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Nielsen, Jennifer --- "How Mainstream Law Makes Aboriginal Women 'Disappear'" [2004] IndigLawB 28; (2004) 6(1) Indigenous Law Bulletin 23

How Mainstream Law Makes Aboriginal Women ‘Disappear’

by Jennifer Nielsen

That an Aboriginal woman may experience discrimination precisely because she is an Aboriginal woman[1] is beyond the grasp of discrimination laws which do not recognise that race and gender (and other characteristics) may have a combined effect on the experience of an Aboriginal woman. Instead, Australian discrimination laws treat the discrimination suffered by a woman as being a universal experience that occurs only on account of her gender.

Women are not all the same

Being a woman is not a universal experience and women are not all the same. This understanding has been at the heart of criticisms made by Aboriginal women[2] and women of colour[3] about white feminist theories, highlighting that what shapes a particular woman’s experience does not depend solely on her gender, nor is it shaped solely by her race.[4] Instead, a woman’s experience is shaped by her gender and her race, and all of the facets that intersect and are woven together. How she is treated by others also depends on the way these intersecting characteristics are valued by a society at particular times and places.[5]

Discrimination laws cannot understand these intersections because these laws define discrimination as an event that occurs on the ground of separate characteristics – that is, because of race or gender or sexuality and so on. Consequently, those who complain of discrimination must attempt to ‘dissect’ their experience into these separate and distinct grounds. Even though it is possible to base a complaint upon more than one ground, each ground of the complaint is considered and must be proved separately from the other.

As a result, when complaining about gender discrimination, an Aboriginal woman is forced to ‘establish that she is just like a white woman’, or if complaining about race discrimination, that she is just like an Aboriginal man even though ‘it is very possible that the discrimination occurred precisely because she was not those people’.[6] Consequently, these laws have the effect of making Aboriginal women ‘disappear’.

Complaints by Aboriginal women

There is a lack of accessible data concerning discrimination complaints made by Aboriginal women. For instance, unless race is a specific ground raised in a complaint, a complainant’s Aboriginality is not recorded in the New South Wales (‘NSW’) Anti-Discrimination Board’s statistical profiles. The Board’s Aboriginal and Torres Strait Islander (‘ATSI’) Outreach Team maintains more detailed statistics, but may not handle all complaints lodged by Aboriginal people. Thus, the Board’s statistics give an incomplete picture of how Aboriginal women are using the Anti-Discrimination Act 1977 (NSW).

Moreover, reported cases involving Aboriginal women’s complaints of discrimination on any ground other than race are unlikely to discuss or acknowledge the woman’s Aboriginality. Conversely, the gender of a complainant is ‘obviously ascertainable because of linguistic convention’[7] that requires us to speak of he or she. Thus, only when an Aboriginal woman bases her complaint (at least in part) on race can we be certain that she is present.

Two studies (in Queensland and NSW) have enquired specifically into the experiences of Aboriginal women using discrimination laws.[8] Broadly, both identified a lack of access for Aboriginal women to information, support and culturally appropriate services to assist them to pursue complaints.

These studies also demonstrated the pervasive nature of discrimination against Aboriginal women, and that this discrimination is not the same as that experienced by Aboriginal men. For instance, women who participated in the NSW study felt that ‘being Indigenous single mothers made them very susceptible to discrimination in obtaining and keeping accommodation’.[9] The study also identified that women may feel powerless in the face of discrimination, and some had a lack of faith in the system due to previous attempts to pursue their rights.[10]

Two particular cases concerning discrimination complaints exemplify how Australian discrimination laws are tainted by an incapacity to ‘see’ Aboriginal women.

The first case, Martin v State Housing Commission (Homeswest),[11] demonstrates that Mrs Martin’s experience of discrimination as a Yamatji grandmother,[12] was ‘divided’ and ‘fragmented’ into distinct and unconnected raced and gendered components.

Mrs Martin lived in housing commission (Homeswest) accommodation in a Perth suburb, with 16 of her children and grandchildren, in part because of the extreme shortage of housing available to Aboriginal peoples in Western Australia (‘WA’).[13] Several of Mrs Martin’s neighbours complained to Homeswest of her family’s ‘anti-social’ behaviours. Though these complaints were never substantiated (indeed, Mrs Martin’s evidence contradicted them), Homeswest evicted Mrs Martin and her family (several of whom were extremely ill) because of the complaints and overcrowding.

Part of Mrs Martin’s complaint was that evicting her due to Homeswest’s policy against overcrowding was indirect race discrimination because of its disproportionate impact on Aboriginal people (due to Aboriginal rates of homelessness). She was affected by this policy because ‘as an Aboriginal woman, [she was] under a cultural obligation to accommodate her children and grandchildren if they had nowhere else to go’.[14]

The WA Equal Opportunity Tribunal rejected the complaint for two reasons. First, they came to the astounding conclusion that it was reasonable to evict people if they were overcrowding houses, despite the fact that overcrowding was a result of homelessness. Secondly, they characterised Mrs Martin’s ‘behaviour as principally because she was a mother, and not because of her cultural obligation’.[15] As McGlade and Purdy conclude, the decision implies that ‘her mothering is cultureless, yet she is indisputably an Aboriginal mother and grandmother’,[16] representing a ‘refusal to acknowledge [her] obligations as an Aboriginal mother’.[17] Thus, it is only at this point that the Tribunal recognises Mrs Martin as a woman. The effect is that her gender is used to deny her Aboriginality.

The second case, V v Red Cross,[18] is one of the few cases involving a complaint of both race and sex discrimination. Ms V undertook a Red Cross First Aid Course. She complained that the training officer stared at her while Aboriginal people appeared on videos, called her a ‘problem child’, blew her kisses, winked at her, said to her ‘why don’t we chew on a roo bone?’ (described as an ‘Aboriginal invitation’ for sex), sat next to her in demonstrations and placed his hand on hers during another demonstration.[19] Commissioner Johnston, of the Human Rights and Equal Opportunity Commission, found that the officer had engaged in sexual harassment, and both sex and race discrimination, and that the Red Cross was liable because it had not taken ‘reasonable steps’ to prevent it.

Johnston found that the ‘roo bone’ comment was aimed at Ms V as an Aboriginal woman and thus amounted concurrently to race and sex discrimination. However, he found that all of the other incidents were aimed at her solely as acts of sex discrimination or sexual harassment.[20] Thus, apart from recognising an overtly raced reference, Johnston did not acknowledge that there were any race dimensions in the remainder of the officer’s sexual and sexist behaviour towards Ms V. There was no consideration that the training officer may have been motivated by a stereotype built on his (white) assumptions about the sexual behaviour of an Aboriginal woman.

In assessing Ms V’s claim for damages, Commissioner Johnston’s only reference to Ms V’s Aboriginality was that he might ‘take notice of the fact that, as an Aboriginal woman, the complainant might well have been offered a post somewhere given that there is a deficit of qualified women in her category’[21] in WA. This was the only consideration he gave to her as an Aboriginal woman in assessing the impact of the discrimination upon her. No evidence appears to have been presented to the Commissioner about this, though it may be possible that Ms V did not feel able to present such sensitive information in this forum. Given what we should have learnt from Robyn Kina’s case[22] and the denial of women’s business to build a bridge at the Kumarangk,[23] it is questionable whether discrimination tribunals offer a forum in which an Aboriginal woman is comfortable to provide evidence of her culture. Ms V’s case was heard by a male Commissioner, no doubt in the presence of a field of male practitioners.

Nonetheless, Johnston specifically found race discrimination present in her case, and so did not need to rely on Ms V’s Counsel to understand that race and gender affected her experience. Yet in determining how the discrimination had affected her, he relied solely on legal principles around sexual harassment which treat the situation as if it involved a white woman being sexually harassed by a white man.[24]

The meaning is lost

Martin’s case and V v Red Cross illustrate how Australian discrimination laws remain unresponsive to the complaints of Aboriginal women. Only in the very limited instance of an overt racial reference as in V v Red Cross, can these laws understand that an Aboriginal woman’s gender and Aboriginality coexist.

But as V v Red Cross also illustrates, even when an Aboriginal woman constructs her complaint as both a form of sex and race discrimination, it has limited effect on enlightening Tribunals because the meaning of that experience is lost, as is what must be compensated.

Mainstream law cannot know an Aboriginal woman

Discrimination laws are flawed by a ‘one size fits all’ solution in which the ‘size’ used to determine the fit is Thornton’s benchmark person – the ‘white, Anglo-Celtic, heterosexual male who falls within acceptable parameters of physical and intellectual normalcy, who supports, at least nominally, mainstream Christian beliefs, and who fits within the middle-to-the-right of the political spectrum’.[25]

Consequently, these laws require Aboriginal women to ‘pluck out some aspect of [themselves] and present this as the meaningful whole, eclipsing or denying other parts of self’.[26] In doing so, they continue to force Aboriginal women to (re)present their identity by reference to mainstream law’s benchmark, so it can propagate its space by means of the ‘apparent legitimacy [of its] outcomes’.[27] This makes it unlikely that an Aboriginal woman could complain of both sex and race discrimination against a white woman, and thus the full extent of an Aboriginal woman’s experience remains unknowable to mainstream law.

Though mainstream law can never really make Aboriginal women ‘disappear’, it does perpetuate the experience of inequality. Legal analyses that ‘speak of gender without discussing the impact of race’,[28] or of race without gender, entrench rather than unpack the way in which ‘patriarchal colonial processes maintain gender, race and class (and other forms of) inequality’.[29]

Our analyses must interrogate ‘the social and political contexts in which ... white [colonial] cultural practices mark out a normative space and set of identities’[30] and thereby construct and give value to the characteristics of an Aboriginal woman at particular times and places. Such analyses are found in the work of Aboriginal theorists,[31] though this work remains under acknowledged.

Mainstream law’s habit of making Aboriginal women ‘disappear’ highlights the urgent rethinking required in our frameworks of legal analysis and requires us to find viable ways to stamp out these normative spaces and identities that continue to deny Aboriginal women the right of being who they are.

Jennifer is a Lecturer with the School of Law & Justice at Southern Cross University.

[1] Nitya Duclos, ‘Disappearing Women: Racial Minority Women in Human Rights Cases’ (1993) 6 CJWL/RFD 25, pp43 - 44.

[2] Larissa Behrendt, ‘Meeting at the Crossroads: Intersectionality, Affirmative Action and the Legacies of the Aborigines Protection Board’ [1997] AUJlHRights 17; (1997) 4 (1) AJHR 98.

[3] Eg, Kimberlé Crenshaw, ‘A Black Feminist Critique of Antidiscrimination Law and Politics’, in David Kairys (ed), The Politics of Law: A Progressive Critique (1990).

[4] Aileen Moreton-Robinson, ‘Masking Gender and Exalting Race: Indigenous Women and Commonwealth Employment Policies’ (1992) 15 Australian Feminist Studies 5, 5.

[5] Janine Little Nyoongah, ‘The Race for Race: Feminist Scholarship and the Positionality Impasse’ (1996) 22(2) Hecate 130.

[6] Duclos, loc cit.

[7] Duclos, op cit, p31.

[8] Alexis Goodstone & Dr Patricia Ranald, ‘Discrimination... have you got all day?’ Indigenous women, discrimination and complaints processes in NSW (2001); Hahine McCaskill & Patimah Molone, A Consultation Project with Aboriginal and Torres Strait Islander Women (1994).

[9] Ibid, p44.

[10] Ibid, p54.

[11] Martin v State Housing Commission (Unreported, EOT WA, 25/7/97). Initially, Mrs Martin successfully appealed: Martin & ors v State Housing Commission & anor [1998] WASCA 58 (18 March 1998). The State Housing Commission’s appeal effectively reinstated the EOT’s original decision: State Housing Commission & ors v Martin & anor [1998] WASCA 327 (7 December 1998).

[12] Hannah McGlade & Jeannine Purdy, ‘From theory to practice, or what is a homeless Yamatji Grandmother anyway?’ (1998) 11 AFLJ 137, p150.

[13] Ibid, p139.

[14] Ibid, p149.

[15] Ibid, p149 (emphasis added).

[16] Ibid, p150.

[17] Ibid, p154 (original emphasis).

[18] (1999) EOC para 92-972.

[19] (1999) EOC para 92-972, 79,199.

[20] (1999) EOC para 92-972, 79,200.

[21] V v Australian Red Cross (WA) [1999] HREOCA 7 (30 March 1999).

[22] R v Robyn Kina (Unreported, Court of Appeal, SC Qld, CA 29 November 1993): Ms Kina’s conviction for her partner’s murder was set aside because her lawyers did not lead evidence that she had suffered years of abuse from him. Ms Kina did not feel comfortable discussing the abuse with her lawyers due to their lack of skill and training in cross cultural communication.

[23] See, Irene Watson, ‘Power of the Muldarbi, the road to its demise’ (1998) 11 AFLJ 28.

[24] Duclos, op cit, p34.

[25] Margaret Thornton, The Liberal Promise (1990), p1.

[26] Audre Lorde, cited by Angela Harris, ‘Race and essentialism in feminist legal theory’ (1990) 42 Stanford Law Review 581, p586.

[27] Valerie Kerruish & Jeannine Purdy, ‘He “Look” Honest - Big White Thief’ (1998) 4(1) Law/ Text/ Culture 146, p 150.

[28] Behrendt, op cit, p102.

[29] Moreton-Robinson, op cit, p9.

[30] Frankenberg, cited by Little Nyoongah, op cit, p138.

[31] Eg, Watson, loc cit.

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