Indigenous Law Bulletin
by Loretta Kelly
In 1998, I was appointed to a tenured position as an Associate Lecturer in the School of Law and Justice at Southern Cross University (‘SCU’), under the Indigenous Employment Strategy. In 1997 – prior to my appointment – I taught at SCU’s College of Indigenous Australian Peoples (‘CIAP’) as a casual lecturer. At CIAP I was fortunate to be the founding teacher of a subject called Dispute Resolution and Aboriginal Communities (an area directly linked to my doctoral thesis). I continue to teach this subject at CIAP thanks to the cooperation of the Law School and CIAP. At the Law School I teach mediation, dispute resolution, restorative justice and welfare law. You may be wondering ‘why doesn’t she teach a subject on Indigenous legal issues?’ The reason for this is explained a little further on.
I am, at this moment, putting the finishing touches to a textbook. Needless to say, I’m quite fed-up with legal jargon and academic speak. Story-telling is a huge part of my traditional culture so I’ll take this opportunity to tell a bit of my story as a legal academic – even though writing ‘in the narrative’ is not so acceptable in legal scholarship. I’m choosing to speak from my heart – ‘to inject narrative, perspective, and feeling.’ This means that I (generally) won’t seek references to support my claims. I agree with many of the issues raised in this special edition: Indigenous academics continue to be under-represented at law schools and Indigenous perspectives are often excluded from core subjects and marginalised in elective units. I will take this argument further: it is not sufficient just to include Indigenous legal issues in the curriculum of core and elective subjects; nor is it sufficient to appoint Indigenous lecturers to law schools. Indigenous law academics need to have opportunities available to teach and publish in areas where we have unique and valuable perspectives. This is not about giving us something. It is about recognising expertise.
I always wanted to be a teacher of some sort. When I told one of my teachers at high school that I’d love to be a teacher one day she responded, ‘Aborigines don’t become teachers’ and ‘what could someone like you possibly have to say?’ I quickly put that desire in the back of my mind, but the seed remained there for many years – I just needed some nutrients for it to germinate.
During the final stages of my law degree, I observed and reflected on the law academics whose teaching I admired. Having completed an Arts degree concurrently, during which I undertook several Aboriginal Studies subjects, I reflected on how much more I had enjoyed my learning experience when I was taught Goori issues by Goori teachers. I thought to myself, ‘I reckon I could do that!’
When I studied Indigenous Peoples and Legal Systems in the second-last year of my law degree, and the lecturer was non-Indigenous, I was sceptical. I naively wondered why this academic lectured in this subject when, by that time, I knew so many Aboriginal law graduates. To my surprise, a cohort of non-Aboriginal students said to me one day after class, ‘We’d much prefer to listen to you than [the lecturer].’ I didn’t pursue the issue at that time but, as the semester went on, and the students continued to make similar comments, I asked, ‘Why would you prefer to listen to me?’ They said that it was because I was Aboriginal and they wanted to hear my direct experience of the legal system. When we discussed Mabo and native title they wanted to know what I thought and how it would impact on my family. When we ‘learnt’ about over-policing and Aboriginal deaths in custody they wanted to hear stories of my family’s experience with police and prisons.
At SCU, subjects specifically dealing with Indigenous legal issues are taught through CIAP. The Law School does not teach a specific subject on Indigenous legal issues. Students undertaking the Bachelor of Legal and Justice Studies must undertake one of the Indigenous legal issues subjects offered by CIAP. The majority of these subjects are taught by a Koorie academic who considers himself an Indigenous law academic (although he does not hold a law degree), because he is skilled in Indigenous legal issues – an argument that has merit. Of course, as a Goori lawyer, I’d enjoy teaching a subject on Indigenous legal issues, but that isn’t readily available to me. Not that I’m directly prevented from teaching it, but rather my substantive position is at the Law School and my teaching responsibilities lie there.
There are, however, subjects at the Law School that I could be involved in teaching, particularly where Indigenous legal issues are on the agenda. This issue arose again recently when I saw the teaching program for our external LLB (law degree) workshop on ‘statutory interpretation’. The case being used not only involves an Aboriginal defendant, but the defendant is one of my in-laws. I asked why I wasn’t requested to teach this topic. The response was that they thought that I was too busy doing research and they didn’t want to bother me. Yes, I am busy, but my view is that I need to be bothered because these issues are important. Indigenous perspective and content is essential to understanding the complex interaction of the law and our culture.
It seems that the major dilemma facing my colleagues is this: they’re concerned that by offering an Indigenous academic, say, a single lecture on the Hindmarsh bridge matter during the constitutional law course, that this might be interpreted as tokenistic or even racist. So my colleagues may, out of fear of negative interpretations, avoid making the offer at all. Furthermore, they may not wish to ‘bother’ or ‘overwhelm’ the Indigenous academic with such requests. The unintentional result is exclusion of the Indigenous academic.
A colleague suggested that for Indigenous academics to automatically be allocated the subjects relating to Indigenous issues would be tantamount to racism. Personally, I’d prefer an ‘automatic’ allocation, but I imagine that there are Goori academics who would like to teach in a variety of areas. Nevertheless, the priority should be for Indigenous academics to deliver Indigenous content – and once this has been achieved we can then use our intellectual energy in other areas.
My personal view is that where a Goori person is available to teach (in any educational setting) and the issue being taught relates to our mob, then the Goori person should do it provided he/she is qualified to do so. I have previously addressed this issue in relation to mediation and restorative justice. A non-Aboriginal academic had these thoughts in relation to publishing on Aboriginal mediation:
[I]t is simply not practical to abdicate the field and leave research and writing about alternative dispute resolution to those Aboriginal women in the academy. The number of Aboriginal women legal academics, for example, is minute and only one is presently publishing on alternative dispute resolution. Abdicating the field to Aboriginal women would be a recipe for the disappearance of the perspective of Aboriginal women in most areas of research and scholarship on alternative dispute resolution. [emphasis added]
I realise that things have changed since this was written; nevertheless I challenge this argument. I contend that if non-Aboriginal academics cease writing about Aborigines (whatever the discipline), the resulting ‘vacuum’ will draw more Aboriginal researchers and practitioners to the publisher’s table.
When discussing the issue of affirmative action in academia, I like to consider the example of a subject called Gender and the Law at SCU’s Law School. We are in the process of developing this subject and all female law academics are involved in work on the curriculum. If male academics were developing this subject, their validity would surely be challenged by us women!
In reflecting on this situation I’ve realised that of the women involved in developing the unit, all teach in core subjects where Indigenous legal issues are part of the curriculum. Yet I have not once in my time at the law school been asked to teach the Indigenous component of the curriculum. I do not believe this is because of any racism by law staff. In fact, the opposite is true – many of my law school colleagues have been, or are closely involved in the fight for Indigenous rights.
Ironically, it is the enthusiasm of some academics for Indigenous rights that may lead to the exclusion of personal Indigenous perspectives. Law can be such a passionless discipline, yet Indigenous rights is one of those areas that excites the intellect and the emotions. The relationship of Indigenous people to the Anglo-Australian legal system is something that goes to the heart of legal process and legal theory. It constructs our national identity and can even impact on the personal identity of non-Indigenous Australians. How we deal with that history (remembering that history is everything that has happened before this moment) challenges who we are. The perspective that a Goori brings to teaching this ‘journey’ is quite different. It can still be exciting – although in the sense of agitation rather than enthusiasm. Yet my perspective involves heartache, anger and worthlessness. Law schools teach about the legal broomstick called ‘terra nullius’ that allowed Britain to brush Australia clean of Indigenous society, but only us fellas who come from under the rough end of the broom can describe the view from the floor! There are now many sweepers who have pure motives – some try to brush us back into the picture, others try not to disturb our dusty lives. Except for the occasional dust storm, we remain silent to the sweepers.
I want to make it clear that, in my experience, it is not the staff members teaching these subjects that put up the primary barriers to Indigenous people teaching in the area. The barrier is an administrative one: teaching-load formulas.
So what can the ‘powers that be’ do to ensure that Indigenous content is taught by Indigenous academics? Well it comes down to that dreaded ‘r-word’ – ‘resources’. They’d have to allocate funds toward my teaching in these subjects so that the academics responsible for the units are not disadvantaged. Also, I don’t want to have to teach a heavier load, so arrangements would have to be made to cover my teaching of the subjects for which I’m responsible.
There is also the argument regarding academic freedom and the validity of non-Aboriginal academics teaching/researching/publishing on Aboriginal-specific legal issues. I believe that the work of a non-Aboriginal academic (engaged in Aboriginal issues) lacks ‘fullness’ without significant input from an Aboriginal person. If this work is a publication, the input should be acknowledged by co-authorship. Yet throughout Australia, Indigenous legal pedagogy continues to be dominated by non-Indigenous academics. They continue to develop the curriculum, conduct the research, teach the subject and publish in the field.
What forum will they have to teach in their ‘area of interest’ if we Aborigines monopolise the field? It’s a difficult debate. It raises the historical issue of dominance of white people over every aspect of our lives, as well as the question of self-determination.
In the United States, the so-called standpoint epistemology is a hotly-debated philosophy, at least in relation to African-Americans. Sadly, Native Americans are so marginalised that they barely feature in this debate. One can imagine that a man writing about feminism would have to go to great lengths to explain – at least in the preface to their work – how their masculinity does not negate their thoughts on feminism. Yet I continually notice how often – in books, articles and conference papers specifically dealing with Indigenous legal issues – that a non-Indigenous author fails to deal at all with the fact that they are non-Indigenous. Many don’t even mention the fact that they are non-Indigenous! I give at least some credit to those non-Indigenous authors who try to explain their validity (and morality) in writing on the topic. I should add an important proviso, which is that co-authoring with an Indigenous writer generally allays my concerns.
Advocates for academic freedom might argue that academics have the right to research, write and teach on any subject they like. However, if non-Indigenous law academics continue to assert this right, there is simply little room left for the ‘unknown’ Indigenous academic. Marginalisation is certainly not their aim, but it is undoubtedly the outcome. Our little dust pan just doesn’t compete with the big broom.
Loretta Kelly BA LLB (NSW) is a Goori woman from the Gumbaynggirr and Dhanggatti nations of the north coast of New South Wales. Loretta teaches on Bundjalung land (Lismore, NSW) but feels blessed to be able to live on Gumbaynggirr country (immediately south of the Bundjalung; Dhanggatti is south of Gumbaynggirr). Loretta is a Lecturer at the School of Law and Justice, Southern Cross University. ‘A special thanks to Antony Barac for his editorial support. Thanks to my friends and colleagues (in alphabetical order): Greta Bird, Jim Jackson, Mick Martin, Jen Nielsen and Nikki Rogers, for yarning with me about this article.’
 L Behrendt and L Kelly, Aboriginal Dispute Resolution Second Edition: Focus on Native Title Mediation (working title), (2005 forthcoming) Federation Press.
 Many, but by no means all, who have been telling legal stories are members of what could be loosely described as outgroups, groups whose marginality defines the boundaries of the mainstream, whose voice and perspective – whose consciousness – has been suppressed, devalued, and abnormalised. The attraction of stories for these groups should come as no surprise. R Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1991) 79(4) California Law Review 2411, 2412.
 Ibid 2411.
 Those who come to mind are Susan Armstrong and Prue Vines at the University of NSW and Helen Gamble at the University of Wollongong (where I undertook cross-institutional studies).
 To the academic who reads this and realises it relates to him, I apologise for any offence I may cause you. I’m simply reflecting on my experience and you were part of that.
 Mabo v State of Queensland (No 2)  HCA 23;  175 CLR 1.
 I place this in inverted commas as I was not learning about these issues for the first time – my earliest memories are of the law’s intrusion into my family’s life.
 We do have a Law School subject – Aborigines, Torres Strait Islanders and the Law – ‘on the books.’
 This argument goes as follows: allocating all Indigenous legal subjects automatically to Indigenous academics implies that we are not ‘good enough’ to teach mainstream law subjects.
 C Honeyman, B C Goh and L Kelly, ‘Seeking connectedness and authority in a mediator’ (October 2004) Negotiation Journal; L Kelly, ‘Using Restorative Justice Principles to Address Family Violence in Aboriginal Communities’ Chapter 11 in H Strang and J Braithwaite (eds), Restorative Justice and Family Violence; L Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’  IndigLawB 4; (2002) 5(14) Indigenous Law Bulletin 7; L Kelly, ‘Stirrings - Recent Developments in NSW in Aboriginal Family Mediation’  IndigLawB 14; (2002) 5(15) Indigenous Law Bulletin 14; L Kelly and E Oxley, ‘A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing’  IndigLawB 12; (1999) 4(18) Indigenous Law Bulletin 4.
 H Astor, ‘Mediation Initiatives and the Needs of Aboriginal Women’, paper delivered to the Second International Mediation Conference: Mediation and Cultural Diversity”, Adelaide, January 1996, p 2.
 To all of my dear sisters, friends and colleagues who realise that this relates to you please do not be offended. This is a reflective piece and I’m exploring these issues for the first time. Also by the time this article goes to press, I’ll probably have so many offers from you to teach on blackfella issues that I’ll wish I didn’t raise the issue (only gammon!).