Indigenous Legal Judgments

Bringing Indigenous Voices into Judicial Decision Making

Nicole Watson, Heather Douglas, Nicole Watson, Heather Douglas

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000401240
• Edition: 1
• Topic: History
• Subtopic: Australian & Oceanian History
• Index: History

This book is a collection of key legal decisions affecting Indigenous Australians, which have been re-imagined so as to be inclusive of Indigenous people's stories, historical experience, perspectives and worldviews.

In this groundbreaking work, Indigenous and non-Indigenous scholars have collaborated to rewrite 16 key decisions. Spanning from 1889 to 2017, the judgments reflect the trajectory of Indigenous people's engagements with Australian law. The collection includes decisions that laid the foundation for the wrongful application of terra nullius and the long disavowal of native title. Contributors have also challenged narrow judicial interpretations of native title, which have denied recognition to Indigenous people who suffered the prolonged impacts of dispossession. Exciting new voices have reclaimed Australian law to deliver justice to the Stolen Generations and to families who have experienced institutional and police racism. Contributors have shown how judicial officers can use their power to challenge systemic racism and tell the stories of Indigenous people who have been dehumanised by the criminal justice system.

The new judgments are characterised by intersectional perspectives which draw on postcolonial, critical race and whiteness theories. Several scholars have chosen to operate within the parameters of legal doctrine. Some have imagined new truth-telling forums, highlighting the strength and creative resistance of Indigenous people to oppression and exclusion. Others have rejected the possibility that the legal system, which has been integral to settler-colonialism, can ever deliver meaningful justice to Indigenous people.

1
INTRODUCTION

Nicole Watson and Heather Douglas¹

Indigenous people have often been objects of rather than voices heard in judicial narratives and decisions. In this new and original collection, 16 key Australian judgments² have been rewritten in order to be inclusive of Indigenous peoples’ histories, experiential knowledge, and world views. Each judgment is preceded by a short commentary that places the case in its social, policy, and legal context, explains the judgment being rewritten, and explains what the rewritten judgment does differently. Judgment writers were given the option of working within legal doctrine or inventing a new method operating outside of legal doctrine to give voice to Indigenous people. This approach recognised the reality that many Indigenous people live under both the laws of the Australian state and the distinct laws and lore of their own communities. It also allowed for the exploration of the possibilities, limits, and implications of introducing an Indigenous voice to judging and the potential for a new and distinct perspective to reimagine justice through an Indigenous lens.

The collection includes decisions spanning over 150 years, from 1889 to 2017. The new judgments are characterised by intersectional perspectives which draw on postcolonial, critical race and whiteness theories. In this introduction, we outline the project inspiration and then discuss the approach of the writers and their experience of the rewriting process. We have arranged the cases in this collection into five overlapping and interrelated themes. These themes and the judgments that have been rewritten for this collection will be briefly discussed in this chapter, placing them within the story of Aboriginal and Torres Strait Islander peoples’ engagement with Australian law.

Project inspiration

The project draws its inspiration from the emergence of feminist judgment-writing projects around the world, beginning in Canada³ and subsequently taken up in the United Kingdom,⁴ Australia,⁵ New Zealand,⁶ and the USA.⁷ Other projects have applied a similar method of reimagining judgments, for example, in relation to children’s rights,⁸ the environment,⁹ and international law.¹⁰

In particular, this collection has drawn inspiration from a handful of judgments in previous projects that have been rewritten in an Indigenous voice. For example, the Women’s Court of Canada¹¹ reconsidered the Federal Government’s decision to exclude Indigenous women from negotiations on the right to self-government in Native Women’s Association of Canada v Canada.¹² In the Australian Feminist Judgments project, three Indigenous women took different approaches in rewriting judgments. The Tanganekald Meintangk Boandik scholar, Irene Watson, was asked to rewrite the decision, Kartinyeri v Commonwealth.¹³ Professor Watson responded with an essay explaining why it was necessary for her to speak from a position of Indigenous sovereignty, and thus impossible to take on the persona of a judge in the Australian legal system whose very existence denied that sovereignty.¹⁴

The Torres Strait Islander scholar Heron Loban, who has family connections to Mabuiag and Boigu, rewrote the decision, Australian Consumer and Competition Commission (ACCC) v Keshow.¹⁵ In that case, the respondent, Keshow, entered into unscrupulous financial transactions with Indigenous women in remote communities. Loban’s objective in rewriting the judgment of ACCC v Keshow was to ensure that the Indigenous women complainants had a voice.¹⁶ She achieved this goal by creating the fictitious role of the Indigenous judge, who, as a matter of practice, is included in the resolution of all matters in the Federal Court that concern Indigenous parties.

The Munanjali and Birri Gubba scholar, Nicole Watson, revisited the decision, Tuckiar v R.¹⁷ Tuckiar, a Yolngu man, was convicted of the murder of a police officer in 1933. The High Court quashed Tuckiar’s conviction because he had been denied a fair trial. Watson provided great scope for optimism about the possibility of writing judgments with an Indigenous voice in her futuristic reimagining of this case.¹⁸ She envisioned a treaty had been concluded between Aboriginal and Torres Strait Islander nations and the Republic of Australia. Under the treaty, a First Nations Court of Australia was established to revisit past decisions and find justice.

Finally, the New Zealand Feminist Judgments project included six judgments that applied a ‘mana wahine’ approach, that is, an approach that placed Maori women and their concerns at the centre.¹⁹ Elements of a mana wahine framework include: making Maori ways of life visible in the text, identification of rights and obligations sourced in Maori law, consideration of the realities of Maori life in the application of legal tests, and paying respect to Maori values and principles.²⁰ This framework was applied to cases concerning the administration of social security legislation,²¹ legislation banning prisoners from voting in general elections,²² Maori fishing rights,²³ Maori land law,²⁴ criminal law,²⁵ and sentencing.²⁶ The range of approaches to rewriting and reimagining these cases underscores the diversity of Indigenous voices.

Writers’ approaches and experiences

Each judgment in this collection is accompanied by a commentary that explains the facts of the case being rewritten, the issues involved, the original decision(s) made in the case, and what the rewritten judgment does differently. Indigenous academics and practitioners are the primary writers of each decision and they are often teamed with a non-Indigenous writing partner. Most of the contributions, both judgments and commentaries, are co-authored. For many of the cases, the co-authors are both Indigenous and non-Indigenous. These partnerships show how Indigenous and non-Indigenous people can work together in a respectful way to promote the rights of Aboriginal and Torres Strait Islander people through legal judgment.

Two rounds of workshops were held in Sydney and Brisbane with the contributors and others who were supportive of the project. At the first workshops, participants had the opportunity to hear from current and retired judges about the audience for judgments, how to construct a judgment, the use of contextual and extrinsic materials, and the use of judicial notice. There was also an opportunity for judgment and commentary writers to introduce the case they planned to rewrite and talk to the group about the importance of the case selected. The second round of workshops provided an opportunity for judgment and commentary writers to present their drafts, receive feedback from other participants, and discuss and debrief about the rewriting experience.

For many participants, the experience of revisiting the facts of the judgment and ‘unpacking’ them was one of the most challenging aspects of the writing process, but also one of the most valuable. Some participants identified that reconstructing facts through Indigenous eyes provided an opportunity to learn about not just what was said, but also what was missing in the original judgments and, therefore, whose stories were privileged. The rewriting process often exposed assumptions about the concept of ‘relevance’, the notion of ‘expertise’, and the choices made about which evidence is highlighted in judgments. For several participants, the rewriting process underscored the political aspects of cases and affirmed that legal interpretation is a political exercise undertaken, overwhelmingly, by privileged white men who bring their biases to the task. It is notable that in Australia, the judiciary is still mainly composed of white men.²⁷ In contrast, there are fewer than ten Aboriginal or Torres Strait Islander judges and magistrates presiding in Australian courts.²⁸ In response to these gaps and interpretive choices, some used the rewriting process as an opportunity to resurrect the missing stories of Aboriginal people and Torres Strait Islanders or tell them in a new way. In this sense, rewriting judgments can be understood as a way of making meaning or ‘storying’.²⁹ Such efforts also suggest that the privileged white men who are at the helm of the judiciary can do more to incorporate the voices of Indigenous parties and witnesses in their judgments.

Several participants found that the writing process revealed the limitations of the common law. Some participants made comments reminiscent of Audre Lorde’s declaration that ‘the master’s tools will never dismantle the master’s house’.³⁰ Some participants also expressed concerns about how Aboriginal and Torres Strait Islander people could engage in the space of colonial law and write in a way that did not give colonial law absolute power.³¹ One writer asked whether, in demonstrating the possibility of rewriting a judgment within the boundaries set by the common law, the author was shoring up the law’s jurisdictional power and limiting critique. As the Gomeroi scholar, Alison Whittaker, observes in her note explaining why she wrote a poem for this collection, ‘It’s easy to reveal the structural racism of settler law—it’s very hard to imagine a way out of it that doesn’t replicate that structure’.³² In her early work, Carol Smart made ...