INDIGENOUS CRIME AND SETTLER LAW: WHITE SOVEREIGNTY AFTER EMPIRE by HEATHER DOUGLAS and MARK FINNANE (original) (raw)
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The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia
2010
Mark Finnane, The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia,Palgrave Macmillan, reproduced with permission of Palgrave Macmillan Finnane: Limits of jurisdiction 2 The limits of jurisdiction: law, governance and Indigenous peoples in colonised Australia Mark Finnane In events well known and controversial in Australia, the last year of the Howard Government (1996-2007) saw a federal "intervention" in one of its own territories with the aim of restoring order in Aboriginal communities. Under the mandate of an "Emergency Response" the government designed a comprehensive program of policing (including military aid to the civil power), welfare reform and criminal law amendment. The response comprised both material and symbolic elements. Among the latter was a widely publicised announcement that "customary law" would no longer be an excuse for criminal behaviour. Some months later the Commonwealth Parliament amended the Crimes Act to delete a requirement passed only in 1994 (with bi-partisan support) that a court take account of "cultural background" in sentencing decisions. Today the Crimes Act directs that "a court must not take into account any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates." 1 Such a determined government attack on "customary law and cultural practice" more than two centuries after the British settlement of Australia prompts us to consider how such traces of Indigenous authority and even assertions of jurisdiction have survived. For it will be argued here that far from being resolved in 1836, the question of Indigenous amenability to imported British criminal law in Australia remained surprisingly open. Historians as well as jurists have generally agreed that when the New South Wales Supreme Court affirmed in the case of R v Jack Congo
Coming to Terms with the Past in Australia
2003
From the time that colonists first set foot in Australia, British officials and Australian governments refused to acknowledge the status of the indigenous people. Australia was declared 'terra nullius', giving Europeans that right to settle and exploit the land as the pleased. No treaties were made with indigenous communities; no recognition was given to their claims of ownership; no allowances were made for the survival of their communities. Aborigines were pushed aside, and if they resisted they were punished. Some found employment as stockmen or servants; some sought refuge on missions or settled on the outskirts of country towns. Many perished. Only a few communities managed to continue their traditional way of life in territory remote from white settlements. 1 It was not until mid 20 th Century that Aborigines were recognised as Australian citizens and up to recently the doctrine of terra nullius continued to prevail. However, in the last 15 years, political and legal developments have forced non-Aboriginal Australians to face some of the injustices of the past. The first was a judgment by the Australian High Court in 1992 which declared that British sovereignty and European settlement had not necessarily extinguished indigenous rights to property. This decision was followed by a High Court judgment which ruled that Aboriginal communities could legitimately claim land now leased by farmers and graziers (which includes most of outback Australia). 2 Terra nullius was officially dead. The Labor Government consolidated the rulings of the courts with a Native Title Act which provided a framework for protecting native titles and a process for claiming them. It also provided compensation to those communities which were not able to make claims. This legislation, along with the establishment of a Council for Aboriginal Reconciliation, was supposed to bring about a radical change in the relations between Aborigine and non-Aboriginal communities. The starting point said the then Prime Minister Paul Keating in a 1992 speech, is an act of recognition-'Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life'. 3 Awareness of these injustices and their present day consequences was also highlighted by two Commissions of Inquiry. The first into Aboriginal Deaths in Custody (1991) found that Aborigines were more likely than members of the non-Aboriginal population to end up in prison where they were often subjected to insensitive or even 1 See Henry Reynolds, The Law of the Land (Melbourne: Penguin, 1987). 2 The 1992 Judgment was the result of a case brought by Eddie Mabo, a Torres Strait Islander, who laid claim to the land of his ancestors. The second judgment resulted from a case brought by the Wik people of Cape York Peninsula. 3 From a speech given in Redfern (a suburb of inner Sydney with a large population of Aborigines) on 10 December, 1992.
From the barrel of the gun: policy incursions, land, and Aboriginal peoples in Australia
Environment and Planning A, 2010
This paper focuses on the enduring traces of colonialism within the Australian nation-state and the ongoing challenges to Aboriginal peoples' rights, especially land rights. We try to make sense of contemporary federal government and New South Wales state, or provincial, government policy changes which connect land use, access and ownership to social welfare, and which target Aboriginal peoples in remote, or outback, areas and the inner city. We connect these two policy initiatives by pointing to the tension between social and planning policies, conceptions of landownership, and the notion of Aboriginal self-determination. We try to understand the rationale and enactment of these policies through the idea of policy incursions. We argue that policy incursions represent a constellation of settler nationalism, the enactment of a white national imaginary, and the exploitation of crisis that reinscribe Aboriginal people in 21st-century Australia as objects of state policy, while marg...
The Politics of Remembering and Forgetting: Native Title Law and Reconciliation in Australia
Cosmopolitan Civil Societies: An Interdisciplinary Journal, 2009
The post-Mabo era was to be the age of reconciliation and the end of unjust dispossession of Indigenous peoples' lands. However, as the more recent cases in native title show this vision did not become the reality. In this paper, I will examine Mabo in its historical context. In particular I will examine the claim that Mabo was a product of the 'new history' movement in Australia. This movement developed in response to the silence that had shrouded the history of colonial relations between Indigenous and non-Indigenous peoples for most of the 19th and 20th centuries. Through the writing of these histories, new historians have raised awareness of the history of colonization in Australia and the impact it has had on Indigenous peoples in particular. In the paper I will outline the ways in which Mabo is a product of this history. However, if Mabo did not bring to an end to the injustice and inequality facing Indigenous peoples in the context of land law in Australia, it is because of the traces of another history informing that decision and the events that followed it. In this paper I will refer to this history as the 'old history' of Australia. In this history Indigenous peoples are placed in a paradoxical position: they are inferior, but still seen as threat to the colonial enterprise. The paper will explore how this 'history' is repeated in Mabo and continues to inform the High Court's approach to native title law.