Indigenous Law Bulletin
by Hannah McGlade
I once thought of my own experiences as an Indigenous law school lecturer as isolated and individual, but never again since I encountered the world of United States (‘US’) critical race theory (‘CRT’). This prominent and liberating movement positions race and racism as fundamental to American society, it privileges the lived stories of people experiencing racism and oppression and acknowledges the multiple and intersectional nature of oppression. CRT also embraces an ‘activist dimension’, not just understanding racial hierarchies but seeking to transform society for the better. It had no real place in the legal academy in which I was given the opportunity to train as a law teacher.
In ‘The Imperial Scholar’ leading CRT scholar, Professor Richard Delgado detailed the silencing of US African American, Native American and Hispanic legal scholars by the Imperial Scholars; the white academics who dominate US legal education and civil rights orthodoxy. Delgado, who at the commencement of his career was himself encouraged to engage with mainstream and not civil rights law, documents the existence of a ‘racially biased scholarly tradition’ consisting of white scholars’ ‘systematic occupation of, and exclusion of minority scholars from, the central areas of civil rights scholarship’. This marginalisation by white scholars is not confined to the United States law schools of the 1970s. It resounds closely with my own experiences within Australian legal education.
In the late 1990s I was offered a position as an Associate Lecturer at the Murdoch University School of Law, Western Australia. I had graduated from the School in 1995 and was its first Aboriginal law graduate (and later postgraduate). As an indication of the nature and history of race relations in the State of Western Australia, I can say with a sense of sadness and pride, that I was the first Aboriginal woman or Noongar yorga to make my way through a Western Australia Law School. My law teacher training opportunity came about, practically speaking, as a result of the commitment of the Labor Federal Government of the time to increasing the participation of Indigenous people in higher education. In other words, the University received a generous grant to subsidise the employee position. In accepting the position I made it clear that I wanted to teach and critically research race and Aboriginal legal issues. Although that was readily agreed to by the Dean, who I believe had a sincere commitment, it was not the reality that followed for me in my four-year term of employment.
My first week on the job was not altogether smooth. Walking down the corridor I overheard a loud phone conversation about me from the office of a senior staff member. It was overly apparent that this person, who was not my supervisor and who was apparently supportive of Aboriginal peoples’ education in the law, was patronisingly discussing my whereabouts with the administrative staff. A simple knock on my door would have sufficed but old stereotypes die hard it seems. I later had to counsel distressed Aboriginal students after this same lecturer made an inference in a lecture associating the Aboriginal student tutorial assistance scheme with prohibited student collaboration.
Unfortunately the committed School Dean took his opportunity to move out of parochial Perth not so long after my academic cadetship started and with him went my opportunity to teach, autonomously and critically, issues of race and Aboriginality. A senior staff member soon resolved that the course of Aboriginal Legal Studies was to be taught by a newly appointed non-Aboriginal lecturer, whom I later recalled from my first year contracts tutorial at the Australian National University (‘ANU’). I can still remember ANU and the contract tutor questioning me on the appropriate contractual remedy. ‘He’d have to cough up the bucks’ I correctly responded, and realised again the unnamed but real ostracism that happens when you don’t speak that kind of language or wear those clothes, and where our very Aboriginal presence was objected to by the student body as some kind of favouritism. This was ANU, a groundbreaking Law School that had opened its doors early to prospective Aboriginal law students.
Although I voiced an objection to that Aboriginal Legal Studies teaching opportunity being agreed to and then withdrawn, I was simply told that ‘no one owns courses Hannah’. That was of course technically true, but the fact remains that no man at the Law School ever taught feminist legal studies; the white women feminists taught that unit and that was that. I have learnt many times since that the day of the minstrel show is not over.
My cadetship incorporated the opportunity to undertake a postgraduate degree, a very real and valuable opportunity that I am grateful for today. This led me to the field of race discrimination law, and as an Indigenous person I soon felt compelled to not just write about what I saw from the very few existing texts and cases, where so much went unnamed, distorted and not rectified, but to also take action on behalf of the Noongar community that I was a part of and indebted to. Within my time at Murdoch Law School I initiated a number of test cases under the Racial Discrimination Act 1975 (Cth) and those cases now stand for legal principal. My contributions in this respect however merely positioned me as a threat to powerful white establishment figures, members of whom governed the University itself.
In 1997 I was a new mother and appalled to read in the morning newspaper of the death of a homeless Aboriginal baby whose extended family had been evicted and forced to sleep in cars. There was a legal matter being heard by the state Equal Opportunity Tribunal (‘EOT’) concerning the eviction of an Aboriginal grandmother and her family by the State’s public housing body, Homeswest. I attended the hearing and met the plaintiff, an elderly Yamatji lady of great fortitude, Mrs Joan Martin. I had experienced homelessness myself while growing up and the run-down State houses with sometimes a whole family sharing the one room. I felt kinship towards this lady who cared so much for her grandchildren, 14 of whom had been relegated to the streets. The President of the EOT, Mr Nicholas Hasluck, did not mention the International Convention on the Rights of the Child at all in his judgment. Hasluck found there was no race discrimination and that Mrs Martin had refused Homeswest’s order to stop housing her family (and overcrowding her premises, in breach of Homeswest’s tenancy conditions) on the basis that she was ‘a mother’, rejecting expert anthropological evidence that established her cultural obligations as an Aboriginal grandmother.
I was angry about the judgment and I wrote a letter to the State’s newspaper criticising the judgment of President Hasluck, son of the late Paul Hasluck a former Australian Governor General (and signatory of the historic International Convention for the Elimination of All Forms of Racial Discrimination in the 1960s).
I’m not sure when the President might have read that letter as I was told by a verifiable source that his family and that of the University Vice Chancellor, well known Reconciliation Australia figurehead Fred Chaney, had been holidaying together in the Greek Islands. A short time later, on their return, presumably, a complaint about my letter to the paper was tabled at the University Senate. I was formally reprimanded by the University and counselled by my Dean, a former Law Reform Commissioner and now a Supreme Court judge.
Joan Martin had lost her case in the state Equal Opportunity Tribunal despite strong evidence that the neighbourhood complaints against her had been racially motivated (complete with an ABC interview with the eviction ringleader, a South African expatriate who voiced her views in support of apartheid, Australian-style) and despite the anthropological evidence about her cultural obligations as a Yamatji grandmother. We talked after the case and Mrs Martin wanted, more than anything, to appeal against the injustice of her eviction and the decision of the President. Although I was an inexperienced law teacher, I knew I had an obligation to her and the many others who were being unfairly treated by Homeswest. I had met Jan Mayman, a respected Walkley Award-winning journalist who’d covered the case for The Canberra Times and The London Times. With Anglican social justice activist Anne Annear and the famous Sister Veronica Brady, a support team for Joan soon emerged. We then sought out well-known human rights barrister Moira Rayner for her opinion, hoping to persuade the local Aboriginal Legal Service to act for Mrs Martin. That was unfortunately to no avail and I alone was left with the job of making sure that Mrs Martin had her day in court. I can’t say how it happened; with some late nights and my husband’s help, I managed to cobble together the required appeal to the Supreme Court. Mrs Martin and the support team happily met me at the court on the last of the 28 days we had to file the appeal. We triumphantly made the mark with our $500 filing fee! Fortunately a well-known Perth Labor law firm soon agreed to continue the case pro bono for Mrs Martin.
Justice Wallwork in the Supreme Court later accepted the cultural evidence led by Mrs Martin at trial, finding that Homeswest had indirectly discriminated by evicting on the grounds of overcrowding. His Honour did not accept the EOT President’s attempt to categorise Mrs Martin’s actions on what CRT leader Kimberl’e Crenshaw would describe as a ‘single categorical axis’, adopting a ‘single issue framework for discrimination’ rather than ‘a doctrine of intersectionality’ and failing to recognise multiple forms of oppression to the detriment of women of colour.  That decision, which stands today as the only Supreme Court finding of racial discrimination against an Aboriginal person in Western Australia, was later overruled by the Full Court.
Nonetheless, Homeswest did not stop their evictions and cases against them to the Equal Opportunity Commission did not stop either. They resulted in a groundbreaking inquiry by that body, initiated by the barrister (and later EOC Commissioner) we had contacted for the legal opinion. The Inquiry, which I assisted, has now made long-reaching recommendations for change at the Housing Department’s policy and procedural level. I was surprised to read a column in The Australian newspaper on the Inquiry by the abovementioned barrister,
More than a decade ago, I gave a legal opinion about a complaint by an Aboriginal woman of racial discrimination against the WA State Housing Commission, the only complaint by an Aborigine that has been substantiated in a WA tribunal in the past 20 years. My opinion gave her the confidence to make her complaint and a Perth law firm the justification to run the case for free. There are still some Don Quixotes, thank god. The Aboriginal Legal Service wouldn't touch it.
Law School gave me the legal tools to challenge discrimination, and it punished me for using those tools. There are no Aboriginal law teachers employed at Murdoch today. There are none employed in any Western Australia university.
 R Delgado and J Stefanic, Critical Race Theory: An Introduction, (2001).
 R Delgado ‘The Imperial Scholar: Reflections on a Review of Civil Rights Literature’, in K Crenshaw et al (eds) Critical Race Theory, The Key Writings that Formed The Movement (1995) 46-47.
 Ibid 48.
 As described compellingly not once, but twice by Delgado, above n 2.
 See further Hannah McGlade, ‘Sharing Jurisdiction, Indigenous People’s Place in Race Discrimination Law’, (2002) Balayi, Journal of Culture, Law and Colonialism.
 For further discussion see H McGlade and J Purdy ‘From Theory to Practice: Or what is a Homeless Yamatji Grandmother anyway? Joan Martin v Homeswest (1998) 11 Australian Feminist Law Journal 137.
 See further, A Wing, Critical Race Feminism: A Reader, (2003).
 State Housing Commission v Martin  WASCA 327.
 Equal Opportunity Commission, Finding a Place: An Inquiry into the Existence of Discriminatory Practices in Relation to the Provision of Public Housing and Related Services to Aboriginal People in Western Australia, (2004).
 Moira Rayner, ‘Inside the Squalor of Aboriginal Lives’, The Australian (Sydney) 16 December 2004, (adapted from a longer version at <http://www.newmatilda.com/home/articledetail.asp?ArticleID=392> at 27 January 2005).