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Biber, Katherine --- "The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia" [2017] SydLawRw 13; (2017) 39(3) Sydney Law Review 277

The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia

Katherine Biber[∗]


Lindy Chamberlain is the victim of Australia’s most notorious miscarriage of justice; in 1982 she was wrongly convicted of the murder of her baby daughter, Azaria. In the decades following her exoneration, Lindy Chamberlain-Creighton, as she is now known, came to an arrangement with the National Library of Australia to care for the papers she had accumulated as a result of her daughter’s death and the legal processes that followed. This article examines the ‘Chamberlain Papers’ through the lens of materiality and scholarship associated with the ‘archival turn’ in the humanities, social sciences and information sciences. This approach affords an understanding of documents as objects, artefacts and technologies. Working materially with documents provides new opportunities for legal scholars to understand files, papers, recordkeeping and bureaucracy, and gives legal significance to papers created outside the law.

‘[H]istory is that which transforms documents into monuments’.

Michel Foucault[1]

‘This is all we have that remains of Azaria’.

Lindy Chamberlain-Creighton[2]

I Introduction

Lindy Chamberlain is the victim of Australia’s most notorious miscarriage of justice. The papers she accumulated as a result of her legal ordeals, and which are now held in the National Library of Australia (‘NLA’), demand that legal scholars and practitioners think differently about law. By attending to the materiality of papers and records, we can apprehend one of law’s hidden constituencies: a typically-silent and law-abiding public who, between 1980 and 2012, were motivated to become active lay practitioners of law. This article shows how the papers generated by the Chamberlain case, and which are primarily comprised of personal letters written to Lindy Chamberlain, can acquire legal significance. In addressing one of law’s victims, they address legal power, legal violence, legal process, legal error and, ultimately, legal transformation. The existence and preservation of the Chamberlain Papers invites us to notice law’s presence in places not typically associated with legal practice and practitioners. This article demonstrates that these papers are nevertheless legal materials, and command legal attention to concepts of materiality and archival theory.

In 1980, Lindy Chamberlain’s nine-and-a-half week-old baby, Azaria, was taken by a dingo from the family’s tent during a camping trip at Uluru, but Lindy and Michael Chamberlain were tried and convicted of her murder. Following her conviction, Lindy Chamberlain was imprisoned, where she gave birth to another daughter who was separated from her several hours after she was born. After Lindy had served almost three years in prison, the chance discovery of Azaria’s matinee jacket prompted a Royal Commission into the convictions.[3] The Chamberlains were later exonerated and compensated. A final coronial inquest in 2012, concluding on the day after Azaria’s 32nd birthday, confirmed that Azaria was killed by a dingo.

In the decades following her exoneration, Lindy Chamberlain-Creighton, as she is now known, came to an arrangement with the NLA and the National Museum of Australia, each of which she chose to care for the papers and material artefacts she had accumulated as a result of her daughter’s death and the coronial and criminal processes that followed, as well as the Royal Commission.[4] Whether these papers played any literal role in the Chamberlains’ eventual exoneration is difficult to assess. The letters, discussed below, did identify potential new evidence and witnesses. The Chamberlain Innocence Committee, and other individuals and groups, worked strenuously for their cause, and their papers are held in the NLA.[5] 150 000 people signed a petition to the Governor-General of Australia calling for a judicial inquiry. Professor Julius Stone called publicly for an independent judicial inquiry. Two former federal Attorneys-General called for Lindy’s release on licence. The former New South Wales Supreme Court judge, Sir Reginald Sholl, wrote an open letter to every member of Federal Parliament. Around 40 000 people wrote personal letters to Lindy during and after her imprisonment. With the advantage of hindsight, these reams of paper are legally significant.

This article examines the afterlife of the Chamberlain Papers in the NLA as the archived remainder of Azaria’s life and death, and the records of her parents’ extensive misadventures in the law. In so doing, it demonstrates that law is materially present in the objects and papers that have survived from this case.

By bringing into law the concepts and theories of material culture, this article shows how, in their afterlife, these materials acquire legal significance.

This article uses the Chamberlain Papers to draw the attention of legal scholars to a transformation that has already occurred within the humanities, social sciences and information sciences. Known as the ‘archival turn’, it brings to the surface questions about the materiality of documents, understanding them as objects, artefacts and technologies. Understanding documents as forms of material culture brings forth newer humanities scholarship about the ‘vibrancy’ attributed to things, where their materiality exerts a force or power that is distinct from their informational value.[6] The Chamberlain Papers are vibrant in precisely this way. As data, they certainly contain a great deal of treasure for scholars and creative practitioners; but working with them materially provides new opportunities for legal scholars to understand documents, papers, recordkeeping and bureaucracy.

II The Archival Turn

Papers, administration and bureaucracy are certain indicators of law’s presence. Once law’s work has concluded, these papers survive in what has been termed an ‘afterlife’, where they might acquire new meanings or be forgotten altogether.[7] The storage of law’s papers might occur in a court registry, a lawyer’s office, a retired detective’s garage or a State archive, and is the subject of contemporary studies concerned that these are records ‘at risk’ of being destroyed or forgotten.[8] The ‘archival turn’ demands that we are attentive to the nature of the archive as an institution, and the materiality of the things found within it. An archive need not be an official State recordkeeping institution, but can encompass any intentional accumulation of materials with a view to their future retrieval. More traditional understandings of the archive imagine it as the place where documents go to live indefinitely, die, or be resurrected by scholars in the future. The art historian Sven Spieker described two competing visions: ‘a giant filing cabinet’ and ‘a giant paper jam’,[9] invoking the tension between knowing a document is in there, somewhere, and a sense of suffocating overabundance. The archive is understood in the context of its relationship with the State, as Jacques Derrida wrote in his book Archive Fever: ‘There is no political power without control of the archive, if not of memory.’[10] The archival turn interrogates the institution of the archive itself, its claims to authority, and its political, cultural, legal and emotional effects. In the context of recent scholarly concerns that any accumulation of materials might be understood as an ‘archive’,[11] and caution urged ‘not to void [the term “archive”] of any specific meaning’,[12] the archival turn invites us to think anew about the purposes, uses and effects of accumulated papers.

A focus on the materiality of law demands that we pay attention to architecture, paper and markings. Starting with the physical spaces in which documents are created and preserved, we also follow their literal journeys through institutions, as they are passed from hand to hand, left on shelves, leafed through, or packed away in a box. Another effect of material thinking is its ability to reimagine papers as objects, demanding that we see documents as things. In so doing, we are able to see the object in relationship to its own past, but also we are able to provide it with a future that may never have been imagined by its creator. As Derrida wrote on the archive, ‘if we want to know what [it] will have meant, we will only know in times to come’.[13] Here, papers from the past, many of them once thought to be inert or garbage, are resurrected in an unexpected afterlife. This demands a temporal understanding of papers and attention to the passage of time. For historians, the concept of ‘historicism’ demands that documents be interpreted in the context of the practices that produced them, and which the legal historian Christopher Tomlins has reminded us is complex and contingent.[14] In The Archaeology of Knowledge, Foucault recognised that the work of historians had shifted away from the location and interpretation of documents and towards ‘defin[ing] within the documentary material itself unities, totalities, series, relations’.[15] The philosopher Georges Didi-Huberman shows us that the ‘afterlife’ or ‘survival’ of a cultural object need not be a chronological certainty, but might represent an eruption, a displacement or a haunting.[16] Every archival scholar has experienced, albeit rarely, the dizzying sense of disbelief or astonishment at having retrieved a document that should not be there, but nevertheless is, and its survival eventually eclipses its informational value. This is partly what Foucault meant when he wrote that history ‘transforms documents into monuments’.[17]

Working materially with documents, we must also look at the page itself, its structure and arrangement, the way it has been marked or annotated and its connections to other pages. Tomlins draws upon this kind of ‘paratextual’ analysis of documents because it creates ‘the conditions upon which a reader enters into an engagement with [the document]’.[18] In part, the material analysis of documents marks a revival of interest in ‘diplomatics’, first described in the 17th century by Jean Mabillon,[19] as the study of specific characteristics of documents, relying upon structure, patterns, source and style. Originally a technique for the analysis of medieval documents, diplomatics in modern records has been recovered as a technique for historical research, taking the document as both a source and a subject in itself.[20]

Historians have embraced the archival turn, where document-based research is now conducted with awareness of the physical environment of ‘the archive’, and the architectural, personal, emotional and tactile effects of archival labour. Evident in Timothy Garton Ash’s memoir The File,[21] and most commonly associated with Carolyn Steedman’s book Dust,[22] a considerable outpouring of scholarly historical work represents this new material engagement with the archive.[23] In the context of Holocaust memorialisation, Yad Vashem, the major archive of Holocaust-related documentation in Jerusalem, regards its collection as ‘paper tombstones’.[24] Drawing upon this association, Alana Valentine, the playwright of Letters to Lindy who researched the Chamberlain Papers in the NLA said of that collection, ‘It’s a resting place for Azaria’.[25]

Important moves within the archival turn have been made in the work of anthropologists, whose ethnographic and descriptive methods have begun to be adopted by some legal scholars. In Along the Archival Grain, anthropologist Ann Laura Stoler recognised that records do more than prove what happened; in them we might also find ‘the visionary and expectant’, ‘scrupulously planned utopias’ which, for the legal scholar, draws a close analogy with law’s vocation.[26] Stoler’s work demands that we pay attention to the form, placement and organisation of records, so that the archive is not so much a source as an ‘epistemological experiment’.[27] Through her work, we come to understand records as embedded within ‘cultures of documentation’,[28] and gaining a clearer understanding of that culture provides legal scholars with important tools for the interpretation of these records. Anthropologist and legal scholar Annelise Riles has also urged scholars to examine documents as ‘ethnographic artefacts’, wherein ethnographic methods of analysis and description might bring distinctive epistemological, ethical and aesthetic attributes to the surface.[29] Working with documents ethnographically, Riles explained, helps us to understand them as distinct from the bureaucracy that created, mandated or preserved them.[30] For the anthropologist Bruno Latour, law’s materials make law ‘visible’, enabling it to be ‘located and traced’.[31] His book, The Making of Law, describes his immersion in one of France’s superior courts, and provides a compelling account of the folders, shelves, pigeonholes, meetings and file work that mark the law’s progress from dispute to judgment.[32] The slow and purposeful accumulation of papers, the construction and consultation of files, their movements around the building, and their gradual inching towards a decision, in Latour’s study, represents a paradigmatic instance of the material study of law. As explained by legal scholar Alain Pottage, ‘materiality’ refers not to the things themselves, but rather to ‘the kind of agency that is afforded by, elicited from, or ascribed to them’.[33] Material agency draws our attention to ‘density, conformation, disposition, and operability’ of our tools, and the ‘gestures, perspectival axes, and textual traces’ they generate from those who act with or upon them.[34] In Pottage’s critique of Latour, he argues that material thinking has tended ‘to give substance to the assumption that there is such a thing as “law”’.[35] In effect, some scholars have used materiality to help them ‘find’ law in places it traditionally has not been thought to dwell, a project that Pottage challenges.[36] Pottage suggests we work in the opposite direction, ‘ask[ing] whether a reflection on materiality might not actually lead to the dissolution of law as a social instance’.[37]

For legal scholars, a major contribution to thinking materially about records and documents was made in the work of Cornelia Vismann through her book Files, in which she argued that it is through documentation and recordkeeping that law is actually produced.[38] By paying close attention to the making of documents, their movements and their management, their amendments, annexures and cancellations, Vismann likely inaugurated material thinking into legal discourse. She wrote, ‘Legal studies lack any reflection on their tools’; ‘Files remain below the perception threshold of the law’.[39] Instead, she finds traces of law in papers that might otherwise be found to be ‘analytically invisible’, ‘mundane’,[40] the registers, indexes, forms, lists and templates generated by bureaucracies that are not consciously engaged in acts of self-description or self-documentation.[41] Vismann’s book is, in Tomlins’ view, ‘an object lesson in how to write of law fetishised as things’; and in the ‘technologies of administration, decision, and execution, of things fetishised as law’.[42]

Law’s work is evident in the volume of papers it leaves in its wake, and a material engagement with documents also enables us to glean law’s aspirations and failures, its false starts and its valiant attempts. In Bonnie Mak’s work, we apprehend through our tactile encounters with the page, the fusion of meaning and materiality.[43] By understanding papers, files and folders as legal instruments, probative of the incremental accretion of ideas, decisions and strategies, we assume a new perspective on how law is made, enforced and preserved.

III In the Chamberlain Papers

In researching this article, I had the privilege of speaking to Lindy Chamberlain-Creighton about the materials and papers that she accumulated during and after the coronial and criminal proceedings associated with Azaria’s death, her imprisonment and release, the Royal Commission, and the subsequent proceedings associated with compensation and exoneration.

Following her release from prison, Lindy Chamberlain made an arrangement with the NLA, which sought to acquire her papers. Subject to ongoing continued donations, the Papers of Lindy Chamberlain, 1944–2010, is a manuscript collection comprising correspondence, poetry, photographs, telegrams, newsletters, books and drawings.[44] It fills 213 archive boxes, one carton, and six folio boxes. It also includes Lindy’s personal copies of the legal transcripts of her proceedings, many of which contain annotations and marginalia.[45] There is also a large body of material (12 boxes) relating to Lindy Chamberlain’s autobiography Through My Eyes.[46] There are associated collections, including materials of the Chamberlain Information Service, one of the support groups, (27 boxes, one folio box), and collections from the many other groups and individuals who offered support to the Chamberlains and championed their innocence.[47] There are also materials related to Lindy’s involvement as a leader in the Seventh Day Adventist Pathfinder Program, and the making of the television mini-series Through My Eyes (12 boxes).[48] The NLA also holds Azaria Chamberlain’s birth details and her hospital identity bracelet;[49] it has Lindy Chamberlain’s strike statement of 1986, reflecting her plan to go on strike from prison labour following the Northern Territory Government’s refusal to hold a judicial inquiry into her conviction.[50]

The Chamberlain Papers are not, strictly speaking, legal records; most of them were produced outside and after the legal processes they addressed. However, legal scholars have begun to demand a broadening of the concept of ‘legal records’ and this aligns with the legal scholarship of Vismann, Latour and others who have argued that documentation produces law; paper might be implicitly lexogenic.[51] The distinction between the ‘life’ and the ‘afterlife’ of the case might give rise to a separation of ‘legal’ and ‘extra-legal’ papers. However, this article asserts that the afterlife of the case — in which a conviction became wrongful, and in which legal institutions lost credibility — has the capacity to bring the extra-legal within law’s domain, reminding us that at the centre of this archive is one of law’s victims. The Chamberlain Papers intermix legal materials with non-legal materials, and this mixing is significant because it was undertaken by Lindy Chamberlain herself. As the legal subject at the heart of a scandalous conviction, inquiry and exoneration, Lindy’s collection and arrangement of the papers becomes a significant feature in itself. These personal papers, correspondence and ephemera acquire further significance for legal scholarship because of the criminal processes that provoked their making, their retention, their arrangement and their current access arrangements. Although not ‘legal records’, formally understood, they were all triggered by law’s failure, and they record for posterity what the law has done.

The NLA negotiates a ‘rights agreement’ with all donors.[52] This document governs the way a particular collection is to be accessed and used. It explains that ‘access’ permits viewing and note-taking, and ‘use’ means copying, publishing or some public exposure of the material. The rights agreement establishes the manner in which the donor is to be contacted in relation to inquiries, and identifies nominees who are permitted to serve in their place in the event of the donor’s unavailability or death. It enables the donor to place limitations upon access or use of all or part of their collection, but demands that any limitations operate for ‘a reasonable period of time’ and are approved by the Curator of Manuscripts. These limitations might require the specific permission of the donor for access to identified series’, folders or boxes, or might keep certain materials closed until certain dates or events have passed, with the death of the donor being the most common event that triggers the removal of restrictions (the standard rights agreement repeatedly suggests ‘after my death’ as the preferred form of words). The agreement also invites donors to contemplate the digitisation of the materials, and the NLA’s commitment to providing digital access to manuscripts through its website. It asks donors to consider whether the material might be used by the NLA itself in its own publications, or made available to outsiders who might wish to use it in publications, films, performances, transmissions, broadcasts, in online media, or in other public ways. Once the rights agreement is finalised, the NLA claims ownership of the papers and undertakes to manage them in accordance with the agreement.

The current Curator of Manuscripts, Kylie Scroope, explained to me that in most cases where a donor’s permission to access or use papers is required, permission is granted; the access control is simply a mechanism that enables the donor to know what is being done with their papers, rather than an attempt to limit their use.

When Lindy Chamberlain was in Darwin Prison following her conviction, thousands of people sent her letters and cards. After her release from prison, thousands more wrote to her. At that time, Lindy had received more than 20 000 letters from strangers,[53] some of them addressed to her at ‘Lindy at Ayers Rock’, ‘the Darwin courthouse’, or simply ‘Darwin’.[54] Since then, and following the advent of electronic mail, Lindy Chamberlain-Creighton now estimates she has received over 40 000 letters and emails in total. She told me that initially the Chamberlains had no clear plan for retaining the letters: ‘We kept them, and then it became more and more, and some of them had extremely interesting material’.[55] Through the letters, for instance, the Chamberlains discovered a large body of evidence about dingo attacks that had not been presented at their trial; they also discovered the names of people who had been camping near them when Azaria was taken, and who had never been called as eyewitnesses. She continued, ‘They all just went into a box: too busy; deal with it later. [...] Better not start throwing anything away yet. They just went [...] into a box, then got bigger and went into a tea chest and two boxes. That was after we filled the filing cabinet up’.[56]

Lindy told me, ‘I came out of prison thinking we’ll just keep a few significant ones and I’d burn the rest’.[57] She recounted the day in 1986 that two archivists from the NLA visited her home: ‘They had knocked on the front door, got no reply, thought they’d try the back door and walked round to see me with the letters. I was burning them in a big bin’.[58] She estimated having burnt around 50 letters and, following that visit, immediately desisted from any further destruction.

A few years later, another manuscript librarian, Graeme Powell, visited her home in Cooranbong in order to commence the appraisal process. He recalls:

[W]e could see immediately that the papers were extensive. They were mostly on the floor, some in boxes, others just heaps of loose papers, with letters mixed up with cuttings, leaflets, and an array of objects. ... In a short visit it was hard to assess the value of such a disorganised archive, but it did seem to us that it documented in detail a family tragedy and, in addition, public attitudes towards the Chamberlains, and the public campaigns to secure Lindy’s release and exoneration.[59]

Following that encounter, the Chamberlain Papers were rapidly examined and an arrangement was made between the Chamberlains and the NLA to acquire the papers, but Lindy wanted the opportunity to review the papers, to ensure that any personal disclosures were protected. Then, on further thought, she wanted to organise them. She tells me, ‘So I said “yes” and then I thought “well, they can’t go in like that; they should be filed”.[60] So I started filing, picking out things that I thought should be particularly mentioned’.[61] Alana Valentine, whose 2016 play Letters to Lindy is drawn from the letters held in the NLA, spoke to me about researching the letters. She told me:

I’ve spoken to Graeme Powell. ... He described to me a marvellous event where he went to Lindy’s house and the letters were all in this chaotic form. Then when he came back a month later, it was all beautifully archived and he said he had a sobering moment where [Lindy] was telling the children what to do and he realised that his job was so sophisticated that a seven-year-old could do it.[62]

Prior to acquisition, the collection was appraised. One of the collection’s independent valuers wrote: ‘The style and spirit of its ordering is such that it offers an unusual degree of completeness. It has been assembled in a fashion so rigorous that it is almost impossible to imagine an instance of conscious or willing exclusion’.[63] What Lindy Chamberlain achieved was transformative, and is a feature of the Chamberlain Papers that is much-mentioned by archivists, scholars and others who use the collection.[64] As Powell described:

A large quantity of the papers had been filed, each file had a sticker with a summary of the contents, and they had been put in alphabetical order in boxes. The files were colourful, as Lindy had colour-coded her correspondence. Letters addressed to her were in blue folders, letters addressed jointly to Lindy and Michael were in red folders, letters to her parents were in green folders and so on. In addition, the files were divided into ‘specials’ and ‘ordinaries’. The filing, annotating and classifying by Lindy Chamberlain and her parents involved a huge amount of work and greatly enhanced the usability and the research value of the archives. It meant that we now had a good idea of the range and content of the material that we were acquiring.[65]

Lindy introduced other classifications too. For instance, hostile letters, which were usually anonymous, might be classified as ‘nasty’ or ‘nut’.[66] The playwright Alana Valentine, was particularly enthralled by Lindy’s arrangement of her papers. She asked me: ‘Is it alright to talk about how the papers are filed? The papers are meticulously filed’.[67] Valentine, a verbatim playwright with a successful background in making theatre from archival sources, spoke to me about the process of writing her play Letters to Lindy. She described being attracted to the Chamberlain Papers in part because of their organisation. Other peoples’ papers, Valentine told me, are ‘just chaos. There’s electricity bills and dead mice’.[68] The current curator of the Chamberlain Papers, Kylie Scroope, agrees, recalling instances when the NLA has gone to collect materials and ‘there’s just piles and piles of boxes’.[69] Scroope, who spoke to me about the management of the Chamberlain Papers, observed tactfully, ‘I guess what I would say is there are some people who are natural recordkeepers and there are some people who aren’t’.[70] By contrast, when Valentine commenced her Harold White Fellowship at the NLA, awarded in 2013 for her to undertake the research that formed the basis for Letters to Lindy:

Well, the first day, the librarian took me up to the stack and showed me the 199 boxes and I pulled out one of the first boxes and there was this row of blue manila folders. They were beautifully filed. Each letter writer had their own manila folder. When you pulled the file up, on the top of the blue folder, there was a little yellow Post-It note in which Lindy, I found out, had précised everything that was in the letter. So if I was interested in dingo stories, I need just go through. So it was just magnificent. Your heart sang, it was so beautifully organised.[71]

Scroope described Lindy’s approach to arranging her papers: ‘I think it’s unusual in the sense that her particular approach is — “idiosyncratic” is maybe the wrong word, but it is relatively unique’.[72] A distinctive feature of Lindy’s organisation of her papers, the ‘specials’ referred to by Powell, was what Valentine described as a ‘star system’, and which she regarded as a powerful insight into the character, control and tenacity of Lindy Chamberlain:

One star for something she thought was pretty good, seven stars for something she thought was amazing. Frequently in the seven star letters, or even in any of the star letters, she would have comments on the page. So you can imagine, my heart was just exploding with joy at this because I not only had Lindy on my shoulder looking over me, I had this kind of evidence of the sort of control and meticulous sense of importance of her own story that had kind of repulsed people about Lindy. So what I was now thrilled by and loving about her, immediately rapturous about, she had been publicly castigated for in a way, that sort of magnificent control and meticulous control of herself.[73]

Chamberlain-Creighton was mindful that, while liberating herself of the burden of having to store this enormous trove of paper, she also wanted to maintain her right to access these materials, and this arrangement was agreed. In handing all of the papers to the NLA, she also handed to them the responsibility of ensuring that letters written by an author who had sought privacy, or who had asked Lindy not to reveal a personal disclosure, would have this promise fulfilled. She also ensured that access was limited for personal papers associated with her surviving children; some materials are not accessible during her lifetime, or Michael’s, or someone else’s. She alluded to the sensitivities or risks associated with providing access to some documents when she told me, ‘I’ve written notes on some of them of what I thought of them at the time’.[74]

The NLA identifies itself as the ‘keeping place’ for records that define Australian ‘collective identity’ and ‘record the range and diversity of the national story’.[75] The Chamberlain Papers’ previous archivist at the NLA, Adrian Cunningham asserted that they ‘reveal the depth of emotional involvement in the Chamberlain case experienced by countless thousands of ordinary Australians’.[76] Most of the letters came from supporters of Lindy, 90% were sent by women, and many described themselves in their letters as ‘ordinary Australians’.[77] The criminologist Adrian Howe, who has conducted research in the letters, examined the self-professed ordinariness of the writers, for instance, ‘Who am I? ... just another mother, a fellow Australian, a Christian ..., I drive a white HQ Holden with scratches on the paintwork’: ‘You don’t know me. I’m just another Christian mother’; ‘I’m not a Christian, so these feelings are just my own strong views’; ‘just a face in the crowd’.[78] She also draws attention to the self-conscious attempts of their authors to convey their feelings: ‘Dear Lindy, may I call you Lindy? I feel that I know you’; ‘I feel so helpless’; ‘I feel so upset at the injustice that has been done’; ‘if I meet you I will feel as though I am meeting an old friend’; ‘I feel deeply for you in a human and spiritual sense’.[79] For all of their emotional and affective impact, as a collection the letters become records of and for the law; they directly address the law, and they demand that a legal error be corrected.

The intimate and personal nature of some of the letters, as explained by scholarship into the epistolary form, gives rise to questions about privacy, confidence and disclosure. As Maryanne Dever and colleagues have written, ‘In the normal course of events, we do not regard kindly those who read other people’s mail and poke around in the private papers. Yet, scholars confronting intimate archives appear licensed to do just that’.[80] Scholars of the epistolary genre, as Rosanne Kennedy wrote, have observed ‘a strong association between femininity, epistolarity, and privacy’ in personal letters.[81] Since 90% of the letters in the Chamberlain Papers were written by women, scholars attentive to the archival turn have had to think carefully about what it means to be granted access to papers that were never intended to be read by strangers in a NLA Reading Room. Recent scholarship in this field has been examined by Kennedy, in her work on the use of intimate letters as criminal evidence. She shows how newer, particularly feminist, critiques have begun to challenge the tendency to conflate the female with the private.[82] In the context of letter-writing and letter-reading, this work situates letters in the context of collaboration and circulation, suggesting that assumptions about privacy, secrecy and discretion are anachronistic or false. As Valentine told me, while there were a few letters in the Chamberlain Papers that say words to the effect of ‘this is between you and me and it’s completely private’, most of them do not. In the work of Liz Stanley and Margaretta Jolly, the letter itself pushes the boundaries of genre, and whereas its ‘truth status’ is ambiguous, it has value ‘for its personality, authenticity or intimacy’.[83] While they argue that the letter must be read in the context of the ‘specific relationship’, that is between its author and its addressee,[84] contemporary scholarship does not suggest that these are the only people who might access that letter.

The Chamberlain Papers are a literal archive of feelings.[85] Specifically, they prove the strength of their authors’ feelings about the law. For Howe, the letters to Lindy are

testimony to an extraordinary expression of emotion, ranging from rage against a palpable injustice, grief at her terrible loss and subsequent persecution, remorse at early misgivings [...], admiration and love and above all, shock, horror and incredulity that this could happen in Australia ...[86]

Not only are most of the writers supportive of Lindy, they are on her side ‘passionately’, ‘weeping for her’, ‘unable to sleep’, ‘crying for days’.[87] That the law arouses intense feelings is vaguely assumed but rarely documented; the letters sent to Lindy Chamberlain are proof of law’s emotional force. For Howe, they are evidence of ‘a nation in shock’.[88] Many are searching for practical ways to help Lindy: they sign petitions, they write to figures of authority; one offers his wife’s breast-milk for her baby Kahlia. They express their admiration and love, commend her on her courage and strength. They offer information about dingoes, they express opinions about the conduct of her trial, they offer money, they apologise. Howe describes the ‘shock’ of finding one of her own letters in the archive, in which she had, decades earlier, invited Lindy to a performance of the play she had written about the case. She asks Lindy’s opinion about her feminist interpretation of her persecution, and she describes her relief and amusement that Lindy had summarised her letter with the word ‘lady’.[89]

Another user of the letters to Lindy Chamberlain is the cultural scholar and poet, Deborah Staines. Staines’ project was to investigate the Chamberlain case as an instance of ‘cultural trauma’, drawing upon the letters written to Lindy as evidence of the existence and nature of the trauma. For Staines, ‘cultural trauma’ occurs when an event is collectively adopted by a society and understood as somehow catastrophic. Her project situates the Chamberlains’ convictions as a catastrophe or disaster, a legal event that generated a cultural trauma that the letters prove.[90] In Staines’ research, some of the letters reveal their author’s ‘contrition’ at having once thought Lindy guilty, and they write to her seeking ‘forgiveness’.[91] Some contain ‘crackpot theories’, or are ‘sick and obsessive’; many provide insights into the nature and depth of religious belief or intolerance, responding to Lindy’s status as a Seventh Day Adventist.[92] For Staines, the archive represents a ‘community of dissent’,[93] voices that largely resisted the narrative of Lindy’s guilt and, instead, testified to her grief and their own, and often apology and regret. The archive, in Staines’ work, is ‘an evidence trail, a discourse stream, and reading across its strata enables traumatic incoherence to divulge a telling narrative’.[94] That narrative is a legal one; it achieves its legal status through materiality and archival thinking. As Latour showed, the production and accumulation of paper invokes the law, and in the profusion of paper and with the benefit of hindsight, we see the importance of paper in forcing us to remember the Chamberlains’ slow journey from wrongful conviction to exoneration.

I spoke to Staines about her experiences and memories of working with the Chamberlain Papers, which she had done around 15 years prior to our conversation.[95] Within her cultural trauma study, Staines recalled her project investigating two key sites: objects and stories. In the former, the materiality of the letters was central. That the archive contained thousands of letters, cards and notes was, in itself, important. In the latter, she was looking for the stories that could be told from the letters collectively: Did these letters narrate a different or distinctive account of public sentiment about Lindy?

Part of the materiality of the Chamberlain Papers was, for Staines, found in the symbolism and scale of the architecture of the NLA. These signalled the significance and preciousness of the material, and the Library’s rules and protocols further demonstrated the collection’s importance. This physicality, Staines explained, seemed to initiate the researcher into ‘something’.[96] Inside the Library building, the researcher was inaugurated into a relationship with the nation. She told me, ‘After reading the letters, I understood I’d walked into the public sphere’; ‘what I call the counter-public’.[97] She was clear that she was not meeting these letter-writers as individuals, but as a collective; they represented the public.

Another layer of materiality was evident in the volume of letters and, particularly, cards. Staines recalls that there were many small gift cards with Christian psalms and short messages in the vein of ‘Dear Lindy, Thinking of you’. The sheer number of such cards was ‘innocuous’ and ‘repetitive’, and this was part of her experience of the archive. These cards were handwritten, sometimes handmade. Some had enclosed pictures or photographs. Staines tried to attend to details including their legibility, spelling, and the type of writing implement used by their author. These generated evidence of materiality, of physicality, and moved the researcher to reflect upon the effort, time and thought invested by the writer who had acted upon a decision to communicate with Lindy. Staines told me, ‘I can recall sitting in that room having to pause to process what that person feels for Lindy’.[98] The letters, in her memory, contained a lot of emotion. They were a direct personal address, many contained confessional details. They were located within a particular time and place in Australia, making them transparently historical but nevertheless full of the emotions of life.

The physicality of letters, not only in their abundance but in their materiality, invokes the sensation of touch. The researcher who touches these letters makes contact with their authors, and also with Lindy; thousands of individuals seeking to make contact with Lindy also inevitably make contact with the archival researcher. Materiality is implicated in proximity, so that touching the letters brings their readers closer to Lindy and to the letter-writers. Scholars in other archival collections have noticed the power of this sensation: ‘touch[ing] what she has touched’;[99] ‘touching the real’.[100] This awareness of physicality is further generated by the slow nature of archival research. The archive demands time, sometimes long and tedious stretches of time spent searching, sifting, blinking. As Farge noticed, ‘handling the documents’ demands ‘combing’, ‘slowness of hands’,[101] and at this pace, the researcher is forced to generate new connections between ideas, and to see features on the page that are not apparent to the digital scholar. As archives and libraries transition into the digital age, the opportunities to digitise paper records give rise to important questions about the value of material documents in the face of their ‘digital surrogates’.[102]

It was overwhelming at times, Staines told me, and she remembers constantly battling the sense of not being able to do justice to the archive. She reminded herself that she was not there for pleasure; this was a responsibility of scholarly work, the difficulty of which was an intrinsic part of her project. Her focus was on trauma, and so she was especially drawn to letters written by people who’d experienced the loss of a child, imprisonment, persecution and pain. Many of these writers articulated that their connection to Lindy was through their shared experience of pain; for the researcher, this immersion into intense pain was difficult to endure.

A further layer of materiality was evident to Staines through the letters, and that was ‘the imprint of Lindy Chamberlain-Creighton herself’.[103] Lindy’s presence asserted itself in various ways: ‘through the marginalia, her distinctive cataloguing, her occasional responses, and the closed files’.[104] It was an important reminder of the reality that the miscarriage of justice at the centre of this archive was experienced, accumulated and documented by its victim. Grounding Staines’ research was the absolute certainty that Chamberlain was innocent. Explaining that her project was founded upon ‘basic ethical courtesies’, Staines told me that ‘the most basic courtesy is that you are upfront about her innocence and don’t play around with that’.[105]

As well as being an academic scholar, Staines is a poet, and so she also talked to me about her ‘self-imposed standard’ as a creative writer.[106] She revealed that she had written a poem based on one of the letters, ‘an amazing letter that had a big effect on me’.[107] Through her poetry, she ‘edited’ the letter, ‘rewrote it’, in order to ‘abstract from it what I thought was the poetic essence of the letter’.[108] While the effort of making the poem conveyed considerable thought and judgment, Staines was clear: ‘I would not publish the poem’.[109]

In the view of the Chamberlain Papers’ archivist, Kylie Scroope, there is ‘nothing particularly different’ about the process by which the NLA acquired the Chamberlain Papers, and that a standard rights agreement was negotiated with Lindy as it would be with any other donor.[110] Like most traditional collections of correspondence, it records ‘one side’ of the conversation; these are letters received by Lindy. Also, like all unpublished material, these letters remain in copyright in perpetuity, and so the rights agreement needs to contain a mechanism for managing the copyright of multiple — in this case, thousands — of copyright holders represented within the collection. For Scroope, additional sensitivities arise from correspondence where ‘an exchange between two people’ is made at a time when there is no expectation that third parties will be reading their letters in the NLA in the future. Notwithstanding critical feminist scholarship that aims to dismantle the conflation of the feminine with the private, the NLA is cautious about personal epistolary collections, where letters might be written in an atmosphere of privacy, intimacy and limited disclosure. This poses both ethical and methodological challenges for scholars, as personal letters are often an important source for studies of women’s lives.[111] What is different about the Chamberlain Papers, when compared to other collections in the NLA, is that whereas most personal papers are obtained from people who achieved national significance through a long career in a particular field, Lindy Chamberlain acquired national significance for reasons entirely outside of her own control. Whether this gives rise to additional sensitivities, or demands empathy, is something that the NLA has kept in mind.

The Chamberlain Papers also provide evidence of Lindy’s personal relationship with her papers. Cunningham inferred that prior to Azaria’s death, Lindy was ‘only a marginally more retentive recordkeeper than the average person’, but that her experiences ‘transform[ed] her into an obsessive recordkeeper’.[112] The acquisition of the Chamberlain Papers coincided with concurrent shifts in archival appraisal theory, wherein an archivist assigns evidentiary, historical and/or cultural value to records.[113] Archival theory has, as the Chamberlain Papers illuminate, moved away from a power-based structure of records to a memory-based structure; from the State to the individual.[114] There does remain a State-controlled archive relating to the Chamberlain case, in a closed collection in the Northern Territory, and Lindy spoke to me about her inability to access information about its whereabouts or contents. This 19th-century notion of the archive, inaccessible and secretive, has been eclipsed by contemporary moves — the ‘archival turn’ — in which documentation itself motivates archival inquiry. Documents have become implicated in memory, poetics, affect and transgression, and these practices now dominate archival appraisal and acquisition. Archival practices once rooted in traditional understandings of history and historiography have since embraced poststructuralist challenges to historicity itself.[115] The power to designate social facts or epistemic truths no longer lies with the State. The Chamberlains’ miscarriage of justice makes this clear. And so it is proper that the official archive, hidden somewhere in Darwin, has been eclipsed in significance by Lindy’s own papers, which testify to, and represent the legacy of, the primary social fact evidenced by her experience: justice gone awry.

Lindy’s ongoing accumulation of papers relating to Azaria, a discipline she continues today, is motivated by her desire to remember and honour her daughter. However, Cunningham writes that her persistent collecting, and her decision to deposit her papers with public institutions, responds to her knowledge of the ‘symbolic significance’ of her case in the Australian collective memory.[116] ‘Significance’, and particularly ‘national significance’ is one of the acquisition criteria applied by Australian national collecting institutions. When Lindy first gave thought to the accumulation of these materials, she told me, ‘Well, initially I didn’t think there was any significance at all. I was thinking, well, with the papers and letters, this is all we have that remains of Azaria. Nine-and-a-half weeks is not a lot of life history’.[117] The letters received by Lindy Chamberlain acquire their significance from the fact that more than 40 000 Australians were sufficiently moved by the events surrounding Azaria’s death that they wrote to Lindy to express their feelings. Their authors are likely to be otherwise missing from the national archive; individually their letters do not meet the criteria of significance for acquisition and retention. However, in their commonality of purpose they constitute an archive, and they provide evidence that despite her short life, Azaria Chamberlain triggered one of the nation’s largest and most significant archives of paper, data and objects. Returning to the concept of materiality, it is the volume or scale of the Chamberlain Papers, independent of their contents, that is one measure of their significance. As the art curator Okwui Enwezor noticed, ‘archives represent scenes of unbearable historical weight’,[118] demanding that we see in the abundance of the Chamberlain Papers evidence of the enduring force exerted upon Australian legal history of this miscarriage of justice. It is difficult to imagine a more documented baby than Azaria, and the quantity of paper associated with her short life and violent death tells us something about her significance for the nation.

Scroope explains that the NLA prefers collections of personal papers to form a ‘lifetime archive’. Lindy describes this acquisition theory: ‘They’ve said, “we want a little bit of colour from you that is outside of the court case”’.[119] It means that the papers relating to someone’s public achievements are contextualised within the private papers relating to their personal life. This is primarily with a view to serving potential future biographical research projects. Scroope observes that ‘not all donors are comfortable with that’, and that deposited personal papers will not be accessible during the donor’s lifetime, and often for a prescribed period afterwards.[120]

Scroope is careful not to impute to Lindy any actions that she is not certain about. However, as a curator of manuscripts, she notices that Lindy manages her personal papers in a way that is distinctive. For most people, Scroope observes, personal papers are subject to what she describes as ‘natural accumulation’; a person’s lifetime archive might be found in ‘a shoe box or something under the bed’. Scroope invokes archival theory when explaining that ‘original order is a core principle of any archive management’.[121] The rationale for this is that researchers, she explains, ‘can glean as much information from the way things are arranged and how they link together, as from what the actual content of a single item is’.[122] And so, when a collection of personal papers is donated, ‘we would attempt to maintain it in the order that it’s in when it comes to us’.[123] Anticipating a handover of personal papers to a national collecting institution, ‘We encourage people not to reorganise too much if there is a natural order or arrangement that’s been established during accumulation’.[124]

For Lindy, however — and Scroope is careful to emphasise ‘I imagine in the situation she found herself’ she is

more attentive to keeping things, and not just keeping them, but also to putting that sort of marker on them that almost gives them extra evidentiary value. Not evidentiary in a legal sense, but it does clearly establish when and where they came from, in a way that not many other people would consciously do ...[125]

I have observed Lindy doing this. At a symposium held to commemorate the 25th anniversary of Azaria’s death, Lindy approached each of the presenters after they had spoken and asked them to give her the notes from which they’d read. She asked them to sign and date the first page before keeping the papers for her collection. The chair on which she sat had a ‘Reserved’ sign, and she collected that also. She told me that, during the making of the film Evil Angels, she asked the actors, including Sam Neill and Meryl Streep, to sign the first hardback copy of her memoir, Through My Eyes. When that book was stolen, she had them sign another copy, and this book is now in the NLA. The making of the mini-series Through My Eyes, coincided with the release of a new edition of her memoir and, she told me:

I’ve got [signatures of] all the actors and journos and all sorts of people like that in that one. I initially thought I’d keep it and then I thought, well, it’s sitting there, if anything happens to it it’s going to get ruined, I’m the only one that will treasure it. The kids have got their own copies and [so] that should go in [the NLA]. So that’s yet to come.[126]

In this manner, we see layers of materiality rise to the surface. Lindy’s memoirs are published in a volume; her personal copy of that book is then handed around a film set, touched, marked, signed and inscribed by the personnel of significance. For her, this adds new value to the object — she now regards it as a ‘treasure’. That value relates to the curatorial or research-value of the object, and no doubt its monetary value; more than anything, these material markers represent the fact that each of these people touched this object, giving it new vitality and significance.

IV Legal Transcripts in the Chamberlain Papers

Aside from the letters written to Lindy Chamberlain, the Chamberlain Papers also include legal documents, which occupy four large archive boxes.[127] They are accessible in the Special Collections Reading Room, once permission has been granted by Chamberlain-Creighton, as facilitated by the archivist responsible for the Manuscripts collection. Primarily, the legal papers in the Chamberlain Papers are not original documents; they are Lindy’s personal copies of indexes and transcripts of legal proceedings, and also include some transcripts given to her by Ken Crispin QC, who represented the Chamberlains before the Royal Commission, and other members of her legal team. They do not represent the most complete collection of transcripts — the NLA has better and more comprehensive copies of these in its other collections.[128] But because they are Lindy’s, and because they contain material traces of her possession of them, they fulfil the requirements of ‘significance’ for inclusion in a national collection.

As Kylie Scroope explains, personal collections of legal transcripts are not unique. The significance of Lindy’s own copies of these is a matter for judgment. She says ‘What tends to sway the decision one way or the other is if something’s been annotated, so it has extra information added; that would make us more likely to keep it’.[129] This conforms with Heather Jackson’s work on marginalia, in which archival documents are enriched by these markings. A literary scholar, Jackson concedes that we do not know who is being addressed by this textual marginalia, nor what motivated its makers; in her analysis ‘marginalia are written for the good of the work itself’.[130] Aside from these marks, Scroope explains that the legal proceedings in which Lindy Chamberlain was entangled

are so much at the heart of what made her a public figure to start with, which is the reason why we then go and collect her papers. Then it makes sense to keep them. They’re a really intrinsic part of her story, and therefore it would be silly to collect her papers and not keep [the transcripts.][131]

While these transcripts of legal proceedings are a part of Lindy’s story, they also tell a story of their own, a custodial journey from the stenographer to the archival researcher, touched by countless hands in between.

Notwithstanding that these are Lindy’s copies of legal transcripts, transcripts themselves give rise to unresolved challenges about ownership, particularly in the face of commercialisation and corporatisation.[132] Many Australian jurisdictions now outsource transcription services to commercial agencies, and these agencies claim copyright in the transcripts they produce. For Scroope, collections of papers originating from lawyers often include transcripts as well as other case materials, and this gives rise to ‘fairly broad ethical questions about whether they’re really the owners of that material’.[133] The transcription might become a ‘work’, but so too might be the intervention of the annotator, the highlighter, the copier and the marginal note-maker. As Scroope explains, the NLA’s decision-making here relates to the research-value of the material, rather than proprietorial decision-making, but that the rights agreements for such collections can be ‘convoluted’ and demand that the donor ‘has had to give a lot of thought to the interests of other people who are represented in the material’.[134] In Lindy Chamberlain’s legal transcripts, we cannot know the names or number of those people represented in this material, but we sense their presence in the material traces they have left upon these pages.

Materiality becomes a vital concept in encountering the legal materials within the Chamberlain Papers. Mostly these are spiral-bound volumes from coronial, criminal and appellate hearings. Some of these seem fragile; some have been treated, not very successfully, for water damage. Some pages have turned brown, some are spotted with mould, some are torn. There are redactions and handwritten notations in more than one hand.[135] Some volumes are photocopied onto pink paper. Also spiral-bound, on the spine of one of them is what appears to be written in a children’s silver marker reading ‘AZARIA TRIAL VOL 1’.[136] There are parts that are highlighted and some Post-It notes stuck in places where their significance is not apparent. Some pages have been copied askew and sit at an oblique angle from the others. The materiality of these documents suggests that many different hands have touched, used, notated, marked, organised and labelled these pages, as well as those that have bound and boxed them.

The physicality of the page is important for scholars attentive to the materiality of archival papers. In the work of Bonnie Mak, the page is a crucial site for analysis, linking materiality with meaning. For Mak, the page is ‘a technological device’, a ‘communicative space’, it discloses ‘strategies’ and embodies the ideas it transmits.[137] One box contains very large bound volumes transcribing the testimony of the forensic experts that was highly significant in obtaining the wrongful conviction.[138] There is a lot of highlighting and underlining in these areas, for example where testimony is taken relating to the damage to Azaria’s jumpsuit, and in the evidence purporting to support the finding that foetal blood was found in the car, all of which was ultimately discredited by the Royal Commission. Here, the transcript appears to have been heavily highlighted and underlined before being photocopied and bound. Then, it has been annotated in pencil. Again there is notation, underlining, highlighting and circling. Some of the pages have been inadvertently folded; somebody has corrected the transcription, for example ‘cored blood’ is corrected to read ‘cord blood’. Here we come to understand Mak’s argument about the inseparability of meaning and materiality. These papers record ideas about ideas. Some of these ideas are evident just by looking at the page; for instance, somebody with scientific knowledge has made various annotations throughout, such as an exclamatory marginal note that reads ‘Na+ Cl- !’ Other ideas are more opaque, for example where someone has drawn question marks in uneven patterns in the margins, or where a Post-It note requests multiple copies —

‘10 copies’; ‘5 copies’ — but it is not clear what to copy, or to whom it ought to be distributed. Lindy explained to me that most of the notes and copies were associated with the examination and cross-examination of witnesses. On one volume, the spiral binding has come apart and a complex arrangement of bulldog clips attempts to hold it together.[139] One idea is captured in this arrangement; another in its preservation. Collectively, these archived papers bring together one unifying idea: here is a miscarriage of justice. This is the idea that has brought these pages together, and caused them to be preserved, managed and periodically visited by researchers. For legal scholars and practitioners, these papers send a powerful cautionary message: this happened; do not forget.

V Staging Letters to Lindy

Alana Valentine writes plays from existing transcripts or the testimony of her informants. She was granted access by Lindy Chamberlain-Creighton to the letters in order to develop a work of theatre, which resulted in the stage play Letters to Lindy. The play premiered in Wollongong in July 2016 and has since toured several Australian cities. The play is moving, at times emotionally wrenching, and often very funny. It puts the voices of many letter writers into a kind of dialogue with each other and with Lindy, and also draws on the voices of lawyers, judicial officers and scientists. We also see Lindy mourning Azaria by caressing and folding replicas of the tiny blood-stained and torn garments that were found after Azaria was taken — the jumpsuit, singlet, nappy and booties, and years later the matinee jacket — and which are now held in the collections of the National Museum of Australia.[140] Through Lindy’s voice we appreciate the absurdity of the proposition that she murdered her baby without motive and with nail scissors in the family car during a short absence from a barbecue. When the Lindy character re-tells dingo jokes that circulated in popular culture during her legal ordeals, we hear with a new intensity their cruelty. The play presents us with the voices of the vitriolic and awful letter writers but also the spectrum of sweet, charming, kind, absurd, apologetic and well-meaning letters; letters from supporters, friends, strangers, children.

Valentine spoke to me at a time when she was still researching and writing the play, at which time she said, ‘My role is not to proselytise for Lindy, or protect Lindy’.[141] She explained that verbatim theatre, at least in her own writing practice, is ‘part of the swing of more authentically-based art in the 21st century; I think it’s part of a bigger philosophical debate about why we’re so attracted to the documentary style and authentic stuff’.[142] While a large part of what Valentine described about her work related to her commitment to giving voice to individuals and communities who might otherwise not appear on the stage, she was attentive to the materiality of researching in the Chamberlain Papers.

Initially, it was the architecture of the Library, and the scale and scope of its collections, that framed her project. In her words, ‘The National Library is itself overwhelming as a place. It’s kind of like walking into infinity’.[143] In our discussion about the challenges of working with national collecting agencies, and economic and political drivers of digitisation initiatives, she reflected, ‘Sometimes people feel like you put something in a cultural institution and that’s a way to make it disappear’.[144] This accords with more traditional views of the archive, where bureaucracy, inaccessibility and overabundance create the belief that everything is there, but nothing can be found. For Valentine, the material encounter with a physical thing is important to her creative practice. She said, ‘I really love to get my hands on the actual thing’; ‘I like to put my hands on these actual letters from the public with stains and all sorts of things that are on them’.[145] These are, for Valentine, the ‘primary source’, and they need to be experienced tangibly. The letters written to Lindy Chamberlain are, for Valentine, a ‘time capsule of Australia in the 1980s’.[146]

She was also attentive to the marginalia and the technologies of the page, remarking, ‘in the papers there’s bits and pieces from various trials, like notes from Lindy [and] people’s commentary’.[147] For Valentine, one way of managing the volume of the letters was to create categories, of which she identified 20. Among the largest categories, by volume, were what she named ‘Apologisers’ and ‘fellow persons of faith’.[148] Also significant were the numbers of letters from ‘prisoners and ex-prisoners’ and letters relating to the internal machinations of the occasionally-rivalrous support groups.[149] Interestingly, one of the smallest categories, which she estimates at less than 5% of the total, are ‘nasty, poisonous, anonymous’ letters. Some of these are pornographic, all of them are vitriolic in some way, and the play Letters to Lindy provides a dramatic representation of part of that material.[150] As Valentine reasoned, ‘They’re the most evil bastards in the world. So when they’re bad, they’re very, very bad’.[151] She also notes that many of these are long, handwritten letters, representing a genre of communication that is largely lost in modern correspondence.

Also in her account of the process of using the Chamberlain Papers to make theatrical work, Valentine explained the careful process she undertook in seeking to locate the copyright holders of the letters, by which she meant their authors. After first clearing her selection of letters with Lindy Chamberlain-Creighton, Valentine then attempted to contact the letter writers, many of whom had signed and addressed their letters. Unpublished works remain the copyright of their authors in perpetuity, and Valentine went to considerable effort to demonstrate that she had made every effort to contact them in order to obtain their approval to use their words in her play. Seeking legal advice, she kept ‘return to sender’ envelopes, and she also used the electoral rolls that are held in the NLA, in order to find current addresses of letter writers who had moved. The need for the user — in this case, the playwright — to take responsibility for the intellectual property issues arising from their research is a part of the NLA’s negotiated agreement with the donor. For the NLA’s Kylie Scroope, this issue poses ‘one of the biggest complexities in managing collections of manuscript material or unpublished material’.[152] The Chamberlain Papers are comprised of thousands of copyright owners, representing just one of many sensitivities arising from the nature of this collection. As a collection that is unified by the theme of law’s mistakes, it is striking that it is now managed with very careful attention to how the law might be engaged by its survival.

VI Law’s Archival Turn

Primarily, the emerging legal scholarship into the materiality of legal records examines the records created by and for the State. The techniques and tools deployed in State recordkeeping can be powerful evidence of the nature of bureaucracy, administration, and institutions of the State. The records themselves, independent of their contents, generate important knowledge. Citing Thomas Osborne, Riles explains that recordkeeping establishes ‘the ethical competence to rule’;[153] and that ‘practices of documentation’ are implicated in the constitution of modern States and their institutions.[154] Meanwhile Harold Garfinkel shows that ‘bad records’ — those which are incomplete, disordered or lost — are a uniform feature of some institutions.[155] For Vismann, ‘the administration of the Western world’ would be ‘unthinkable’ without files, and so the nature of that recordkeeping is a fertile field for exploration.[156] Marilyn Strathern demonstrates our tendency to assume that documents suddenly simply ‘appear’ and that they contain ‘information’ to be ‘read’.[157] Instead, of course, they ‘belong to a world of [their] own’ and can be understood as exercises in ‘self-description’; as documenting their own lives and journeys through an institution.[158] This is what Don Brenneis described as the ‘career’ of a document, marked by the events of its commencement and completion.[159] The document contains material evidence of its having been read, cited, touched or shared; its meetings with others, or its separation from a group, all of these events are imprinted upon its surface. The achievements of a document during its career motivate certain scholarly inquiries; the redeployment or retirement of the document might motivate others.

In this article, I have attempted to take a further step, finding evidence of law in documents created outside of legal institutions, but which nevertheless address themselves to legal matters. At the centre of the Chamberlain Papers is their central subject, Lindy Chamberlain-Creighton, whose experiences of law prompted the accumulation of papers that would later become one of the NLA’s most celebrated acquisitions. That the overwhelming volume of this collection was not made by legal officers is a crucial feature of this archive, and demands new ways of examining this collection and its significance. In many respects, the collection was given legal significance by Lindy herself, who transformed a disordered hoard of paper into an archive. Through its ordering, filing and annotation, and perhaps also in donating it to a national collecting agency, Chamberlain-Creighton produced a record of law’s work and law’s failures that had hitherto not existed. She made her personal experiences of trauma, loss and miscarriage of justice materially examinable for scholars and creative practitioners. By attending to the moves advanced by the archival turn, Stoler noticed that ‘we are no longer studying things, but the making of them’.[160] That the Chamberlain Papers were made by thousands of ordinary people and then re-made by Lindy Chamberlain-Creighton tells us something important. In their abundance and in their distinctive arrangement, and through the thoughtful manner in which they were acquired for the nation, we learn about the value of tenacity in the face of injustice, and the deep compassion that was felt for one of law’s victims.

[∗] Professor of Law, Faculty of Law, University of Technology Sydney, Australia. I thank Lindy Chamberlain-Creighton, Rick Creighton, Kylie Scroope, Deborah Staines and Alana Valentine for their participation in this research. This research was supported by the Australian Research Council Discovery Projects scheme grant DP130102224.

[1] Michel Foucault, The Archaeology of Knowledge (A M Sheridan Smith trans, Routledge, 2002) 8 (emphasis in original) [trans of: L’Archéologie du Savoir (first published 1969, trans 1972)].

[2] Lindy Chamberlain-Creighton was interviewed by the author as part of a research project approved by the University of Technology Sydney Human Research Ethics Committee. This article also cites other interviewees whose participation was approved in that process: Kylie Scroope, Deborah Staines and Alana Valentine.

[3] Royal Commission of Inquiry into the Chamberlain Convictions pursuant to the Commission of Inquiry (Chamberlain Convictions) Act 1986 (NT).

[4] See also Katherine Biber, ‘Evidence in the Museum: Curating a Miscarriage of Justice’ (2017) Theoretical Criminology, forthcoming, DOI: 10.1177/1362480617707950.

[5] See below n 47.

[6] Jane Bennett, Vibrant Matter: A Political Ecology of Things (Duke University Press, 2010). See also: Alfredo Cramerotti, Aesthetic Journalism: How to Inform without Informing (The University of Chicago Press, 2009); Jane Connarty and Josephine Lanyon (eds), Ghosting: The Role of the Archive within Contemporary Artists’ Film and Video (Picture This Moving Image, 2006); John Douglas Millar, ‘Watching v Looking’ (2010) 340 Art Monthly, October, 7–10.

[7] Katherine Biber, ‘In Crime’s Archive: The Cultural Afterlife of Evidence’ (2013) 53(6) British Journal of Criminology 1033.

[8] Institute of Advanced Legal Studies, Legal Records at Risk (LRAR) Project (22 November 2016) <>

[9] Sven Spieker, The Big Archive: Art from Bureaucracy (MIT Press, 2008) 1, 5.

[10] Jacques Derrida, Archive Fever: A Freudian Impression (Eric Prenowitz trans, The University of Chicago Press, 1996) 4, footnote 1 [trans of: Mal d’Archive: Une Impression Freudienne (first published 1995, trans 1995)].

[11] Antoinette Burton, ‘Introduction: Archive Fever, Archive Stories’ in Antoinette Burton (ed), Archive Stories: Facts, Fictions and the Writing of History (Duke University Press, 2005) 1, 11.

[12] Sven Spieker, ‘Un-Knowing, Getting Lost, Linking Points in Space: The New Archival Practice’ (Paper presented at Artists & Archives: A Pacific Standard Time Symposium, Getty Research Institute,

Los Angeles, California, 12 November 2011) Part One 1:02:00–1:05:12 <


[13] Derrida, above n 10, 36.

[14] Christopher Tomlins, ‘After Critical Legal History: Scope, Scale, Structure’ (2012) 8 Annual Review of Law and Social Science 31, 33.

[15] Foucault, above n 1, 7.

[16] Georges Didi-Huberman, ‘The Surviving Image: Aby Warburg and Tylorian Anthropology’ (2002) 25(1) Oxford Art Journal 59; Georges Didi-Huberman, Confronting Images: Questioning the Ends of a Certain History of Art (John Goodman trans, Pennsylvania State University Press, 2005)

[trans of: Devant L’Image: Question Posée aux Fin d’une Histoire De L’Art (trans 2005)].

[17] Foucault, above n 1, 8 (emphasis in original).

[18] Christopher Tomlins, ‘The Confessions of Nat Turner: A Paratextual Analysis’ (2014) 1 Law & History 1, 7. ‘Paratext’ is a concept that Tomlins takes from the work of structuralist literary theorist Gérard Genette, who used the terms ‘paratext’ (in which he includes ‘peritext’ and ‘epitext’) and ‘hypotext’ to draw attention to the architecture of documents and their contents. In Tomlins’ account of Genette, he writes (at 7):

Peritext refers to those paratextual elements that position text and reader in relation to each other: title, preface, authorial identification, dedication, chapter titles, epigraphs, design, typography and so forth – all of these are textual manipulations that function to point the text in a particular direction. Epitext refers to those paratextual elements that surround and inform the production and reception of the text – that is, its circumstances: print run, modes of dissemination, advertisements, reviews, authorial interviews, commentaries upon the text, critical disquisitions, and so on. Genette also employs the term hypotext to denote the sources of the text, the text before the text.

[19] Olivier Guyotjeannin, ‘The Expansion of Diplomatics as a Discipline’ (1996) 59(4) American Archivist 414.

[20] Ibid. See also Elizabeth Yakel, ‘The Way Things Work: Procedures, Processes, and Institutional Records’, 59(4) American Archivist 454.

[21] Timothy Garton Ash, The File: A Personal History (Vintage Books, 1997).

[22] Carolyn Steedman, Dust: The Archive and Cultural History (Rutgers University Press, 2002).

[23] Okwui Enwezor, Archive Fever: Uses of the Document in Contemporary Art (International Center of Photography/Steidl, 2008); Matthew S Hull, Government of Paper: The Materiality of Bureaucracy in Urban Pakistan (University of California Press, 2012); Akhil Gupta, Red Tape: Bureaucracy, Structural Violence and Poverty in India (Duke University Press, 2012); Arlette Farge, The Allure of the Archives (Yale University Press, 2013); Kirsten Weld, Paper Cadavers: The Archives of Dictatorship in Guatemala (Duke University Press, 2014); Lisa Gitelman, Paper Knowledge: Toward a Media History of Documents (Duke University Press, 2014).

[24] Yad Vashem, Pages of Testimony (2017) ‘It Came From Within ...’, Exhibition Marking the Events of Kristallnacht <> .

[25] Tierney Bonini, ‘New Play Explores Letters to Lindy Chamberlain’, ABC News/Lateline (online) 29 August 2016 <> .

[26] Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common

Sense (Princeton University Press, 2009) 21.

[27] Ann Laura Stoler, ‘Colonial Archives and the Arts of Governance’ (2002) 2(1) Archival Science 87, 87.

[28] Ibid 88.

[29] Annelise Riles (ed), Documents: Artifacts of Modern Knowledge (University of Michigan Press, 2006).

[30] Annelise Riles, ‘Introduction: In Response’ in Annelise Riles (ed), Documents: Artifacts of Modern Knowledge (University of Michigan Press, 2006) 1, 10.

[31] Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat (Marina Brilman and Alain Pottage trans, Polity, 2010) 70 [trans of: La Fabrique du Droit (first published 2002, trans 2010)].

[32] Ibid.

[33] Alain Pottage, ‘The Materiality of What?’ (2012) 39(1) Journal of Law and Society 167, 168.

[34] Ibid 168.

[35] Ibid 178.

[36] Ibid 179–80. Pottage promotes systems theory and actor-network theory as better alternatives.

[37] Ibid 180.

[38] Cornelia Vismann, Files: Law and Media Technology (trans Geoffrey Winthrop-Young, Stanford University Press, 2008) [trans of: Akten: Medientechnik und Recht (first published 2000)].

[39] Ibid 11.

[40] Don Brenneis, ‘Reforming Promise’ in Annelise Riles (ed), Documents: Artifacts of Modern Knowledge (University of Michigan Press, 2006) 41, 42–3.

[41] Vismann, above n 38, 11.

[42] Christopher Tomlins, ‘Historicism and Materiality in Legal Theory’ in Maksymilian Del Mar and Michael Lobban (eds) Law in Theory and History: New Essays on a Neglected

Dialogue (Hart, 2016) 57, 69.

[43] Bonnie Mak, How the Page Matters (University of Toronto Press, 2011) 18.

[44] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, MS Acc09.079,

MS Acc10.091.

[45] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 12: Trial transcripts and related material, 1981–84.

[46] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 14: Through My Eyes; Series 15: Tapes and tape transcripts of Through My Eyes; Series 16: Computer disks relating to Through My Eyes.

[47] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 13: Chamberlain Information Service, 1982–90. But see also Papers of Chamberlain Support Groups, 1982–86 [manuscript] MS 7400; Papers of Guy and Phyllis Boyd, 1890–2001 MS 7551; Records of the National Freedom Council, 1980–2000 MS 7845; Papers relating to the Chamberlain case,

1980–90 [manuscript] [papers of Norman H. Young] MS 8292; Papers of Betty Hocking, 1982–86 [manuscript] MS Acc10.210.

[48] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS Acc09.079.

[49] Azaria Chamberlain birth details, 1980 [manuscript]; Azaria Chamberlain hospital identity bracelet, 1980 [manuscript] both from Papers of Lindy Chamberlain, 1944–2010 within manuscript reference no.: MS 9180, Series 1, Box 62, Azaria birth memorabilia folder.

[50] Lindy Chamberlain Strike Statement from Darwin Prison, 1986 from Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 1, Box 66, Darwin Prison folder. The statement had been smuggled out of prison for a planned media release by Australian Senator Bob Collins, however the strike plan was abandoned when Azaria’s matinee jacket was found.

[51] See Institute of Advanced Legal Studies, above n 8. See also Vismann, above n 38; Latour, above n 31.

[52] NLA, Manuscript Collection Rights Agreement (provided by Kylie Scroope, NLA Curator of Manuscripts).

[53] Adrian Howe, ‘Writing to Lindy — “May I Call You Lindy?”’ in Deborah Staines, Michelle Arrow and Katherine Biber (eds), The Chamberlain Case: Nation, Law, Memory (Australian Scholarly Publishing, 2009) 221, 223.

[54] Ibid.

[55] Interview with Lindy Chamberlain-Creighton (by telephone, 2 May 2016).

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Graeme Powell, ‘The Chamberlain Papers’ (Paper presented at Nation, Law, Memory: A Chamberlain Case Symposium, Macquarie University, Sydney, 2005) reproduced at: <> .

[60] Interview with Lindy Chamberlain-Creighton (by telephone, 2 May 2016).

[61] Ibid.

[62] Interview with Alana Valentine (Sydney, 30 June 2014).

[63] Cited in Adrian Cunningham, ‘Icons, Symbolism and Recordkeeping: The Lindy Chamberlain and Eddie Mabo Papers in the NLA’ in Deborah Staines, Michelle Arrow and Katherine Biber (eds), The Chamberlain Case: Nation, Law, Memory (Australian Scholarly Publishing, 2009) 260, 264.

[64] Ibid 264.

[65] Powell, above n 59.

[66] Howe, above n 53, 223.

[67] Interview with Alana Valentine (Sydney, 30 June 2014).

[68] Ibid.

[69] Interview with Kylie Scroope (Canberra, 10 July 2014).

[70] Ibid.

[71] Interview with Alana Valentine (Sydney, 30 June 2014).

[72] Interview with Kylie Scroope (Canberra, 10 July 2014).

[73] Interview with Alana Valentine (Sydney, 30 June 2014).

[74] Interview with Lindy Chamberlain-Creighton (by telephone, 2 May 2016).

[75] John Thompson, ‘Making History: Acquiring the Mabo Papers’, (1995) 6(1) National Library of Australia News 17, 21.

[76] Cunningham, above n 63, 263.

[77] Howe, above n 53, 221.

[78] Ibid 224.

[79] Ibid 224–5.

[80] Maryanne Dever, Sally Newman and Ann Vickery, ‘Introduction’ in Maryanne Dever, Sally Newman and Ann Vickery, The Intimate Archive: Journeys through Private Papers (NLA, 2009) 1, 24.

[81] Rosanne Kennedy, ‘Affecting Evidence: Edith Thompson’s Epistolary Archive’ (2014) 40(1) Australian Feminist Law Journal 15, 22.

[82] Ibid 22–4.

[83] Ibid 23 quoting Margaretta Jolly and Liz Stanley ‘Letters As/Not a Genre’ (2005) 2(2) Life Writing 91, 92.

[84] Kennedy, above n 81, 24.

[85] Katherine Biber and Trish Luker, ‘Evidence and the Archive: Ethics, Aesthetics and Emotion’, 40(1) Australian Feminist Law Journal 1, 4. See also Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures (Duke University Press, 2003).

[86] Howe, above n 53, 222.

[87] Ibid.

[88] Ibid.

[89] Ibid 229.

[90] Deborah Staines, ‘Textual Traumata: Letters to Lindy Chamberlain’ (2008) 5(1) Life Writing 97.

[91] Cunningham, above n 63, 263.

[92] Ibid.

[93] Staines, above n 90, 105.

[94] Ibid 101.

[95] Interview with Deborah Staines (by telephone, 3 December 2014).

[96] Ibid.

[97] Ibid.

[98] Ibid.

[99] Kathleen B Jones, Diving for Pearls: A Thinking Journey with Hannah Arendt (Thinking Women Books, 2013) 172.

[100] Farge, above n 23, 11.

[101] Ibid 55.

[102] See, eg, Marlene Manoff, ‘The Materiality of Digital Collections: Theoretical and Historical Perspectives’ (2006) 6(3) Portal: Libraries and the Academy 311; Jerome McGann, ‘The Future is Digital’ (2008) 13(1) Journal of Victorian Culture 80; Jon Rimmer et al, ‘An Examination of the Physical and the Digital Qualities of Humanities Research’ (2008) 44(3) Information Processing and Management 1374; Alexandra Chassanoff, ‘Historians and the Use of Primary Source Materials in the Digital Age’ (2013) 76 (2) American Archivist 458.

[103] Staines, above n 90, 101.

[104] Ibid

[105] Interview with Deborah Staines (by telephone, 3 December 2014).

[106] Ibid.

[107] Ibid.

[108] Ibid.

[109] Ibid.

[110] Interview with Kylie Scroope (Canberra, 10 July 2014).

[111] See Rebecca Earle (ed) Epistolary Selves: Letters and Letter-Writers, 1600–1945 (Ashgate, 1999); Amanda Gilroy and W M Verhoeven (eds) Epistolary Histories: Letters, Fiction, Culture (University Press of Virginia, 2000); Margaretta Jolly and Liz Stanley, ‘Letters As/Not a Genre’ (2005) 2(2) Life Writing 91.

[112] Cunningham, above n 63, 264.

[113] John Ridener, From Polders to Postmodernism: A Concise History of Archival Theory (Litwin Books, 2009) 112.

[114] Ibid. See also Katherine Biber, ‘Evidence from the Archive: Implementing the Court Information Act in NSW’ [2011] SydLawRw 25; (2011) 33(3) Sydney Law Review 575.

[115] Ridener’s study identifies Fredric Jameson, Jean-François Lyotard and Hayden White as the scholars who were instrumental in this move: above n 113, 101–41. Biber and Luker identify some of the key feminist, postcolonialism, queer and race theorists who also challenged historical traditions: above n 85, 11–14.

[116] Cunningham, above n 63, 265.

[117] Interview with Lindy Chamberlain-Creighton (by telephone, 2 May 2016).

[118] Enwezor, above n 23, 33.

[119] Interview with Kylie Scroope (Canberra, 10 July 2014).

[120] Ibid.

[121] Ibid.

[122] Ibid.

[123] Ibid.

[124] Ibid.

[125] Ibid.

[126] Interview with Lindy Chamberlain-Creighton (by telephone, 2 May 2016).

[127] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 12: Trial transcripts and related material, 1981–84.

[128] See, eg, NLA, Papers relating to the Chamberlain Case, 1980–90 [manuscript] [papers of Norman H Young] MS 8292.

[129] Interview with Kylie Scroope (Canberra, 10 July 2014).

[130] H J Jackson, Marginalia: Readers Writing in Books (Yale University Press, 2001) 86.

[131] Interview with Kylie Scroope (Canberra, 10 July 2014).

[132] Katherine Biber, ‘Inside Jill Meagher’s Handbag: Looking at Open Justice’ (2014) 39(2) Alternative Law Journal 73.

[133] Ibid.

[134] Ibid.

[135] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 12: Trial transcripts and related material, 1981–84. Box 143 Indexes for the first and second inquests, the trial, the judgments on appeals to the Federal Court of Australia and the High Court of Australia; transcript of proceedings at the second inquest (1981).

[136] Ibid Box 144 Transcripts of the Trial in the Supreme Court of the Northern Territory (1982) vols 1, 3.

[137] Mak, above n 43. 18, 7, 4, 5. See also Katherine Biber, ‘In Jimmy Governor’s Archive’ (2014) 42(3) Archives & Manuscripts 270.

[138] NLA, Papers of Lindy Chamberlain, 1944–2010 [manuscript] MS 9180, Series 12: Trial transcripts and related material, 1981–84, Box 145 Transcripts of the Trial, vols 4–5.

[139] Ibid Box 146 Transcripts of the Trial, vols 6–7.

[140] See Biber, above n 4.

[141] Interview with Alana Valentine (Sydney, 30 June 2014).

[142] Ibid.

[143] Ibid.

[144] Ibid.

[145] Ibid.

[146] Valentine said this at the NLA during her Harold White Fellowship Lecture, Alana Valentine, Letters to Lindy <> .

[147] Ibid.

[148] Ibid.

[149] Other categories identified by Valentine in her lecture include: poets; funny letters; nuts; close and casual friends of Lindy’s; immediate family; journalists; Aboriginal people; octogenarians; children; givers (of money, gifts, craft); New Zealanders; international writers; visual artists; dingo story tellers.

[150] Ibid.

[151] Interview with Alana Valentine (Sydney, 30 June 2014).

[152] Interview with Kylie Scroope (Canberra, 10 July 2014).

[153] Cited in Riles, above n 30, 5.

[154] Ibid.

[155] Cited in Adam Reed, ‘Documents Unfolding’ in Annelise Riles (ed), Documents: Artifacts of Modern Knowledge (University of Michigan Press, 2006) 158, 164.

[156] Vismann, above n 38, xii.

[157] Marilyn Strathern, ‘Bullet-Proofing: A Tale from the United Kingdom’ in Annelise Riles (ed), Documents: Artifacts of Modern Knowledge (University of Michigan Press, 2006) 181, 188, 195.

[158] Ibid 195, 191.

[159] Brenneis, above n 40, 56, 65.

[160] Stoler, above n 27, 89.

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