney Law Review , 11, 5. Moreton-Robinson, A. 2000. Talkin’ Up to Thornton, M. 1990. The Liberal Promise: the White Woman—Indigenous Anti-Discrimination Legislation in Women and Feminism , St Lucia: Australia , South Melbourne: Oxford University of Queensland Press. University Press.
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—— 1993. ‘The indirection of sex Gerhardy v Brown (1985 159 CLR 70. discrimination’, Tasmanian Law Purvis v New South Wales (Department Review , 12, 88. of Education and Training) [2003] —— 1995. Revisiting Race, in Racial HCA 62. Discrimination Commissioner (ed), The Racial Discrimination Act—A Secretary, Department of Foreign Affairs Review , Sydney: Human Rights and and Trade v Styles (1989) 88 ALR 621. Equal Opportunity Commission. Western Australia v Commonwealth Thornthwaite, L. 1993, ‘The operation of (1995)183 CLR 373. anti-discrimination legislation in New South Wales in relation to Wurridjal v The Commonwealth of employment complaints’, Australian Australia [2009] HCA 2. Journal of Labour Law , 6, 31. Watson, I. 1996. ‘Law and Indigenous Notes Peoples: the impact of colonialism on indigenous cultures’, Law in Context: Cross Currents , 107. 1 I use the term ‘mainstream’ to direct —— 1997. ‘Indigenous Peoples’ law- attention to the dominant group ways: survival against the colonial amongst the legal academy, that is, state’, Australian Feminist Law those of us who are white. Journal , 8, 39. 2 Referring to the First Nations Peoples of —— 1998. ‘Power of the muldarbi, the Australia. ‘Indigenous’ is used to signify road to its demise’, Australian First Nations peoples, irrespective of Feminist Law Journal , 11, 38. geographic origin. —— 2001. One Indigenous Perspective 3 I use ‘white’ generally to refer to on Human Rights, in Garkawe, S. peoples with Anglo- and European- Kelly, L. and Fisher, W. (eds), Australian racial identities. Indigenous Human Rights , 4 Racial Discrimination Act 1975 , Sex Monograph Series No 14, Sydney: Discrimination Act 1984 , Human Rights Sydney Institute of Criminology. and Equal Opportunity Act 1986 , —— 2005. ‘Illusionists and hunters: being Disability Discrimination Act 1992 , and Aboriginal in this occupied space’, Age Discrimination Act 2004 . Australian Feminist Law Journal , 22, 5 Anti-Discrimination Act 1977 (NSW), 15. Equal Opportunity Act 1984 (SA), Equal —— 2007. Aboriginal women’s laws and Opportunity Act 1984 (WA), Anti- lives: how might we keep growing Discrimination Act 1991 (Qld), Equal the law?’, Australian Feminist Law Opportunity Act 1995 (Vic), and Anti- Journal , 26, 95. Discrimination Act 1998 (Tas). 6 Discrimination Act 1991 (ACT) and Anti- Conventions and Cases Discrimination Act 1992 (NT). 7 The grounds are: race, sex, marital status, pregnancy, family responsibilities, International Convention on the sexuality, transexuality, disability, age Elimination of All Forms of Racial and sexual harassment. Discrimination (CERD), opened for 8 It also prohibits racial vilification, that is, signature 21 December 1965, 660 public acts that incite hatred, serious UNTS 195 (entered into force 4 contempt, or severe ridicule towards January 1969). those of a particular racial group (s Baird v State of Queensland [2006] 20C), while those that involve or incite FCAFC 162. threats of personal harm or harm to
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property are made a criminal offence (s 21 Karvelas, P. ‘Macklin extends 20D). intervention’, The Australian , Friday 6 9 The Act creates few offences: eg. March 2007, 1. serious racial vilification, publishing discriminatory advertisements (s 51), and (since 2005) a number related to involvement in conciliation proceedings. 10 Compare this with s 9(1) RDA, which creates a cause of action in relation to ‘any act involving a distinction, exclusion, restriction or preference’ (see Baird v State of Queensland 2006). 11 Paid work relationships (ss 8–13), education (s 17), the provision of goods, services, and facilities (s 19), housing/ accommodation (s 20), registered clubs (s 20A), and in the activities of certain public bodies and government (ss 119– 121; though each is qualified by ‘exceptions’ which permit racial differentiation (ss 8(3), 14–16, 54 & 56). 12 See also Moreton-Robinson 2007. 13 See further, de Plevitz 2000. 14 Section 7 requires an individual to be affected before any contravention of the Act can be alleged. 15 See Nielsen (2007b: 129–32). 16 Race discrimination is criticised as extremely difficult to prove (Thornton 1995; Gaze 2005), and about two thirds of litigated complaints will fail (Nielsen 2007b: 138). 17 . Part 4, Northern Territory Emergency Response Act 2007 (Cth). 18 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). See Western Australia v Commonwelath (1995). 19 Northern Territory Emergency Response Act 2007 (Cth): s 132(1). The Act also immunises the Intervention from challenge under the RDA: s 132(2). 20 Wurridjal v The Commonwealth of Australia [2009] HCA 2; but see Justice Kirby’s discussion which gives an expanded notion of Aboriginal property rights, though he also contains them within the paradigm of white sovereignty ([307]–[308]).
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ACRAWSA e-journal, Vol. 4 , No. 2, 2008
PINNED LIKE A BUTTERFLY: WHITENESS AND RACIAL HATRED LAWS
KAREN O’CONNELL
Abstract she has recently found out that her children may be taken from her into This article explores ideas of whiteness care, partly because of information and racial harm by focusing on an area given by the children’s father to of law in which these themes are pivotal: government workers. As well as being the regulation of racial hatred. Racial tired, hot and stressed, Ms Power is on a hatred provisions in anti-discrimination methadone dosage that makes her feel laws were established to provide a ‘spaced out’ and ‘out of it’. public space protected from offensive or intimidating racist behaviour. What happened when she finally makes However, based as they are in equality it to the gaol, in time for the 2:45 visiting doctrines, they also allow whites to bring hour, is contested. Mr O’Leary, a white claims of racial hatred against blacks. prison officer, was the visits booking How does law respond, and how should officer that day. To enter the gaol Ms it, when white applicants present Power usually showed her Medicare themselves as victims of racial harm? This card and pension card, but this time, in article argues for a legal response that her rush, she had forgotten them and makes embodiment central to the the other documents she offered were resolution of these cases. not considered valid ID. Despite having
made 20 previous visits without incident An embodied approach to racial hatred she was refused entry. When she cases can bring justice for black protested, Mr O’Leary’s supervisor, Mr respondents, but also allows whiteness, McLeod, backed up his decision and which is generally obscured in law, to be she was turned away from the gaol. rendered visible. Exposing whiteness to examination can lead to a more As she was escorted away by Mr coherent racial identity for whites and a McLeod and another officer, Ms Power, richer and fairer system of law. ‘wild’ and ‘cursin’’, as she put it, allegedly said to Mr McLeod: ‘you white Preface piece of shit’, ‘you fucking piece of white shit’ and ‘fuck you whites you're all Samantha Power, an Aboriginal woman, fucking shit’. has travelled to visit the father of her four youngest children, an inmate at Yatala Mr McLeod brought an action against Labour Prison in Adelaide. It’s a hot day, her for racial hatred under the Racial and she is travelling by bus with the Discrimination Act 1975 (Cth) (McLeod v children. They have taken two buses to Power 2003). get to the gaol, a trip of more than two hours. Three of her four children—a three year old, a two year old and a baby— are used to being pushed in a stroller. Ms Power is stressed and angry because
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
O’CONNELL: PINNED LIKE A BUTTERFLY
Introduction barely visible in Australian laws. Yet race is fundamental to white legal institutions, ‘elusive’ but ‘pervasive’ (Ravenscroft Being white is an experience of privilege, 2004: 3). In this article I argue that the and yet whites, Baldwin (1998: 321–2) invisibility of race within law results in has written, ‘are impaled on their history harm to white as well as Indigenous like a butterfly on a pin’: Australians, and suggest an approach
that would begin to illuminate the white This is the place in which it seems to me most white Americans find as well as the Indigenous experience of themselves. Impaled. They are dimly, race in Australian law. or vividly, aware that the history they have fed themselves is mainly a lie, It is central to my argument in this article but they do not know how to release to assert that white people suffer themselves from it, and they suffer because of their own racism. This enormously from the resulting personal suffering takes various forms and is incoherence. expressed in different, sometimes
conflicting ways, from the nostalgic and Baldwin’s assertion that whites suffer the nationalistic 4 to the postmodern,5 but internalised ‘incoherence’ of race has common ground in the idea that denial is linked directly to a particular only aridity and constraint can arise from view of the past. In Australia, it is not only fantasies of racial neutrality or in an obscurant view of history that exclusivity. This claim of white suffering is black/white relations have been difficult to assert when it is suffering contested and racial suffering accompanied by privilege: a suffering compounded: law has been a historical that appears trivial compared to the and contemporary forum for race issues material suffering of Indigenous to be selectively acknowledged or Australians. Yet the two are intertwined: obscured. 1 Law, after all, was a failure to acknowledge the negative instrumental in establishing the consequences of racism on whites conditions of early colonisation, encourages further denial of white racial reinforcing the social disadvantage that identity and maintains the pretence of Indigenous Australians have invisibility that feeds into Indigenous experienced, and, later, providing a disadvantage. means by which Indigenous people could argue for land rights and social White Invisibility: Unseen by Whom? equality (Karpin and O’Connell 2005: 173). Anti-discrimination schemata represent one avenue for Indigenous One of the most distinctive qualities of and other Australians to argue for the ‘whiteness’ as it manifests in recognition of their rights and seek contemporary life is its ability to elude redress when those rights are examination. When I have written transgressed. Racial hatred laws, previously about white/Indigenous introduced across Australian states and identity, in the context of emerging territories since 1989, 2 and federally in genetic technologies, I found that 1995, 3 are one facet of these laws which however I approached it there seemed attempts to tackle racial disadvantage to be some kind of erasure taking place directly. (O’Connell 2007). If I wrote about Indigenous people, I felt that I reinforced Despite attempts such as these to the privilege of white invisibility. If I provide legal remedies for racial harm, focused on whiteness I found I was race continues to be subterranean, ignoring the much more serious potential
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losses experienced by Indigenous the sense in which something cannot be people coming into contact with seen simply because it is the standard of genetic technologies. Further, to write neutrality and so draws no attention to about race as a white person, I felt, was itself (Haraway 1997: 23–4). Whiteness to expose exactly those vulnerabilities of escapes examination when, as a the white consciousness that Baldwin consequence of privilege, whites are identifies: incoherence and a seen as autonomous individuals rather subconscious desire for exoneration. This than being reducible to a racial raised for me the general question of category (Chambers 1997: 192). whether it is possible to write meaningfully about whiteness as a white In this view, race lives only ‘in black person, whether, as Pease (2004: 119) bodies’ (Williams 1997: 7), un- puts it: ‘[it is] possible for whites to talk acknowledged as part of the about whiteness in ways that are not experience of white embodiment. racist’. However, the invisibility of whiteness is highly subjective, since it is only whites In the end I decided to simply who cannot see their own race: a self- acknowledge the struggles I was having, willed blindness (Gaze 2005: 6; hooks as a white person, in addressing race 1997: 168). As Perkins (2004: 174) asks: issues. I wrote about the sense of shame I shared about Australia’s white history If ‘whiteness as power is maintained by and the white desire to find an ethical being unseen’ … the question remains: position that erases this shame. Unseen by whom? Those on whom However, I did this without interrogating such power impacts do not fail to see it and people of colour generally do my own racial status. Then I gave it to a not fail to see whiteness around them. 8 6 colleague to read. She pointed out that I was taking a position myself, as ‘white’, Visibility shifts between whiteness and that purified and erased any question blackness, according to undercurrents over my own racial identity. She also of power and powerlessness. White and commented that taking on responsibility black visibility is also interconnected: for colonisation was potentially another white people’s racial identities are 7 form of hypervisibility. Her comments purified and rendered invisible when have inspired the more tentative ‘race’ is synonymous with ‘non-white’ position I take in this article: that racial (Morawski 2007: 216). identity is fluid, contextual and impure, but at the same time being perceived Despite this, social activism since the as ‘white’ gives one concrete privileges 1960s and critical race studies in the past that cannot be ignored. ‘Whiteness’ like decade have meant that there has ‘blackness’, is at once socially been a partial reform of law and politics, constructed and accepted as and enough scholarship to irrevocably biological ‘fact’. challenge the idea that whiteness can be monolithic or ‘pure’. While white How then, to untangle this mix of social invisibility and white privilege endure, construction, embodiment, power and ‘white identities have been displaced privilege? Both whiteness and blackness and refigured: they are now are, at different times, invisible in law. contradictory, as well as confused and Williams (1997: 17) writes that: ‘[h]ow, or anxiety-ridden’ (Winant 2007: 4). The whether, blacks are seen depends upon tension inherent in this state promises a dynamic of display that ricochets further political and academic action between hypervisibility and oblivion’. towards making whiteness visible. Whiteness is invisible in a powerful sense,
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In law, there are particular challenges in laws the Racial Discrimination Act 1975 making white embodiment visible. At the (Cth) was amended in 1995 to include heart of law are abstractions which protections against racial hatred. 12 represent the ideals to be constantly strived for: neutrality, equality, Like all anti-discrimination legislation in objectivity, justice. Inherent in this set of Australia, the federal law is based on abstractions is the idea that if we are all principles of equality. While it may seem equal before the law, and if law is self-evident that racial hatred and other neutral enough, objective enough, that anti-discrimination laws are intended to this will translate into justice and social protect minority or subordinated groups equality. And yet it is the very insistence from further harm, equality-based upon abstraction that can make law legislation is silent on underlying privilege unable to see the specific, embodied or disadvantage; the Racial harm that exists before it. Thornton (1999: Discrimination Act protects whites as well 756) puts this beautifully when she writes as blacks from discrimination. 13 This in relation to constitutional law: neutral expression of protection allows those who enjoy a privileged social While the representation of status because of their race or other constitutional law as abstract, aspect of their identity to adopt decorporealised and neutral accords relatively easily the language of with the idealised and universal norms victimhood. of justice, such rhetoric serves to
disguise the injustice at the root of the case—that is, the particularity of the Even before the Racial Discrimination harm that led to the search for a Act was amended to make racial remedy. Constitutionalisation legit- hatred unlawful at the federal level, imises the recounting of narratives that there were concerns amongst some are likely to be unrecognisable to the commentators about the potential use complainants. The sorrow of the of the provisions to attack those they Aboriginal ‘Stolen Children’ were intended to support. One evaporates in the face of a legalistic commentator (Twomey 1994: 248), excursus on the legislative scope of offering comparison with the experience the Territories power (s 122 of the Constitution) (footnotes omitted). 9 of the United Kingdom, wrote:
Racial hatred laws provide a unique If the aim of racial vilification legislation is to punish racists and racist means of interrogating whiteness and organisations, we may also be challenging this abstraction, because disappointed. Experience in the United they deal directly with the emotional Kingdom has … shown that many of impact of racial harm. the most notorious racists are capable of avoiding conviction under such Regulating Racial Hatred legislation, and that it is often members of minority groups, who do not have the same access to legal Racial hatred or vilification laws exist in advice, who are caught by the all states and territories of Australia, other legislation. 14 than the Northern Territory, as part of a broader regulation of hate speech that A stark example of this was provided Rice (2005) has described as a ‘hotch- when the first person charged under potch’.10 Some racial hatred provisions Western Australian racial vilification laws are criminal, some civil; almost all are was a 15-year-old Aboriginal girl, who inserted in anti-discrimination called another young woman a ‘white legislation. 11 Alongside state and territory cunt’ (Taylor 2006). 15 It is also, of course,
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what happened to Samantha Power vilifying act must be done ‘otherwise after swearing at a white prison guard. than in private’,17 Federal Magistrate However, while whites do have equal Driver discussed whether he would have access to racial hatred provision, the granted relief if the incident were way that whiteness plays out in racial covered by the legislation. 18 Driver FM hatred cases is rarely straightforward. was clearly of the view that the matter did not warrant compensation, and Racial Hatred Cases and Whiteness gave as his reasons that ‘[t]he prison officer had control over the prisoner’ and that ‘[t]here was [already] a Cases brought under the racial hatred procedure within the prison for dealing sections of the federal legislation have with racial abuse, or any other abuse, of been, in general, more likely to succeed a prison officer by a prisoner’ ( Gibbs than other race discrimination cases [20]). There is not enough detail to (Gaze 2005). This probably demonstrates determine whether the racial aspects of a more pervasive difficulty with proving the case held any significance for the racial discrimination, particularly in the magistrate: race is essentially absent in most common area of complaint, this case, although it is fundamentally discrimination in employment, where the about race. We are not told the race of seeming neutrality of the idea of ‘merit’ the abusive respondent and we only can mask racial bias, rather than the know that the object of abuse is white ease of bringing a successful action because of the respondent’s insults. against acts of racial hatred (Hunyor
2003). Federal Magistrate Driver, however,
does acknowledge, very briefly, the In cases that have involved white unique attributes of a prison and the complainants, racial hatred claims have prisoner/guard relationship. A prison, not succeeded. 16 This is also the case after all, is a site of immense power with the claims against Ms Power. But differentials, in which freedom of the story of the day that she visits the movement and choice is intensely prison to see her ex-partner, and ends regulated, and the people with the up in court accused of racial vilification, immediate power to exercise that starts with an earlier story: the case of regulation are the prison officers. Gibbs v Wanganeen (2001) (‘ Gibbs ’). However, while this power differential
exists independently of race—white as Gibbs v Wanganeen is also set in Yatala well as black inmates are subjected to Labour Prison. We are told less about the it—race also overlaps with and details of this case, just that it involved exacerbates the differential, given the an incident which took place after an over representation of Indigenous inmate of the prison, Mr Wanganeen, people in Australia’s prisons (Australian was required to submit to a urine test Bureau of Statistics 2008), 19 the history of and strip search to check for drugs. Indigenous incarceration (Royal Following this, he had a ‘discussion’ with Commission into Aboriginal Deaths in a prison guard, Mr Gibbs. As part of the Custody 1991) and the potential of prior dispute, Mr Wanganeen called Mr Gibbs experiences of racism to intensify an a ‘fucking white cunt’, a ‘fucking dog’ Indigenous person’s experience of and ‘white trash’ (Gibbs [2]). incarceration.
Although it is an interlocutory matter, This, however, is not the end of the story. confined to considering the meaning of Following Gibbs v Wanganeen , the the legislation when it states that a correctional officers’ professional
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association sent their members a In those circumstances, I can well pamphlet telling them that the Gibbs understand that Ms Power would have case had failed because it was in a become angry when she was refused private area of a gaol, promising to admission to the prison, particularly when she had been admitted to it prosecute on behalf of any prison officer without incident in the past. I accept who was vilified in a visiting area or other that she was frustrated and upset at public place. 20 Mr McLeod clearly relied the refusal by figures in authority in the on the pamphlet in taking action form of the applicant and Mr O'Leary against Ms Power, who had abused him to allow her entry into the prison. I in an area of the prison that, following have no doubt that she reacted badly Gibbs , would be likely to be considered to this refusal. It was hot. She had ‘public’. come a long way. The purpose of her visit was frustrated. There was no other person to whom she could turn to seek Federal Magistrate Brown refers to this a review of the decision. She reacted incentive in his judgment, just as he with vulgarity, rudeness and insult in acknowledges many of the practical or the face of what she perceived to be concrete factors that underpin McLeod heartless and inflexible bureaucracy v Power (2003) (‘ McLeod ’). The case, in (McLeod [23]). a way that is rich for law, sketches a picture of Power’s day, demonstrating Vulgarity and rudeness alone do not her state of mind, her emotions and her make a successful racial hatred case. bodily state in the lead up to her verbal The fact that Mr McLeod is white, and abuse of Mr McLeod. We know about was abused using the term ‘white’, is not her, can think about how she might enough to make it a racial incident for have felt, and potentially empathise, the magistrate. ‘White,’ he says ‘is of because the magistrate does. He is the course a colour’, and so seemingly falls conduit for the reader of the case to within the protective scope of the imagine what it might feel like to be Ms legislation, 22 but the term ‘does not itself Power, standing at the gatehouse in the encompass a specific race or national heat, feeling angry, tired and sick. or ethnic group. It is too wide a term for that’ ([55]). White Australians, Brown FM The McLeod case also takes into states, are also not a homogenous consideration gender issues. It is rare in group, since they have ‘different law—where stress factors are sometimes languages, religious beliefs, countries of acknowledged and used as mitigating origin and cultural practices’ ( McLeod factors 21 —for domestic or caring [59]). He concludes: pressures to be accepted as mitigating factors against potentially actionable [B]eing ‘white’ per se is not in my view behaviour. In McLeod, the magistrate descriptive of any particular ethnic, acknowledges, as one of the stressors national or racial group. Nor is it of affecting Ms Power, the strain of caring itself a term of abuse. White people are the dominant people historically for four small children in a stressful and culturally within Australia. They are environment on a tiring trip, as well as not in any sense an oppressed group, her distress over whether she would lose whose political and civil rights are the care of those children. under threat ( McLeod [59]).
These points are not just background The word ‘white’ itself, rather than detail; they are treated as significant by adding an exacerbating racial element the magistrate who, after outlining all of to the insults, is described by the Ms Power’s physical and emotional magistrate as inoffensive, ‘anodyne’: stresses, concludes:
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In my view [Mr McLeod] was shocked state remains unexplored. We know and offended by the strength and almost nothing about his emotions, or vehemence of the swearing that was the physical and mental context in directed against him. I do not believe which he operates. His racial identity, that his shock and offence were minimally explored, is also rendered necessarily transformed or intensified by the addition of the anodyne words insignificant. Brown FM effectively erases ‘white’ or ‘whites’ into the melange of his whiteness, describing it in various invective that had been directed contexts as non-homogenous ([59]), against him (McLeod [28]). non-specific ([59]), insignificant ([66]) and ‘anodyne’ ([28]). The significance of In brief, Brown FM decided that Ms whiteness is further undermined in other Power’s insults were not racial vilification sections of the judgment by Brown FM because they were made not because pointing out the social dominance of of Mr McLeod’s race, but to express whites in Australia, making white frustration at the power differential Australians a group that does not require between them; because a ‘reasonable legal definition since they are not in correctional services officer with a pale need of legal protection ([55], [59]). skin’ (McLeod [69]) would not have been offended by them; and For their social dominance, ill-defined because—despite the decision in boundaries and internal diversity as a Gibbs —the conversation between Ms group, Brown FM finds that whites should Power and Mr McLeod was private in not be able to invoke the racial hatred nature even though it occurred in a provisions of the Racial Discrimination public place. Act. It is not unusual for complaints of vilification against whites to fail: the In reaching this conclusion Brown FM actions in Gibbs v Wanganeen , De la repeatedly refers to the power disparity Mare v Special Broadcasting Service between Mr McLeod and Ms Power. The (1998) and Bryant v Queensland benefit of the body and its material Newspaper Pty Ltd (1997) were all conditions being acknowledged in this unsuccessful (or in the case of Gibbs case is that they help illuminate the would likely have failed if it had power differential between the proceeded) because of the decision Aboriginal woman visitor and the white maker’s conclusion that the alleged prison guard, who was ‘to a large extent vilification was not serious or offensive in control of the situation’ (McLeod [75]); enough to warrant legal remedy. the kind of power differential that can so However, each of these cases was easily be obscured or obliterated by the concluded with minimal discussion of abstractions of legal principle. McLeod is racial embodiment. What McLeod one of those exceptional cases in which demonstrates is that where racial embodiment is made visible, and in embodiment is directly addressed, doing so justice has been done. despite the possibilities for a just outcome to the case, there are further Wearing Racial Embodiment potential problems for the Indigenous legal actor.
Or has it? What is interesting in McLeod is In McLeod , Brown FM strives against that while we are told enough about Ms legal neutrality and abstraction to Power to imagine empathetically what it acknowledge the material conditions of might be like to be experiencing her embodiment that will make the racial particular tensions in the moment of and other inequalities of the case legally alleged vilification, Mr McLeod’s bodily visible. He draws an abject picture of Ms
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Power that illustrates her vulnerabilities reinscribes the relative privilege and and establishes Mr McLeod’s relative disadvantage of the parties power and status. In doing so, he (O’Connell 2009). expresses and evokes compassion for Ms Power, and sets her up as a person to be These laws can sometimes have the pitied rather than prosecuted. However, unintended effect of making in his focus on Ms Power’s embodiment, subordinated bodies hypervisible, Brown FM locates in her qualities that making them wear the consequences of may as easily be reviled as pitied: her embodiment, so that black bodies are drug taking, the inadequacy of her more situated, biased, affected by parenting, her sexual history and poverty materiality, while white bodies remain are all on display. Whether Mr McLeod neutral and unaffected by their shares any of these characteristics or has embodiment. In other words, the white potentially abject qualities of his own is actor in anti-discrimination law is left with not discussed: since all we know about the power of his or her invisible whiteness him are the bare facts of his gender, intact, while the black actor’s race and profession he remains simply embodiment is on display. an ‘ordinary’ white man, doing his job. Conclusion: Resisting Embodiment— So, as well as allowing white privilege to What Remains Invisible? remain undisturbed, this approach also highlights a danger for the Indigenous Discrimination laws are useful and participant in discrimination cases: that powerful in part because they he or she will remain vulnerable to the acknowledge embodiment; yet they way that a given decision maker will can also reinscribe powerlessness describe, and then respond to, the very because they tend to see racial qualities that he or she must establish in embodiment only in those who are order to attract protection. Should the already bearing the weight of a decision maker adopt a different hypervisible racial identity. One response affective stance, such as contempt or to this is to question the gaps in bodily disgust, in place of compassion, the representation in law: whose outcome of the case may well be embodiment has eluded legal different. attention? What are the bodily ‘remains’ of a case; what remains invisible? Anti-discrimination laws are unique within the legal portfolio for their In considering which actors in this story concern with embodiment in its various have eluded embodiment, it is not only forms; from skin colour to physical ability, Mr McLeod and his colleagues who pregnancy or sex. However, while the have escaped attention. In law, body can be the focus of discrimination decision-makers are almost invariably cases it is the physical and emotional disembodied, and the decision-makers state of the socially disadvantaged in racial hatred cases are no exceptions. actor that is usually relevant: Their perceptions of race, their own race and their bodily states exist behind a It is the stigmatised body that is made seemingly impenetrable neutrality, albeit to ‘wear’ embodiment: the normalised body remains clean of bodily flaws one that sometimes grows thin when the and vulnerabilities. While decision-maker is black or female or is acknowledging embodiment means otherwise visibly embodied. That, that discrimination law is grounded in however, is another part of the story, the reality of daily life, the one- told in other contexts by other theorists sidedness of the acknowledgement
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(see Graycar 1998; 2008). Also invisible Author Note are you and I, the readers.
Karen O’Connell is a Sydney based Telling all the parts of the embodiment writer and human rights lawyer. story promises rewards for white as well as Indigenous Australians. Avoiding the reality of racial embodiment leads, as Acknowledgements Baldwin suggests, to both ‘personal incoherence’ and to renunciatory I would like to thank the two anonymous versions of racial history that permeate reviewers for their insightful comments social and legal institutions until they are on an earlier version of this article. finally and painfully acknowledged. It is through embracing the reality of References embodiment that whites may gain a language, including a legal language, in which to speak about their own race. Australian Bureau of Statistics, 2008. Attention to what whiteness may mean Prisoners in Australia , ABS 4517.0, in any specific context—in Australia, in Canberra: Commonwealth of relation to Indigenous peoples, where Australia. there are allegations of racial hatred— Baldwin, J. 1998. White Man’s Guilt in promises whites some respite from the David R Roediger (ed.) Black on stifling neutrality of racial invisibility, an White: Black Writers on What it Means opportunity to consider how whiteness to be White, New York: Shocken has shaped their identity and history, Books. and the possibility of a more coherent Chambers, R. 1997. The Unexamined in self description. M. Hill (ed.) Whiteness: A Critical Reader New York: New York University When Baldwin wrote that whites were Press. pinned like butterflies there was clearly a Frankenberg, R. (ed.) 1997. Displacing sense of oppressive constraint in that Whiteness: Essays in Social and image. Yet a pinned butterfly is not only Cultural Criticism , Durham: Duke a negative symbol; as well as a University Press. metaphor of capture it is also a Gaze, B. 2005. ‘Has the Racial metaphor of taxonomy and display. Discrimination Act contributed to There is something to be gained by eliminating racial discrimination? putting whiteness under scrutiny and on Analysing the litigation track record show. This is not to suggest that attention 2000–04’ Australian Journal of Human to all forms of embodiment is a way of Rights, 11(1), 171–201. untangling the resilient and mutually Graycar R. 1998. ‘The gender of constitutive relationship of racial judgments: some reflections on bias’ privilege and disadvantage, embedded University of British Columbia Law as it is in so many other powerful social Review 32, 1–21. structures (Levine-Rasky 2002: 341). But in ——2008. ‘Gender, race, bias and discrimination law there is the possibility perspective: or, how otherness of remedying the one-sidedness of colours your judgment’ International considerations of embodiment, to Journal of the Legal Profession: illuminate racial privilege as well as Special Issue on Gendered Judging , disadvantage, and to undermine the 15, 73–86. tendency of laws—even beneficial Haraway, D. 1997. laws—to entrench the disadvantage Modest_Witness@Second_Millennium. they set out to redress.
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FemaleMan©_Meets_ OncoMouse™, and Cultural Criticism, Canberra: New York: Routledge. Aboriginal Studies Press. hooks, b. 1997. Representing Whiteness Perkins, M. 2004. False Whiteness: Passing in the Black Imagination, in R. and the Stolen Generations in A. Frankenberg (ed.) 1997. Displacing Moreton-Robinson (ed.) Whitening Whiteness: Essays in Social and Race: Essays in Social and Cultural Cultural Criticism , Durham: Duke Criticism, Canberra: Aboriginal University Press. Studies Press. Hunyor, J. 2003. ‘Skin-deep: proof and Poynder, N. 1994. ‘Racial vilification inferences of racial discrimination in legislation’, Aboriginal Law Bulletin , employment’ Sydney Law Review , 25, 71, 57. 535–54. Ravenscroft, A. 2004. Anxieties of Ignatiev, N. and Garvey, J. (eds.) 1996. Dispossession: Whiteness, History and Race Traitor, New York: Routledge. Australia’s War in Vietnam, in A. Karpin, I. and O’Connell, K. 2005. Moreton-Robinson (ed.) Whitening Speaking Into a Silence: Embedded Race: Essays in Social and Cultural Constitutionalism and Women’s Rights Criticism, Canberra: Aboriginal in Australia in B. Baines and R. Rubio- Studies Press. Marin (eds) The Gender of Rice, S. 2005. ‘Do Australians have equal Constitutional Jurisprudence, protection against hate speech?’, Cambridge: Cambridge University
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Cases a criminal offence: Criminal Code 1913 ss 76– 80, and in Tasmania, a civil offence: Anti- Bell v ATSIC & Gray & Brandy [1993] Discrimination Act 1998 s 19. HREOCA 25. 3 Sections 18B-18F Racial Discrimination Act Brandy v HREOC and Ors (1995) 127 ALR 1975 (Cth), as amended by the Racial 1. Hatred Act 1995 (Cth). 4 The ‘New Abolitionists’ of the American Bryant v Queensland Newspaper Pty Ltd ‘Race Traitor’ movement claim that being [1997] HREOCA 23. white means not being fully ‘American’: Carr v Boree Aboriginal Corp & Ors (Ignatiev and Garvey 1996: 21). [2003] FMCA 408. 5 See for example, the work of Haraway De La Mare v Special Broadcasting (1997), who champions the rich theoretical Service [1998] HREOCA 26. and material possibilities of acknowledging the ambiguous, contested meanings of race, Gibbs v Wanganeen [2001] FMCA 14. in contrast to the trauma of a pretence to McLeod v Power [2003] FMCA 2. racial purity. 6 Professor Isabel Karpin, University of Notes Technology Sydney, Faculty of Law. 7 See also Frankenberg (1997: 1). 8 See also Moreton-Robinson (2004: 81): ‘In academia it is rarely considered that 1 All racial terminology is fraught with shifting Indigenous people are extremely meanings and implied positions. Here I am knowledgeable about whites and using the terms ‘black’ and ‘white’ which are whiteness.’ unsatisfactory because they suggest a 9 Thornton is referring to the Stolen homogenous individual and group racial Generations case of Kruger v identity that is exactly what I set out to Commonwealth (1997) 190 CLR 1. challenge. However, I prefer the terms to 10 As well as the overlapping other possibilities such as ‘non-white others’ Commonwealth/state jurisdiction, there are that leave ‘whiteness’ intact, while also jurisdictional variations in the type of underscoring the fragmented and offence; civil or criminal, and differing contingent identity of the racial other. The grounds of hate speech (as well as race, lack of adequate racial descriptors is itself an some states protect against other kinds of eloquent critique of the irrationality of racial vilification, such as religion or sexuality-based categorisations in contemporary Australia. vilification). 2 In several states as well as the ACT, anti- 11 See n 1 above. discrimination legislation provides both civil 12 See n 2 above. and criminal offences. The Anti-Discrimination 13 See, for example, Carr v Boree Aboriginal Act 1977 (NSW) provides a civil remedy for Corp & Ors [2003] FMCA 408. Another older racial vilification (s 20C) as well as making it a example of a case in which a white criminal offence in serious cases (s 20D). complainant argued discrimination in Racial vilification is prohibited under the employment by an Indigenous respondent is Racial and Religious Tolerance Act 2001 (Vic) Bell v ATSIC & Gray & Brandy [1993] HREOCA s 7 (civil), s 24 (criminal). In Queensland, s 25 (22 December 1993). This case was 124A of the Anti-Discrimination Act 1991 appealed to the High Court on the issue of makes vilification unlawful; serious incidents the then Human Rights and Equal may be a criminal offence under s 131A. The Opportunity Commission’s ‘judicial’ powers, Discrimination Act 1991 (ACT) s 66 makes as Brandy v HREOC and Ors (1995) 127 ALR 1. racial vilification unlawful, and s 67 creates a 14 See also Poynder (1994: 57) who makes the criminal offence for serious incidents of racial same observation specifically about vilification. In South Australia, criminal and Aboriginal Australians. civil offences for racial vilification are in two 15 The case was heard in Kalgoorlie Children’s separate Acts: the Racial Vilification Act 1996 Court and the racist harassment charge was s 4, (criminal) and the Wrongs Act 1936 s 37 dismissed as the abuse was not serious, (civil). In Western Australia, racial vilification is substantial or severe enough ( Criminal Code
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1913 (WA) s 76), to meet the legal 18 The magistrate found that it was not an act requirement for prosecution. done ‘otherwise than in private’ because 16 In addition to the vilification cases of Gibbs there was no direct public right of access to v Wanganeen (2001) and McLeod v Power this section of the gaol, unlike, he states, the (2003), discussed here, see also Bryant v gatehouse and visits centre: ( Gibbs v Queensland Newspaper Pty Ltd (1997) (an Wanganeen [16]) Further, there were no English man complained about the use of members of the public present, nor any the term ‘pom’ in newspaper articles) and reason to find that the conversation was not De La Mare v Special Broadcasting Service intended to be private: ([17–18]). (1998) (a white person complained about 19 Twenty four per cent of all Australian the broadcast of a satirical ‘mockumentary’ prisoners are Indigenous. called ‘Darkest Austria’ which he claimed 20 The pamphlet stated that, following Gibbs vilified white people and Western countries). v Wanganeen , ‘it is clear that if an officer is 17 Section 18C(1) of the Racial Discrimination racially vilified in a “public area” of the prison Act 1975 (Cth) states: ‘It is unlawful for a (such as the visits area) then the matter person to do an act, otherwise than in would be actionable’ and invited its private, if members to report any racial vilification that (a) the act is reasonably likely, in all the occured in ‘public’ areas, promising legal circumstances, to offend, insult, humiliate or support. Cited in McLeod v Power (2003) [5]. intimidate another person or a group of 21 For example, in the law of provocation, people; and triggers such as ‘grossly insulting words or (b) the act is done because of the race, gestures’ can reduce a sentence from colour or national or ethnic origin of the other murder to manslaughter under the various person or some or all of the people in the state criminal Acts, such as s 23 of the Crimes group.’ Act 1900 (NSW). Sections 18C (2) and (3) give further detail on 22 Under s18C(1)(b) the act complained of when an act will be considered not to be must be done because of the complainant’s done in private. ‘race, colour or national or ethnic origin’.
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ACRAWSA e-journal, Vol. 4, No. 2, 2008
BOOK REVIEW
KATHLEEN CONNELLAN
Basia Spalek and Alia Imtoual. (Eds.) which touch upon all disciplines and 2008. Religion, Spirituality and the Social practices. Sciences: Challenging Marginalisation. Bristol: Policy Press. pp. 208. ISBN 978-1- Religion, Spirituality and the Social 84742-041-1. Sciences: Challenging Marginalisation challenges the way in which established ‘A Sparkling Mosaic’ religions, in the UK and Australia for example, retain hegemonic status. This is done under a cloak of secularism which Judging a book by its cover is not is used to disguise dominant politico- something one is encouraged to do. religious practice. As such, what However, the cover image on Religion, transpires from this book is that power Spirituality and the Social Sciences — relations are constantly at work. The emanating blue mosaic fragments that selection of chapters comes together in spiral out from an indefinite centre— a way that resonates with Michel aptly reflects the direction and cohesion Foucault’s genealogical approach. This of the many voices in this fourteen- approach draws upon different historical chaptered book. and methodological examples and can
be used to cast perspective on the way Mere utterances of the word ‘religion’, in which religion, state, politics and let alone attempts to incorporate education operate in conjunctions of understandings of it into the social power (2007). Despite the ironies of a sciences in the early 21st century type of sanctimonious secularism in Western university, have been enough countries such as Australia and the UK, to cast suspicion. It is therefore timely, Spalek and Imtoual’s book shows that it necessary and brave of Spalek and is not possible to quash the human soul Imtoual to bring together this collection and its thirst for spiritual nourishment. of opinions and research on both Initiatives to provide insight into faith religion and spirituality. In my own field of identities constitute a counter freedom visual art and design history and theory, movement, which this volume these issues are simultaneously hidden contributes towards now. Secularism has and visible. The ‘accepted’ visibility of been a convenient disguise for the religion is where it is conveniently a part ‘disciplinarisation’ and separation of of art history and consequently neatly knowledges that the university tried to dealt with in retrospect. But the re- achieve in the past (Foucault, 2004, emergence of the spirit and its spirituality 183). within an articulated world of creativity is no longer possible to ignore. There is The book sparkles with the hope of obviously a need for something more voices that speak out for belief and than objective intellectual engagement against suppression. In this vein, and this is nowhere more pertinent than discussions of spiritualit(ies) is especially in critical race and whiteness studies,
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
CONNELLAN: A SPARKLING MOSAIC
positive in the light of institutionalised both qualitative and quantitative religions and the colonising process. For measures are brought to bear upon the example, Ursula King’s chapter: research; this is especially evident in part ‘Spirituality and gender viewed through three of the book. Miguel Farias and a global lens’ contributes to a Elisabeth Hense produce a thorough redefinition of spirituality within re- investigation into ethno-categories and emerging concepts of the goddess and misconceptions regarding data on the feminist spirituality. Aspects of terms ‘religious’ and ‘spiritual’. This Ancestralism and ritual are similarly analysis is followed by Muzammil evoked as ‘symbolic forms of resistance’ Quraishi’s gripping account of his own in Maria Frahm-Arp’s chapter when they research experience during months of come together with forms of Christianity full-time work amongst Muslim prisoners in the African independent churches. in the UK. Aspects of race, class and Gordon Lynch writes a brilliant chapter language reverberate around trust and entitled ‘Dreams of the autonomous and suspicion in the confined environment of reflexive self: the religious significance of the prison, which provides the perfect contemporary and lifestyle media’ in micro-panoptic for the remainder of which he tackles the rapid changes in society. Consequently this chapter is well role models and comments on the placed towards the end of the book notion of ‘experts’ in late modernity. The where it casts light on other methods of modernising processes of life, and beliefs surveillance operating against faith beyond life, crop up often in the book. communities in seemingly innocuous Changes wrought by modernity show ways. that the need for another reality finds expression in many different I have called this review ‘a sparkling observances. The re-emergence of faith mosaic’ because the pieces of blue is said to be ‘shy’ but resilient in Adam glazed ceramic tiles on the cover image Possamai’s chapter, who argues that glisten with individual shards of religion is present but at times ‘invisible’. embedded and reflective tones. This is Lynch shows how Thomas Luckman’s also true of the chapters and voices notion of ‘invisible religion’ also helps to within them which constitute the make sense of the limited ‘horizons of compositional elements of what will this life’, however Lynch is careful to hopefully stimulate more work of this note that simplifications will only result in nature. The inside/outside tensions of an even more problematic and generic belief and faith in a world that is religious ‘world-view’. cautioned by scepticism and policed by secularism are shown in sensitive The precise clarity of each chapter’s balance. At the heart of all societies are voice, whether or not some resonate the individual people and their ‘souls’. with others, is what gives credence to ‘The soul, the breath, is something that this book. There is certainly no can be disturbed and over which the homogenous view of religion and outside can exercise a hold. One must spirituality put forward here. Instead, avoid dispersal of the soul, the breath’ there is a careful interrogation into (Foucault, 2005, 47). As such this edited content and methods so that faith and volume confronts ideas on eschatology spirituality can be incorporated into in a way that maintains its fragility but social science curricula with respect and sustains its importance as a factor to be ethics. Methodologies that combine included in studies of society.
CONNELLAN: A SPARKLING MOSAIC
Religion, Spirituality and the Social Australian Critical Race and Whiteness Sciences is a book that can be read Association and has published widely in and used for many different degrees the area of art, craft and design and the and courses in the social sciences. It is politics of representation. remarkably well structured. The excellent introductory and concluding chapters References by the editors, careful commentaries between each section, in addition the Foucault, M. 2007. Security, Territory, bibliographies and index make it an Population: Lectures at the Collège extremely accessible and functional de France, 1977-78, edited by M. volume. Senellart and translated by G. Burchell, Hampshire: Palgrave Author Note Macmillan. —— 2005. The Hermeneutics of the Kathleen Connellan is currently a Subject: Lectures at the Collège de portfolio leader of research in the School France, 1981-82, edited by F. Gros of Art, Architecture and Design at the and translated by G. Burchell, New University of South Australia. Her research York: Picador. focuses on two main areas: design and —— 2004. Society Must be Defended: colour theory, and critical race and Lectures at the Collège de France, whiteness studies. She is on the editorial 1975-76, edited by M. Bertani and A. panel of the journal of Visual Design Fontana and translated by D. Macey, Scholarship , is vice president of the London: Penguin.
ACRAWSA e-journal, Vol. 4, No. 2, 2008
BOOK REVIEW
DAMIEN W. RIGGS
Derek Hook . 2007. Foucault, Psychology substitution of cause for effect), and the and the Analytics of Power. Hampshire: production of subjectivities in particular Palgrave Macmillan. pp. 301. ISBN 978-0- racialised social contexts. 230-00819-9. In regard to the first aspect, Hook This exciting new text by Derek Hook emphasises (both implicitly and represents a much needed elaboration explicitly) Foucault’s understanding of of the application of Foucault’s analytics power, and the ways in which the of power for use within the discipline of operations of power necessitate a series psychology and the social sciences of manoeuvres that often substitute more broadly. Hook provides the reader cause for effect, or which obfuscate the with a thorough working through of temporal ordering of power, Foucault’s account of power, his subjectification and subjectivisation. As formulation of subjectivity, and applies Hook elaborates, Foucault’s aim in so this to the development of a broadly doing is to highlight how attempts at outlined research method which he uses tracking routes of power ‘back to their to examine issues such as those relating source’, or attempts at finding ‘base to racism, paedophilia, psychological causes’ for any given subject position practice and gated communities. fundamentally fail to comprehend the Importantly, Hook appears to write point, later made by Butler (1997), that neither for nor against Foucault. Instead, neither power nor people are he writes with and through Foucault to antecedents of one another: they are develop his own account of subjectivity mutually constituted in ways that serve that represents an important extension to further prop up both the seeming of Foucault’s work through a critical naturalness of power relations, and the engagement with psychoanalysis, and seeming naturalness of subject positions. through a consideration of the affective elements of subjectivity. Hook examines this substitution of cause for effect in at least two ways. First, and Hook’s work has long been central to my most explicitly, he outlines—in an own formulations of the ‘psychic life of excellent chapter on using Foucault’s colonial power’, and in the remainder of theory as a guideline for research this review I focus on engaging with methods in the field of discourse Hook’s outline of power and subjectivity analysis—a notion of ‘reversal’ as the to draw attention to the productive intentional act of analysis aimed at aspects of his book for those working in refuting assumptions about notions of the field of critical race and whiteness ‘origins’. Second, and as an implicit studies. In so doing I emphasise two thread running throughout the book, he particular aspects of Hook’s work: his indicates moments in Foucault’s references to what might be termed the theorising where he apprehends the ‘metaleptic effects’ of power (ie., the metaleptic effects of power. For
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008
RIGGS: THE POLITICS OF VOICE
example, and as Hook suggests when ongoing resistances to it as a legitimate outlining disciplinarity, it ‘may be said to category of differentiation. engender its own deviance, thereby enabling and justifying its own recovery Yet despite what may seem like a rather systems’ (p. 39). Further on in the first deterministic account of racialised chapter, Hook also highlights how power power, Hook goes to considerable always produces metaleptic effects, length, and in some ways writing against where power projects itself backward to Foucault, to elaborate how resistance to produce subjects that are seen as hegemony functions. Rather than simply always already marked by power. In so suggesting that resistance occurs at the doing, he suggests, power disguises the points where power fails to assert itself as instability (and contingency) of its a priori, Hook outlines in later chapters foundations by claiming foundationality how power is never one and the same within subjects. This circularity and thing: it functions in differing ways and to contingency of power is something that differing ends depending on the context Hook returns to throughout the early and often despite the intentions of those chapters of the book as he negotiates who seek to wield power. some of the limitations of Foucault’s work (or more precisely the opacity of And this brings me to perhaps the only some of his thinking) in order to more limitation of Hook’s text. Whilst, as the fully develop an account of power that book progresses, Hook clearly outlines is opened up to a broad range of how race and sexuality (amongst other applications. points of difference) function to discursively produce particular To this end, Hook’s text is at its strongest if intelligible subject positions, the book we (and indeed when he) apply his would have been stronger still had the elaboration of Foucault’s work to functioning of race (in particular) as an consider how subjects are produced as organising principle (in all its varied forms always already racialised in particular and contexts) been applied to the social contexts. In my reading, this theories of Foucault outlined in the first appears most clearly in the formulation, chapter. As Greg Thomas (2007) outlines following Foucault, that whilst there is no in his cutting analysis of the field of sovereign figure animating particular sexuality studies, Foucault is always racialised power networks, such already talking about a white history of networks are nonetheless enacted sexuality, using the tools of critique through the bodies of subjects identified developed by white theorists. Whilst, as as occupying subject positions marked Thomas acknowledges, Foucault is in as privileged. In this sense, and whilst it is specific moments aware of this fact, in important to note how race circulates in general he speaks as though the ways that exceed the intentions of histories he recounts are universal. individuals actors, it is nonetheless also Hook’s text thus would have been important to note how it functions as an further strengthened by an engagement investment, even if those invested in it with the racialised power and forms of are not fully aware of its operations. By disciplinarity wielded in Foucault’s making particular subject positions writing. Importantly, and as I suggested intelligible, race as an organising mode at the beginning of this review, Hook of power operates through bodies to doesn’t simply write in support of reinforce its normative status despite Foucault — he often engages in critical
RIGGS: THE POLITICS OF VOICE
examination of Foucault’s Author Note presumptions—yet this could have been pushed even further by examining the Damien Riggs is an ARC postdoctoral position from which Foucault wrote and fellow at the University of Adelaide. His thus the limitations that arise from this. research focuses on three main areas: lesbian and gay psychology, critical To conclude: this in an exciting text that race and whiteness studies, and extends Foucault’s own work in parenting and family studies. He is the important ways, and which offers new editor of two books including the modes of analysing a range of social recently published Taking up the issues, most especially in relation to race challenge: Critical race and whiteness and whiteness. Hook’s close reading of studies in a postcolonising nation Foucault’s work demonstrates an in- (Crawford House, 2007) and the author depth knowledge of what is often a very of Priscilla, (white) queen of the desert dense body of work, and as a result he (Peter Lang 2006) and Becoming parent: renders Foucault’s key ideas in ways that Lesbians, gay men, and family (Post are both highly readable and Pressed 2007). stimulating. The book will definitely be of interest to those working in the field of critical race and whiteness studies who References are looking to draw upon the work of Foucault to conduct their own research, Butler, J. 1997. The Psychic Life of Power, and will also provide a useful Stanford: Stanford University Press. springboard for those wishing to further Thomas, G. 2007. The Sexual Demon of critique the functions of racialised Colonial Power: Pan-African power, both within Foucault’s work and Embodiment and Erotic Schemes of beyond. Empire , Indiana: Indiana University Press.