Heather Douglas and Mark Finnane’s recent book extends the nature of this debate. The authors delve into Indigenous Australian inter se homicide cases and colonial commentaries, particularly in Western Australia, New South Wales and the Northern Territory, to show how the criminal courts claimed jurisdiction over Indigenous people, asserted authority and displaced Indigenous laws and systems of punishment.
There are strong reasons to explore issues of sovereignty in the criminal justice arena, notwithstanding the post-Mabo High Court decision of Walker v NSW 2 that disregarded any possible recognition of Indigenous criminal laws on a par with native title recognition. One of the central reasons is the ongoing practice of Indigenous ‘traditional’ punishment and Indigenous efforts to have their system of laws recognised. Another is that, with the introduction of the ‘Intervention’ in 2007, the federal government has regarded Indigenous communities as lawless and incapable of managing their ‘dysfunction’ without top-down interventions — extending the reach of white sovereignty on contentious racial grounds.
This book brings to the table not simply an analysis of the ever-encroaching nature of white sovereignty into Indigenous communities. It provides a nuanced analysis of the relationship between the formal justice system, settler practice and Indigenous responses. In doing so, the authors explore new archival territory beyond the classic NSW colonial sources. The focus on Western Australia attempts to show that the assertion of jurisdiction was not an exclusively NSW claim. By contrast, the discussion on the Northern Territory reveals how Australian frontiers emerged up to a century after the first frontier, continuing to inflict bloodshed alongside the establishment of formal justice mechanisms.
Indigenous Crime and Settler Law opens with an exploration of Ulsterman George Fletcher Moore’s accounts of the frontier at Swan River, Perth as an embodiment of the frail sovereignty in early Australian colonies where there were ongoing conflicts with Indigenous peoples and unstable claims to their land. This was a period when force was the means of establishing authority, long before courts exercised their dominion over Indigenous people. Moments of accommodation were met with moments of violent lawlessness. The authors demonstrate that there is a fine line between the two purposes of the assertion of criminal jurisdiction. On the one hand, it normalised violence through the creation of what Gayatri Spivak refers to as ‘epistemic violence’ (a more subtle form of power organised through colonial knowledges and laws).3 On the other hand, it symbolised British accommodation of different cultures and peoples in order to mitigate violence.
This idea of colonial society’s accommodation of Indigenous cultures is pursued in the following three chapters. Douglas and Finnane illustrate the protective pursuit (albeit uneven) of the courts in relation to Indigenous people by extending the rule of law to ensure that they come within its ambit (particularly through subjecting Indigenous offenders to its domain) as well as the attempts by policymakers to abate violence through the enactment of the Aboriginal Protection Acts in the late 19th and early 20th centuries. However, attempts by policy makers, as well as anthropologists, to suppress violence through the oversight and controls placed on Aboriginal people by Aboriginal protection boards did not cease ongoing violence, with massacres of Aboriginal groups continuing into the 20th century.
Although the book is sub-titled White Sovereignty after Empire, it does not do justice to the extent to which it is about contested sovereignties. Douglas and Finnane detail how the assertion of jurisdiction over Indigenous people has had uneven effects. Indigenous laws and cultures in many Indigenous communities continue to shape Indigenous systems of authority and their daily interactions. A strong theme of this book is that white sovereignty has continuously been challenged by Indigenous people and this has shaped the performance of jurisdiction. In Chapter 6, the authors refer to unsuccessful Indigenous claims for sovereignty in the courts but analyse some of the openings for judicial recognition of Indigenous custom in criminal procedure, especially bail and sentencing.
However, this book’s analysis of formal recognition of Indigenous circumstances is not what substantiates its notion of contested sovereignties. Rather, it is the examination of the ongoing practice of Indigenous laws in remote communities, which the authors highlight in Chapter 7 and the Conclusion. With reference to the Northern Territory, the authors reveal the power of Indigenous laws in maintaining relationships in communities and ensuring their survival. The book challenges the notion that the rule of law is omnipresent. Indigenous resilience has also meant that the assertion of jurisdiction is not simply historical, but also a contemporary issue for Indigenous communities.
This is highlighted in a closing discussion of the Federal Government’s intervention in the Northern Territory. The authors also point to the Yuendumu melee in 2010, where hundreds of community members left the central Australian communities and headed to Adelaide in fear of reprisals because Indigenous ‘traditional’ punishment was not inflicted. The Northern Territory Supreme Court handed down a heavy warning that the court does not tolerate traditional punishment and those dispensing such punishment will be subject to long terms of imprisonment. While Douglas and Finnane critique the postcolonial tide of epistemic violence, they do not give voice to contemporary Indigenous perspectives or delve into the nature of Indigenous laws, which could strengthen their argument about resistance to white sovereignty (or provide a sequel).
The book’s discussion on the Intervention, as well as shifts in criminal sentencing discourses (towards upholding the interests of the victim and away from considering the so-called cultural context of the offender), details the heated debate between the rights of the child and the rights of the Indigenous community. The Intervention also brought to the surface the divide between those who regard violence in Indigenous communities as the product of pre-colonial culture or postcolonial influences and Indigenous displacement. The authors refrain from adopting a position in these debates. They make it clear that violence against women is not necessarily condoned by Indigenous culture and focus on how the formal justice system has been inadequate, especially through criminal sentencing, in accounting for both the concerns of victims and the interests of the community. For me this reveals the failures of the criminal justice system to respond to Indigenous community crime in a way that also provides remedies for the victim and community and the need for alternative justice mechanisms.
Overall, this book is an impressive attempt to synthesise the case law into an analysis of sovereignties, and builds on the authors’ extensive scholarly experience in analysing case law and sentencing narratives on inter se Indigenous crimes. It melds a historical analysis of the legal archive to contemporary issues facing Indigenous communities and policy debates, providing new and more informed analysis and contexts to such debates.
THALIA ANTHONY is a Senior Lecturer in the Faculty of Law at the University of Technology, Sydney.
1. Shaunnagh Dorsett, ‘Since Time Immemorial: A Story of Common Law’ (2002) 26(1) Melbourne University Law Review 15, 15.
2. (1994) 182 CLR 45.
3. Gayatri Chakravorty Spivak, 'Can the Subaltern Speak?' in Cary Nelson and Lawrence Grossberg (eds) Marxism and the Interpretation of Culture (Macmillan, 1988).