History in the Courtroom

If the Law (in the sense of tjukurrpangarrangkarni, and wangarr, the Dreaming) has always been central to Aboriginal peoples’ conceptions of the world they inhabit, then the Law (in the sense of lexiuris, and the courtroom) has been equally central to the last century of Indigenous life in Australia. It has been an uneven and mostly unequal encounter between the two systems of Law. Its history in the final quarter of the 20th century was tumultuous, moving from the judgment that traditional Aboriginal law had no relevance in the Australian courtroom with the decision in Milirrpum v Nabalco (1971) to the recognition of traditional law in Mabo v Queensland No 2 (1992) and the concomitant discrediting of the British conceit ofterra nullius.In the years since Mabo and the Native Title Act (2003) the agenda of Reconciliation flourished and then withered; land rights cases stumbled lead-footed through the courts; and inquiries were mounted into deaths in custody and stolen generations. Meanwhile, the Howard Government’s supporters launched an assault on the scholarship of the 1980s (exemplified by Henry Reynolds) that attempted to delineate more sharply the history of encounters between indigenes and colonizers.

The courtrooms of these last fifteen years are the focus of Rights and Redemption: history, law and Indigenous people (UNSW Press, 2008), by Ann Curthoys (ANU), Ann Genovese (U Melbourne), and Alexander Reilly (U Adelaide). I will confess to having approached this title out of a sense of obligation, fully expecting the driest of legal landscapes. Instead I discovered a lively, challenging, often surprising, and always engaging narrative with replete with plaintiffs, historians, and judges as well as with more abstract considerations of law and justice, history and anthropology.

After an introductory chapter which sketches out the history of the courts’ employment of historians, the first half of the book addresses the “rights” of the title: questions and cases of land rights as argued since Mabo and Wik. The focus shifts in the second half to “redemption”: the law as it tackles past injustices and the possibility of providing relief from the results of actions taken under laws of earlier times. Here the authors look at the problems of genocide and the Stolen Generations. There is also a brilliant exposition of the intricacies of the Hindmarsh Island affair and, in the final case, a look at Indigenous challenges to claims of Indigenous identity in Tasmania.

The authors examine the ways that history has been defined and used in the courtroom, as well as the roles that historians have been called upon to play. One might think this to be a straightforward, simple matter, but the story that Curthoys et al. tell is full of surprises. The first of these perhaps should not be a surprise at all: judges tend to consider themselves entirely capable of interpreting the historical record on their own; they often have seen it as the task of historians merely to locate the documents that comprise this record. And oddly, there may be some justification for this point of view.

First of all, there is the problem of evidence. The law typically admits only direct experience as evidence. Once removed, evidence becomes hearsay. The documentary record as located in diaries, reports, census counts, and other official leavings, conforms closely to the customary understanding of direct evidence as defined by the law. But the historian’s interpretation of that evidence–and modern historians fervently assert that interpretation and understanding of the documentary record is the essence of their work–strays over the line into hearsay. It is what historians tell the court the record means; it is not the record itself.

Thus the failure of the Indigenous land claim in the early Yorta Yorta case in Victoria rested heavily on the Justice Olney’s use of history as presented in the memoirs of one Edward Curr, a Victorian era squatter in the environs of Echuca. Yet some would argue that the facts, as presented by a man engaged in wresting land away from the Yorta Yorta, need at least minimal interpretation and context, a degree of explanation by a trained historian, to gain any degree of impartiality. What is left out of the record can be as important as what survives.

Beyond the question of the admissibility of interpretation, there is a difference between history and legal history. The latter is of crucial importance in the deciding of cases, for it is the body of evidence that has been encoded in prior decisions and judicial opinions: what we familiarly call “precedent.” It is, of course, a much narrower field of knowledge than general history, and it can have a disproportionately significant impact, as was the case in the Gove land rights case, Milirrpum. And yet, as the authors point out, the incorporation of much historical evidence, along with the testimony and cross-examination of historians during trials relating to Indigenous issues in the last fifteen years, has greatly and consequentially enriched the store of legal history.

These are the tribulations of history, particularly in the arena of land rights, where the onus is on the plaintiffs to prove continuity of occupation and custom in the lands they are claiming. Where documents preserved by a displacing and literate culture are seen as the raw material of history, and where these documents are poised against such evidence as can be culled from illiterate and long dead witnesses, inequality before the law seems inescapable. Furthermore, when it comes to questions of contemporary social justice, the authors see “a clear conflict between law’s idea of history as a practice and a jurisprudence, and Indigenous history’s idea of law as a form of justice and politics” (p. 161)

In the question of whether colonizers or the Australian state might be guilty of the crime of genocide, this conflict between jurisprudence and justice is laid bare. While the UN Genocide Convention’s principles may in themselves not address overtly political and cultural genocide, one of the key clauses in the definition of the crime is “Forcibly transferring children of the group to another group.” The catch? At the time that Wajularbinna Nulyarimma brought suit to the Federal Court in 1999, genocide was not a crime in Australia.

Similar problems of definition bedeviled early attempts to redress the wrongs suffered by the Stolen Generations. The historical record proved that the intentions of laws that allowed for the removal of children were benign. Therefore, no-one could be held legally liable for damage that occurred as a result of removals. The single important case where the courts found in favor of the plaintiff and awarded damages, Trevorrow v South Australia, was almost entirely anomalous. Bruce Trevorrow was removed from a hospital where his mother had sent him in the care of a neighbor, as she had no independent means of making the journey from Meningie to Adelaide. Ironically, it was the paper trail of the hospital, the Aboriginal Protection Board, and the Department of Aboriginal Affairs that ultimately led to the decision in Trevorrow’s favor.

Also critical to the successful plea on Tervorrow’s part was the expert evidence offered by a doctoral candidate in psychology at the medical school of Adelaide University. The perceived unimpeachability of “scientific” evidence, in contrast to historical evidence, made a critical difference to the case. Similarly, the credentials of a different set of scientists–anthropologists–were central to controversies in the Hindmarsh Island affair, in which the revelation of secret information to a series of women anthropologists and legal experts was the basis for an attempt to stop the violation of a sacred site at the mouth of the Murray River. The authors are bemused at the difference in esteem afforded anthropologists and historians, for both disciplines certainly involve a degree of interpretation. But justices have seemed willing to accept that the special training of anthropologists to encounter exotic cultures grants them an intellectual cachet. Historians may be required to light on evidence, but they seem not to be required to read it.

In a fascinating conclusion to this history of history and the law, the authors examine the case of Shaw v Wolf, in which representatives of the Tasmanian Aboriginal Centre (TAC) challenged other Aboriginal contenders for election to ATSIC. (TAC claimed that their opponents in the election were not bona fide Aboriginals of Tasmanian descent.) What makes this contest particularly interesting is the way in which highly contested versions of history involving the supposed disappearance of Tasmanian Aboriginals forced the courts to consider the oral evidence and the negative evidence of gaps in the historical record in new ways. With both sides in the case lacking the documentary record that the courts traditionally relied upon, new ground was broken.

It is the unfolding of this story of the Law that compels. The authors chart how the courts have approached Aboriginal issues and evidence, from the early days of Yorta Yorta, when the testimony of a settler written thirty years after the fact (and more than a hundred years before the case came to the court) was accorded the highest standard of credibility, through to the last days of the Howard era, when a significant archive of legal history concerning Aboriginal rights and causes has been accumulated and provides raw material for future cases. Rights and Redemption in itself comprises both evidence and examination, and is all the more engaging and satisfying for that. 

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