Aboriginal Storytelling and Judicial Decision Making
19.04.2021
It is impossible to imagine life without stories. From the moment that we come into the world we are taught all kinds of stories. Stories explain our origins, teach us how to be members of families and communities, and give us hope during times of uncertainty. Like many Aboriginal children, my brother and I grew up in a family of gifted storytellers. It was through their words and gestures that my brother and I learnt the stories of cherished grandparents, the indignities surrounding their removal from Country, and the rules for how to live a good life. When I was accepted into Law School in the 1990s, I was introduced to another kind of storytelling – judgments.
Although I found the judgments that we studied to be interesting, I was often disturbed by the treatment of the Indigenous people who featured in them. They were often hidden behind the offensive representations through which many Australians have come to know Indigenous people. The strong and vibrant adults of my childhood could not have been further from the silhouettes of the human beings whose names appeared at the top of the judgments.
One of the cases that I studied at law school, which I have often reflected upon over the years, was a 1934 decision of the High Court, Tuckiar v R (1934) 52 CLR 335. Tuckiar (a corruption of the appellant’s real name, Dhakiyarr), was an esteemed leader of the Yolngu of Arnhem Land. He was convicted of the murder of a police officer, Constable Albert McColl. In August 1933, McColl had been a member of a police party that travelled to Woodah Island to investigate the deaths of some Japanese fishermen. Soon after landing the party apprehended some Yolngu women. Although the women were not suspected of committing any crime they were restrained in handcuffs. After receiving word that a group of Yolngu had alighted nearby, the police party scattered. Some went to find the new arrivals. McColl, however, stayed with the women. McColl was not seen alive again. His body was found the following morning. McColl appeared to have died from a spear wound to his chest. Dhakiyarr was charged with McColl’s murder and sent to Darwin. Following a trial in the Northern Territory Supreme Court, conducted in a language that he did not understand, Dhakiyarr was found guilty and sentenced to death. A number of anomalies served to deprive Dhakiyarr of a fair trial, and his conviction was quashed by the High Court.
Law students are often taught this case in the context of ethical obligations owed by lawyers to their clients. But I have always remembered the case because of the treatment of the Indigenous people whose lives were dramatically changed by the events on Woodah Island.
Although Dhakiyarr and his countrymen were grown men, they are referred to as ‘boys’ in the judgments of the High Court. The Yolngu women were also reduced to nameless ‘lubras;’ a very offensive term. As law students we were concerned only with the legal principles to be taken from the case. But if we had cared about Dhakiyarr and his story, we would have learnt that he disappeared soon after his release from prison. All these years later, his family still do not know what became of Dhakiyarr. Although, it has long been suspected that police officers were responsible for his death.
Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision-Making
Judges no longer refer to Indigenous people by derogatory terms such as ‘boy’ and ‘lubra’. But their stories are, for the most part, absent from judgments. For this reason, much of my scholarship has been about how to bring Indigenous peoples’ stories into the decisions of Australia’s courts, and the classrooms of Australia’s law schools. Last year, my colleague, Professor Heather Douglas, and I published a book called, Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making. The book is a collection of 16 judgments of Australian courts that have been reimagined from Indigenous perspectives. We borrowed the methodology of re-writing judgments from various feminist judgment writing projects from around the world. Beginning with the Women’s Court of Canada, feminist legal scholars have shown how women’s voices and stories can brought from the margins to the centre.
Together with our colleagues who reimagined the judgments, we wanted to show that it was possible for judges to be respectful and inclusive of Indigenous peoples’ stories. We also wanted to demonstrate how this could be done. The judgments came out of collaborations between Indigenous and non-Indigenous legal scholars. They cover a wide range of areas of law, including criminal law, torts, family law, administrative law, and constitutional law. We gained several lessons from the process of reimagining the judgments.
Firstly, we were reminded that there is a great responsibility in telling anyone’s story. That responsibility is amplified when the person has been the victim of an injustice. Some of our colleagues chose to re-write decisions that concerned people they knew. Because of those connections they were conscious of the need to be respectful of ongoing trauma experienced not only by the individuals in the story, but also their families and communities. Secondly, we were reminded that Indigenous people rarely secure justice in Australia’s courts. Even when legal justice is delivered, the consequences imposed upon the perpetrator of a wrong often do not reflect the gravity of the harm suffered by the victim.
Indigenous Voices Working with Settler Law
Finally, engaging in the process of judgment writing carries a risk for Indigenous lawyers and legal academics. By choosing to work within the very legal system that denied our ancestors’ sovereignty, and continues to legitimise a violent invasion, we can become complicit. As one of our colleagues, Alison Whittaker wrote in the 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’.
At least two of our Indigenous contributors declined to re-write their judgments because they were unwilling to take the risk of being complicit. Instead, Alison Whittaker wrote a poem, and Osca Monaghan wrote a powerful essay on why it is impossible to write a judgment that honours Indigenous people and our legal traditions, while, at the same time, affirming the primacy of settler law.
Ultimately, we did not have a solution to such important issues. What we have achieved, however, is an accessible tool for Australian law students to learn about settler law from Indigenous peoples’ perspectives and historical experience. At least two law schools, Melbourne Law School and the College of Law, Australian National University, have purchased special editions of our book for their first-year law students. Other law schools have begun to prescribe chapters of the book in their core subjects. We hope that other scholars will take up this project and continue the dialogue about how Indigenous people’s stories can be honoured in judgments.
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Nicole Watson belongs to the Munanjali and Birri Gubba Peoples of Queensland. She is currently employed as the Director of the Academic Unit in the Nura Gili Centre at UNSW
