Unconscious Racism: Scrutinizing Judicial Reasoning in 'Stolen Generation' Cases
| Published date | 01 December 2005 |
| DOI | 10.1177/0964663905057659 |
| Date | 01 December 2005 |
| Subject Matter | Articles |
UNCONSCIOUS RACISM:
SCRUTINIZING JUDICIAL
REASONING IN ‘STOLEN
GENERATION’ CASES
ELENA MARCHETTI AND JANET RANSLEY
Griffith University, Australia
ABSTRACT
Like other western legal systems, Australian law is based on notions of the rule of
law, justice and equality. Legal formalistic ideology would have us believe that as long
as the law as it appears ‘on the books’ is applied equally for all, justice will prevail.
For Indigenous Australian people, formal equality means that their claims for land,
compensation and the recognition of their culture must be assessed through the eyes
of white judges in white courts. Even when those judges strive to apply the law
equally, they will inevitably be applying Eurocentric beliefs and values. In two recent
significant cases concerning Indigenous claims for their removal from their families
as children, those beliefs and values have tended to invalidate not only the legal claims
themselves, but also aspects of the Indigenous culture. This article argues that the
formal application of legal principles to these claims by Australian courts and judges
leads to the exclusion of Indigenous narratives, which ultimately can be construed as
evidence of unconscious racism. Charles Lawrence’s cultural meaning test is used to
critique the reasoning of the judges in two leading Australian cases concerning the
‘stolen generation’ and to expose the unconscious racism that still exists in the
Australian liberal legal system.
KEY WORDS
Cubillo case; cultural meaning test; Indigenous Australians; Kruger case; stolen
generation; unconscious racism
SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(4), 533–552
DOI: 10.1177/0964663905057659
534
SOCIAL & LEGAL STUDIES 14(4)
INTRODUCTION
LAWANDlegal processes offer hope as a mechanism for transforming
the social and cultural position of colonized peoples (Feldman, 2000),
partly because they can enable the legitimation, in a public forum, of
Indigenous narratives of history. The hope of this occurring was particularly
strong for Indigenous peoples1 in Australia after 1992, when in Mabo v
Queensland (No 2) (1992) the High Court accepted the continuing existence
of a body of Indigenous law relating to entitlements to land, and seemingly
acknowledged the possibility of a pluralist system of Australian law (see
McRae et al., 1991/2003; Levy, 1998; Gray, 2000; Kerruish, 2002). Yet there
is an ongoing tension between the transformative potential of law in recon-
structing public discourse, and its use as a tool for achieving justice for
Indigenous Australians. Law has been a significant instrument of oppression
– first by the application of the doctrine of terra nullius to justify the loss of
Indigenous sovereignty, and then through the continuing use of law to legit-
imize violence, deprivation of land and culture, and effect ongoing discrimi-
nation and social exclusion in their many forms (see Bottomley and Parker,
1997/1999; Watson, 2002). More subtly, law has been an important tool of
cultural destruction, by failing to recognize the separate understandings of
life held by Indigenous peoples, instead translating and assimilating those
understandings into the dominant, white, worldview. Uhlmann (2001) argues
that such assimilation is unjust and violent, but even worse is the violence of
silence:
Indigenous Australians have experienced the worst possible violence of terra
nullius, a silence of non-recognition, and they have experienced the violence of
the totalising monologic discourse of assimilation which sought to reduce their
otherness to the same of white Australia. (p. 46)
Critical race scholars such as Lawrence (1987), Crenshaw (1990) and Delgado
(1995) have described the ways in which ‘legal cultures’ (Cossins, 2003: 99)
can exclude racialized narratives. This exclusion can be illustrated even in the
Mabo v Queensland (No 2) (1992) case, which seemed to offer so much in
Australia. Patton (2001) points out how the High Court established that
native title was not a form of tenure derived from the common law, but failed
to point out that neither was it derived from Indigenous law (Uhlmann,
2001).
One of the main issues in the debate about the role of law in racial narra-
tives is whether judges, when making decisions regarding procedural and
evidential rules, do so equitably without excluding racialized others. Our
concern in this article is with the role of courts and judges in mediating and
accommodating Indigenous narratives in Australia. On the one hand, the
Mabo judgment ‘renewed law’s legitimacy by reconciling it with the “facts”
of history’ (Mathew et al., 1995: 25) and opened up the prospect of courts
redressing the effects of Australia’s colonization and empowering Indigen-
ous people by recognizing their stories. But on the other hand, subsequent
MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES
535
cases have shown courts acting in a very different way, as continuing agents
of colonization in their exclusion of Indigenous narratives. In the Members
of the Yorta Yorta Aboriginal Community v State of Victoria and Others
(2002) case, for instance, the High Court accepted a view of Indigenous
culture having been ‘swept away by the tide of history’, so that a culture
which adapted to accommodate the forcibly imposed requirements of white
culture and law thereby surrendered its Indigeneity.
We examine the judgments in two ‘stolen generation’ (Human Rights and
Equal Opportunity Commission, 1997) cases that illustrate the dynamics
of court treatment of Indigenous narratives. These cases (Kruger v The
Commonwealth of Australia (1997) and Cubillo and Gunner v The Common-
wealth of Australia (2000)) concern Indigenous plaintiffs seeking redress for
damage resulting from their removal from their families as children and
subsequent institutionalization and maltreatment. Kruger and Cubillo were
each brought on very different grounds, but demonstrate, we argue, the
unconscious racism of Australian courts that continues to depict Indigenous
people as an unworthy ‘other’, thereby justifying their exclusion from the
court’s protection. This unconscious racism rests on unstated, shared
assumptions about what constitutes legitimate Indigenous culture and how
Indigenous people should act. We apply Lawrence’s (1987) cultural meaning
test to identify the existence of unconscious racism in these two Australian
court decisions.
We begin with a brief overview of the marginalization of Indigenous
people in Australia, and the role of legal cultures in this process. This is
followed by a discussion of unconscious racism and its application in the
Australian courts.
INDIGENOUS PEOPLE AND LAW IN AUSTRALIA
Aboriginal and Torres Strait Islander people have lived in Australia for at
least 40,000 years. When white occupation began in 1788, their total popu-
lation was around 1.5 million. An estimated 20,000 died in violent conflict as
part of the process of colonization, with many more dying from introduced
illnesses and malnutrition resulting from loss of traditional hunting grounds.
By 1900, their estimated population was as low as about 60,000 people
(Bottomley and Parker, 1997/1999).
Today the Indigenous population is increasing and stands at around
460,000 or 2.4 per cent of the total Australian population (Australian Bureau
of Statistics, 2003). This population is the most disadvantaged in Australia,
and one of the most disadvantaged in the world. Life expectancy for Indigen-
ous males during the period 1998–2000 was approximately 56 years and for
women it was 63 years, both being around 20 years less than the total
Australian male and female population; in 1998–2000 the infant mortality
rate was four times higher than for the rest of the Australian population; the
unemployment rate in February 2000 was 17.6 per cent for Indigenous
536
SOCIAL & LEGAL STUDIES 14(4)
Australians compared to 7.3 per cent for the non-Indigenous population; and
the imprisonment rate as at 30 June 2001 for Indigenous people was 15 times
that of the non-Indigenous population (Australian Bureau of Statistics,
2003).
There have been several policy phases affecting Indigenous people since
1788. In the invasion and frontier phase, Indigenous people were violently
dispossessed of their land, with little protection from the law. In the protec-
tion phase, from the late 1800s to the 1950s, Indigenous people were
corralled into reserves so they could be protected and civilized. In the
assimilation phase, from the 1950s to the early 1970s, policies were aimed at
integrating Indigenous people into white society, by separating them from
their Indigenous culture. Since the 1970s there has been a shift towards the
recognition of Indigenous rights including the right to self-determination
(Bottomley and Parker, 1997).
Use of the legal system to assert these rights has clustered in four main
areas. The first and most ‘successful’ has been land rights, both the estab-
lishment of statutory land rights schemes from the late 1970s onwards, and
from 1992 the recognition of common law native title rights (in the Mabo
case). The second area in which the legal system has been used relates to the
treatment of Indigenous people by the criminal justice system, notably in the
establishment of the Royal Commission into Aboriginal Deaths in Custody
and, more recently, in cases challenging the validity of mandatory sentencing
laws and their impact on Indigenous people. Third, there have been
ad hoc attempts to incorporate into the legal system...
SCRUTINIZING JUDICIAL
REASONING IN ‘STOLEN
GENERATION’ CASES
ELENA MARCHETTI AND JANET RANSLEY
Griffith University, Australia
ABSTRACT
Like other western legal systems, Australian law is based on notions of the rule of
law, justice and equality. Legal formalistic ideology would have us believe that as long
as the law as it appears ‘on the books’ is applied equally for all, justice will prevail.
For Indigenous Australian people, formal equality means that their claims for land,
compensation and the recognition of their culture must be assessed through the eyes
of white judges in white courts. Even when those judges strive to apply the law
equally, they will inevitably be applying Eurocentric beliefs and values. In two recent
significant cases concerning Indigenous claims for their removal from their families
as children, those beliefs and values have tended to invalidate not only the legal claims
themselves, but also aspects of the Indigenous culture. This article argues that the
formal application of legal principles to these claims by Australian courts and judges
leads to the exclusion of Indigenous narratives, which ultimately can be construed as
evidence of unconscious racism. Charles Lawrence’s cultural meaning test is used to
critique the reasoning of the judges in two leading Australian cases concerning the
‘stolen generation’ and to expose the unconscious racism that still exists in the
Australian liberal legal system.
KEY WORDS
Cubillo case; cultural meaning test; Indigenous Australians; Kruger case; stolen
generation; unconscious racism
SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(4), 533–552
DOI: 10.1177/0964663905057659
534
SOCIAL & LEGAL STUDIES 14(4)
INTRODUCTION
LAWANDlegal processes offer hope as a mechanism for transforming
the social and cultural position of colonized peoples (Feldman, 2000),
partly because they can enable the legitimation, in a public forum, of
Indigenous narratives of history. The hope of this occurring was particularly
strong for Indigenous peoples1 in Australia after 1992, when in Mabo v
Queensland (No 2) (1992) the High Court accepted the continuing existence
of a body of Indigenous law relating to entitlements to land, and seemingly
acknowledged the possibility of a pluralist system of Australian law (see
McRae et al., 1991/2003; Levy, 1998; Gray, 2000; Kerruish, 2002). Yet there
is an ongoing tension between the transformative potential of law in recon-
structing public discourse, and its use as a tool for achieving justice for
Indigenous Australians. Law has been a significant instrument of oppression
– first by the application of the doctrine of terra nullius to justify the loss of
Indigenous sovereignty, and then through the continuing use of law to legit-
imize violence, deprivation of land and culture, and effect ongoing discrimi-
nation and social exclusion in their many forms (see Bottomley and Parker,
1997/1999; Watson, 2002). More subtly, law has been an important tool of
cultural destruction, by failing to recognize the separate understandings of
life held by Indigenous peoples, instead translating and assimilating those
understandings into the dominant, white, worldview. Uhlmann (2001) argues
that such assimilation is unjust and violent, but even worse is the violence of
silence:
Indigenous Australians have experienced the worst possible violence of terra
nullius, a silence of non-recognition, and they have experienced the violence of
the totalising monologic discourse of assimilation which sought to reduce their
otherness to the same of white Australia. (p. 46)
Critical race scholars such as Lawrence (1987), Crenshaw (1990) and Delgado
(1995) have described the ways in which ‘legal cultures’ (Cossins, 2003: 99)
can exclude racialized narratives. This exclusion can be illustrated even in the
Mabo v Queensland (No 2) (1992) case, which seemed to offer so much in
Australia. Patton (2001) points out how the High Court established that
native title was not a form of tenure derived from the common law, but failed
to point out that neither was it derived from Indigenous law (Uhlmann,
2001).
One of the main issues in the debate about the role of law in racial narra-
tives is whether judges, when making decisions regarding procedural and
evidential rules, do so equitably without excluding racialized others. Our
concern in this article is with the role of courts and judges in mediating and
accommodating Indigenous narratives in Australia. On the one hand, the
Mabo judgment ‘renewed law’s legitimacy by reconciling it with the “facts”
of history’ (Mathew et al., 1995: 25) and opened up the prospect of courts
redressing the effects of Australia’s colonization and empowering Indigen-
ous people by recognizing their stories. But on the other hand, subsequent
MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES
535
cases have shown courts acting in a very different way, as continuing agents
of colonization in their exclusion of Indigenous narratives. In the Members
of the Yorta Yorta Aboriginal Community v State of Victoria and Others
(2002) case, for instance, the High Court accepted a view of Indigenous
culture having been ‘swept away by the tide of history’, so that a culture
which adapted to accommodate the forcibly imposed requirements of white
culture and law thereby surrendered its Indigeneity.
We examine the judgments in two ‘stolen generation’ (Human Rights and
Equal Opportunity Commission, 1997) cases that illustrate the dynamics
of court treatment of Indigenous narratives. These cases (Kruger v The
Commonwealth of Australia (1997) and Cubillo and Gunner v The Common-
wealth of Australia (2000)) concern Indigenous plaintiffs seeking redress for
damage resulting from their removal from their families as children and
subsequent institutionalization and maltreatment. Kruger and Cubillo were
each brought on very different grounds, but demonstrate, we argue, the
unconscious racism of Australian courts that continues to depict Indigenous
people as an unworthy ‘other’, thereby justifying their exclusion from the
court’s protection. This unconscious racism rests on unstated, shared
assumptions about what constitutes legitimate Indigenous culture and how
Indigenous people should act. We apply Lawrence’s (1987) cultural meaning
test to identify the existence of unconscious racism in these two Australian
court decisions.
We begin with a brief overview of the marginalization of Indigenous
people in Australia, and the role of legal cultures in this process. This is
followed by a discussion of unconscious racism and its application in the
Australian courts.
INDIGENOUS PEOPLE AND LAW IN AUSTRALIA
Aboriginal and Torres Strait Islander people have lived in Australia for at
least 40,000 years. When white occupation began in 1788, their total popu-
lation was around 1.5 million. An estimated 20,000 died in violent conflict as
part of the process of colonization, with many more dying from introduced
illnesses and malnutrition resulting from loss of traditional hunting grounds.
By 1900, their estimated population was as low as about 60,000 people
(Bottomley and Parker, 1997/1999).
Today the Indigenous population is increasing and stands at around
460,000 or 2.4 per cent of the total Australian population (Australian Bureau
of Statistics, 2003). This population is the most disadvantaged in Australia,
and one of the most disadvantaged in the world. Life expectancy for Indigen-
ous males during the period 1998–2000 was approximately 56 years and for
women it was 63 years, both being around 20 years less than the total
Australian male and female population; in 1998–2000 the infant mortality
rate was four times higher than for the rest of the Australian population; the
unemployment rate in February 2000 was 17.6 per cent for Indigenous
536
SOCIAL & LEGAL STUDIES 14(4)
Australians compared to 7.3 per cent for the non-Indigenous population; and
the imprisonment rate as at 30 June 2001 for Indigenous people was 15 times
that of the non-Indigenous population (Australian Bureau of Statistics,
2003).
There have been several policy phases affecting Indigenous people since
1788. In the invasion and frontier phase, Indigenous people were violently
dispossessed of their land, with little protection from the law. In the protec-
tion phase, from the late 1800s to the 1950s, Indigenous people were
corralled into reserves so they could be protected and civilized. In the
assimilation phase, from the 1950s to the early 1970s, policies were aimed at
integrating Indigenous people into white society, by separating them from
their Indigenous culture. Since the 1970s there has been a shift towards the
recognition of Indigenous rights including the right to self-determination
(Bottomley and Parker, 1997).
Use of the legal system to assert these rights has clustered in four main
areas. The first and most ‘successful’ has been land rights, both the estab-
lishment of statutory land rights schemes from the late 1970s onwards, and
from 1992 the recognition of common law native title rights (in the Mabo
case). The second area in which the legal system has been used relates to the
treatment of Indigenous people by the criminal justice system, notably in the
establishment of the Royal Commission into Aboriginal Deaths in Custody
and, more recently, in cases challenging the validity of mandatory sentencing
laws and their impact on Indigenous people. Third, there have been
ad hoc attempts to incorporate into the legal system...
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