369 research outputs found
Mabo explained. by Michael Crommelin
No full textIn this speech, the author clearly explains the complexities of the Mabo case
Rearticulating Indigeneity after Mabo
No full textThe split between some traditional owners and the Northern Australia’s ostensible ‘leaders’ was one of the most remarkable features of the Actcontroversy. Following Beckett’s observation that Indigenous groups ‘cannot be understood apart from their relationship with the state,’ this chapter analyzes the two dominant forms of contemporary political authority – the traditional owner and the executive advocate – as articulated in relation to changing government policies and one another. Given the fundamental inconsistency between the executive advocate and the traditional owner as forms of Indigenous political authority, how have these positions been articulated together in Northern Australia after the foundational 1992 Mabo decision? This chapter argues that as Indigenous people have been ‘recognized’ by the state these two figures have negotiated specific balances between engaging with state power and symbolic or rhetorical performances of differences; balances best understood as a political dynamic between legibility and illegibility.</p
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Mabo in the courts ::Islander tradition to native title : a memoir /
No full text'Mabo in the Courts' is the story of a court case that is a landmark in Australian legal and political history. Narrated by an insider, a lawyer who acted for the plaintiffs, it is at once a memoir and a factual account of dramatic, long-drawn-out, unlikely legal proceedings. The author has also set it against his reflections on the culture and history of the Meriam people of the Torres Strait; his client Eddie Mabo's motivations and premature death; the cut-and-thrust of exchanges between contesting counsel, and between counsel and judges; the effects on the proceedings of political influence and pressure; and the legacy of the High Court's decision, twenty years on. The Mabo Case was a quest for justice by a group of Murray Islanders. In the history of the common law, scores of other cases dealing with Indigenous land rights have been heard in the courts of the former British Empire, and from the Indigenous perspective some were won, some were lost. Mabo, most importantly, was the first of such cases to succeed in Australia
‘Enacted in the destiny of sedentary peoples’: racism, discovery and the grounds of law
No full textWhilst the racial, and racist, basis of the doctrine of discovery is a modern innovation, the doctrine owes much to its pre-modern forms and ethos. The finding and settlement of putatively unknown lands has long been attended with mythic and religious justification and with rituals of appropriation all of which strikingly resemble modern practice. Similarity in this case, however, serves to dramatize difference. What marks modern discovery of the occidental variety is the displacement of the mythic and religious by a combination of racism and legalism. The story of that displacement is told here along with an analysis of the poverty, not to say vacuity, of the doctrine of discovery as a justification for imperial appropriation. Since the story is told in broadly historical terms, its conception of the modern relies on the temporal ‘depth’ which historians usually attribute to this term, the discoveries of Columbus here providing something of a benchmark. But this account of the doctrine of discovery is not an antiquarian exercise, not a tale told in a now entirely discovered world, the unfolding of which may have had its reasons for regret but is now decidedly done with. Rather, this account is modern also in the sense of having current significance, of discovery’s still being an impelling force in the treatment of peoples supposedly once discovered and in the self-identity of those who would claim to have once discovered them, an identity which extends to the grounding of the discoverer’s law. Following the preponderant legal authority on discovery, my ‘case’ study here will come from the history of the United States. The parallels with the Australian situation are, it would seem, close
The white man never wanna hear nothin about what's different from him: representations of laws 'other' in Australian literature
No full textLaw controls our everyday. It regulates our lives. It tells us what is and is not acceptable behaviour, it confers and protects our rights, and it punishes us for our indiscretions. But law does much more than this. It creates normative standards which shape the way people are treated and the way that we relate to each other and to society generally. The law defines people. It constructs identity. And it creates the 'other'. This is a legacy of positivism's insistence on identifying that which is 'inside' law, and so accorded legitimacy, and that which is not. That which does not conform to law's constructed standards and values is identified as 'other' and marginalised and silenced. In this thesis, I demonstrate the way that the law constructs 'other', in particular, the Aboriginal 'other'. I consider the way that Aborigines have been defined by the law to show the consequences that this has had for Aboriginal people beyond the purely legal. I argue that law's construction of Aboriginality has contributed to the marginalisation of Aboriginal people and their exclusion from many aspects of the legal and the social, and that it has silenced them within the dominant domain, denying them the ability to challenge the wrongs perpetrated against them. I examine these issues through the medium of literature. I argue that literature's contribution to exposing, critiquing and challenging law's construction of 'other' is invaluable. It informs the reader about the way that the law has treated Aboriginal people and, more generally, about the structures and limitations of our positivist legal system. It thereby contributes to the community's perception and understanding of the way the law works, and the impact that it has on the lives of its subjects. Perhaps most importantly, it also educates towards social change and reform
In the shadow of the Australian legend: Re-reading Australian literature
No full textThe Australian legend worked as a romantic myth of survival, a foundational grand narrative that legitimised white Australian belonging to the land. The construction of an identity based on the bush ethos and on those values and characteristics recognised as quintessentially Australian helped in the creation of an imagined community. This myth carried a racist underpinning which limited the typical Australian to the category 'white'. Drawing on Foucault 18s discourse analysis I argue that the legend is a discourse, grounded in an untheorised whiteness which defines Australianness. The national identity was modelled on the exclusion of the 'other' from any sense of belonging because Australianness was simply a substitute for whiteness. This exclusion worked on two levels; while it ensured cohesion among whites against a common enemy, it also provided a sense of belonging that could not be questioned because the 'real' Australians, the indigenous people as the common enemy, were left out of a definition of Australianness. Over time this discourse evolved slightly, altering its characteristics, but maintaining its power position and ensuring that its core whiteness remained unaltered. Despite the current claim of a multicultural nation, in fact, the legend is still central to Australian identity and still constitutes the defining characteristic of Australianness. Thus even in a multicultural context where 'white' Australians claim to be just one category among others, they are the ones who define the 'rules' that govern who belongs and who may be granted recognition. In this thesis the evolution of the Australian legend is analysed through readings of key literary texts. While before Federation literature was the major instrument for the construction of the legend and a sense of national identity through an uncritical celebration of the foundational myth, later writing engaged in a critique of the legend and the discourses constructed around it. Contemporary white authors have exposed the discourses of terra nullius and the violence at the foundation of the nation, thus deconstructing the legend. However, their critique is still influenced by their privileged white perspective so that even in their dismantling of the legend there is an implicit celebration of it. It is only when indigenous authors challenge the legend that we find a more radical challenge to the legend and the discourse of whiteness which underpin it. Even then, as argued in this thesis, the legend permeates Australian life and continues to play a role in one 18s understanding of 'Australianness'
Re-evaluating Mabo: the case for native title reform to remove discrimination and promote economic opportunity
No full textThis paper seeks to reanalyse the Mabo case from the point of view of non-discrimination. It argues that the Mabo judgment may have been discriminatory in finding that pre-existing entitlements in surviving native title are restricted to the limited range of activities that can be proven by reference to traditional law and custom and that native title fails as a means of improving the economic and social opportunities of Indigenous Australians because of these restrictions. It suggests that native title law should be reformed on the basis of possession to recognise Indigenous peoples’ full and beneficial ownership of their land where this has not been extinguished.
The allocation of property rights to Indigenous people should not be limited by misguided and discriminatory assumptions about Indigenous culture and custom. About the Author Shireen Morris is the Constitutional Reform Research Fellow at Cape York Institute for Policy and Leadership. Her areas of research work include constitutional reform, racial discrimination, native title and, more recently, family violence and child reunification in Indigenous communities
Media release
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