van Rijswijk, H --- "Towards a New Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law's Imaginary of Violence" [2015] UTSLRS 33; (2015) 27(2) Canadian Journal of Women and the Law 311

Last Updated: 2 June 2017

“Towards a Literary Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law’s Imaginary of Violence”

Dr Honni van Rijswijk
Senior Lecturer
UTS: Law, Sydney

Abstract:

The figure of the “abused Aboriginal child” haunts the Australian legal imaginary in ways that are both poignant and dangerous. This article examines the role this figure has played in assertions of Australian law’s violent jurisdictions, in the past and in the present. I examine the narratives that support law’s claims to authority and jurisdiction over Aboriginal communities, arguing that practices of representation—narrative, figuration, and what we might more widely think of as “law’s imaginary”—need to be interrogated and challenged, as an important means of intervening in law’s violent jurisdictions. We need to engage in what I term here a “literary jurisprudence,” in order to intervene in law’s claims to authority and jurisdiction that are based on narratives of purported harm to the Aboriginal child. “Haunting” is used to think through the significance of the legal imagination in two ways: the ways in which narratives in legal and state archives affect culture and politics; and also the role of law’s own imaginary and the ways in which its figures and narratives affect judicial outcomes, perhaps in ways that function beyond logic. To say that law is haunted by the figure of the abused Aboriginal child is to point to the affective, political, legal, and imaginative afterlife of narratives and figurations that are part of law, and which are not ended with each case or legislative regime but which, unresolved, are always living on.

By way of an example of these practices, I provide a reading of harm in the novels of Alexis Wright, a leading Australian novelist, which I argue together provide an exemplary text that counters state law’s representational practices and claims. What is needed to resist the use of the child figure as the occasion for further violence, I argue, and what this reading provides, can be described as a “counter-imaginary” to law’s. This counter-imaginary re-writes law’s narratives and figures, connects that which law has separated, and makes visible that which law has occluded. In particular, each of Wright’s three novels Plains of Promise (1997), Carpentaria (2006), and The Swan Book (2013) is concerned with the relation of harm to questions of Aboriginal authority. Together, all three of Wright’s novels provide a developed counter-imaginary to law’s continuing assertions of authority over Aboriginal people based on the figure of the “abused Aboriginal child,” from the early twentieth century to the present.

Author bio:

Dr Honni van Rijswijk researches at the intersections of law, literature and legal theory, and has written on subjects ranging from the feminist aesthetics of harm, narratives of consent in Stolen Generations cases, and the significance of Virginia Woolf to tort law. She is currently working on a book called The Figure of the Child in Law’s Imaginary, which examines the significance of the child figure in constituting the authority and legitimacy of the law, in legal formulations of responsibility for past and present harms, and to the contemporary rule of law.

“Towards a New Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law’s Imaginary of Violence”^[1]

Over time ... the waterbird’s children’s children’s child went mad, because she lost her daughter in a terrible place.

--Alexis Wright, Plains of Promise

“[L]ike any other long-standing conflict around the world, one act of violation becomes a story of another”

--Alexis Wright, The Swan Book (2013)

The figure of the “abused Aboriginal child” haunts the Australian legal imaginary in ways that are both poignant and dangerous to actual Aboriginal children and their communities. This article examines the role this figure has played in assertions of Australian law’s violent jurisdictions, in the past and in the present, to argue that law’s aesthetics have played an important role in constituting law’s authority over Aboriginal people. This article explains the role of narratives of abuse in distinct but related legal archives: historical and contemporary legislative regimes that have this figure at their centre, and which are the occasion for the regulation of Aboriginal populations; and court decisions that have adjudicated past acts of the state based on those regimes. This legal violence is ongoing. I examine these narratives as narratives that support law’s claims to authority and jurisdiction over Aboriginal communities, arguing that practices of representation—narrative, figuration, and what we might more widely think of as “law’s imaginary”—need to be interrogated and challenged, as an important means of intervening in law’s claims to authority over Aboriginal people. We need to engage in what I term here a “literary jurisprudence,” in order to intervene in law’s claims to authority and jurisdiction that are based on narratives of purported harm to the Aboriginal child. This literary jurisprudence involves examining and critiquing the practices of representation that support law’s claims; further, literary jurisprudence involves taking up exemplary practices of representation and counter-narratives that provide alternative ways of encountering harm to law’s, (in this article, I consider the novels of Alexis Wright), so that we can resist and re-situate law’s continuing claims to authority over Aboriginal people.
This essay considers a range of harms that law has sought, and continues to seek, to adjudicate in relation to Aboriginal communities—from allegations of neglect of Aboriginal children in the twentieth century, to more specific allegations of sexual abuse more recently. “Harm” here therefore does not refer to a specific legal category, but rather to a habit of law in regulating Aboriginal communities through legislation and case law, where harm is the occasion for control, rather than remedy. Of course, harm is central to the legal imagination: from Aristotle’s economic calculus in his Nicomachean Ethics, to contemporary processes of transitional justice, there are social and political expectations that juridical structures will be called into being in response to suffering. Law’s responses are animated by metaphor and narrative, from the conceit of the scales of justice, to neo-religious promises of reconciliation and redemption. Such imaginaries produce particular legalities, defining whose suffering counts, and how that suffering comes to matter. This interrelation of law, state and injury has been particularly strong since the beginning of the twentieth century, which has been defined as “the century of trauma.”^[2] But there is something distinctive about law’s role of adjudicating harm in the context of colonialism.

By claiming that the figure of the Aboriginal child “haunts” the Australian legal imaginary I refer to Avery Gordon’s work, as a means to indicate new, interdisciplinary ways of knowing—knowing that goes beyond categories of race and gender, and that takes account of the role of the past in the present, as well as the relation between representation and materiality.^[3] “Haunting” marks the resistant power of the figure of the child in case law, legislation and more widely in the public domain, a presence that is not easily available to analysis: “haunting is one way in which abusive systems of power make themselves known and their impacts felt in everyday life, especially when they are supposedly over and done with.”^[4] Haunting is used here to think about the significance of the legal imagination in two ways: the ways in which narratives in legal and state archives affect culture and politics; and also the role of law’s own imaginary—the ways in which its figures and narratives affect judicial outcomes, perhaps in ways that function beyond logic. Brian Massumi explains haunting as an “affective intensity,” which operates “in excess of any narrative or functional line.”^[5] To say that law is haunted by the figure of the abused Aboriginal child is also to point to the affective, political, legal, and imaginative afterlife of narratives and figurations that are part of law, and which are not ended with each case or legislative regime but which, unresolved, are always living on. The ways in which law narrates the past and the present is itself an effect of a colonial history of loss and repression, an effect that is not usually transparent in law. The persistence of state regulation of Aboriginal people is constituted through economic and political domains, as well as through the persistence of particular imaginaries—stories and metaphors that are part of the colonial legacy. So “the imaginary” is one domain of needed necessary intervention, among others, in order to effect social and legal change. Gordon seeks to “rewrite the present” by trying to “imagine beyond the limits of what is already understandable.”^[6] This means thinking beyond the abstractions of analytic categories to include affect, experience and culture. At the same time, we need to pay attention to the ways in which communities are materially affected by the legal and social policies that “haunting” marks—the ways in which real children, and real women and men, are harmed. This paper, then, argues for the recognition of the role of the imaginary in the possibility of transforming social and legal conditions, and in the delineation of legal responsibility. This recognition provides an important means to understand the ways in which law’s assertion of jurisdiction in the present relates to law’s similar assertions in the past, as well as the ways in which this assertion of jurisdiction disguises state law’s failures to properly encounter Aboriginal sovereignty and authority.

By way of an example of these practices, I provide a reading of harm and its relation to authority in the novels of Alexis Wright, a leading Australian novelist, which I argue together provide an exemplary text that counters state law’s representational practices and claims.^[7] What is needed to resist the use of the child figure as the occasion for further violence, I argue, and what this reading provides, can be described as a “counter-imaginary” to law’s imaginary. This counter-imaginary re-writes law’s narratives and figures, and makes visible that which law has occluded—it is a reading that provides a fuller account of harms compared to law’s. In particular, each of Wright’s three novels Plains of Promise (1997)^[8], Carpentaria (2006),^[9] and The Swan Book^[10] (2013) is concerned with the relation of harm to questions of Aboriginal authority. Plains of Promise most directly addresses the Stolen Generations; the later novels speak to questions of harm in ways that access underlying questions of the relation of harm to sovereignty, (Carpentaria), and to law’s account of the Aboriginal child in contemporary life (Swan Book). Together, all three of Wright’s novels provide a developed counter-imaginary to law’s continuing assertions of authority over Aboriginal people based on the figure of the “abused Aboriginal child,” from the early twentieth century to the present. These texts connect that which has been disconnected or omitted in law’s imaginary: harms to Aboriginal people caused by colonization; harms caused to Aboriginal people through law’s own violence; and harms to the sovereignty of Aboriginal people. This reading of Wright’s work provides a way of thinking through elements of authority—not only authority’s juridical and political aspects, but as these manifest in different forms of cultural representation. A central point here is that Aboriginal law has tended to be interpreted as a form of myth, or as a marker of “culture,” rather than as a source of authority. Wright directly takes on this issue, in both her fiction and non-fiction works. This question of authority is central to the ways in which the state has used the occasion of harm to intervene in Aboriginal communities. The interpretation of Aboriginal law as being of cultural, rather than authoritative significance, supports the underlying racialised and colonial logic for state intervention: in removing children from communities, states do not need to acknowledge that they are breaching the authority of Aboriginal sovereignties and laws.

The “Abused Aboriginal Child” in Law’s Claims to Jurisdiction in the Recent Past

From the early twentieth century onwards, state law has asserted jurisdiction over Aboriginal populations on the basis that it is addressing, preventing or redressing purported harms to Aboriginal children. Between 1995 and 1997, an Australian federal government agency, the Human Rights and Equal Opportunity Commission (HREOC), conducted an inquiry into the forcible removal of Aboriginal children from their families. HREOC’s final report, Bringing Them Home, published in 1997, found that from approximately 1910 to 1970, between one and three of every ten indigenous children was forcibly removed from their families, and that this led to ongoing physical and psychological harms.^[11] Bringing Them Home found that removals in the different states and territories were justified through a range of legislative regimes, including “protectionist” legislation that was specific to Aborigines,^[12] and more general welfare-based legislation.^[13] In removing children, officials often relied on claims of abuse or neglect, evidence for which was either not required, or which was justified on the sole basis that the child was Aboriginal, or was living in poverty.^[14] Another, more subtle, narrative relied upon by the state was that children were removed in order to attain better educational opportunities, and that their parents consented to or even solicited their removal.^[15] A number of survivors of these removals gave evidence to HREOC that they had not been abused or neglected, and that their parents did not consent to their removal.^[16] Bringing Them Home, and a recent online testimonial archive, have both documented the ways in which the purported “abuse” or “neglect” of children was often a ruse for the forced removal and assimilation of Aboriginal children. Many survivors have testified that they were sent to foster homes or institutions that were violent and abusive, when their family of origin was not.^[17] In an online testimony recorded in 2012, Debra Hocking recounts how her mother’s attempts to try to preserve her Aboriginal heritage were coded as “neglect.” Her Aboriginality, and attempts to preserve her Aboriginal culture, were at the heart of the reasons behind the removal of her children. Debra Hocking says:

Illegally we were split up. Now even back in those days it was the law to actually keep children together. Now my eldest sister was six and remembers it very vividly, us being taken away. It was on the grounds of neglect. Now I know we so often hear neglect. Now when I gave evidence to the Bringing Them Home report, Sir Ronald Wilson, the late Sir Ronald Wilson, asked if he could read my file, which I gladly showed him. And as he went through the file he said ‘There’s no evidence of neglect here.’ I said ‘No. That’s what I thought.’

...

I look at my Government file and look at how it all happened and how tragic it must’ve been for [my mother] and how she wanted to continue her culture and the authorities said no, you actually can’t do that because if you do—if you continue to, you know, raise your children in this way we’d say it’s neglect.

Australian courts have not adequately represented nor adjudicated the harms caused by the state through these past regimes.^[18] There have only been a handful of cases concerning harms arising from the Stolen Generations, and only one of these has succeeded.^[19] One of the most significant barriers to these claims succeeding has been the tendency of courts to interpret past actions of the state as having been carried out with the “best interests” of Aboriginal children in mind. In other words, courts have taken assertions of the beneficial intention of the state at face value, regardless of evidence of the extent of actual harm caused to Aboriginal children and communities as a result of the removals. The reading of beneficial state intention in these cases relies on an underlying narrative of harm prevention, and the assumption that the state had the wisdom, as well as the jurisdiction, to be able to decide what was best for Aboriginal children. Most courts have accepted the story that removals were carried out on the basis of harm prevention, rather than examining the racist and harmful assumptions and effects of the legislative frameworks, and state policies, which were based on the violent principle of assimilation. The harm-prevention narrative marked by the phrase “best interests” therefore occludes the role of state violence and its genocidal effects.
In the early case of Kruger v Commonwealth (“Kruger”),^[20] Aboriginal claimants argued the constitutional invalidity of the Aboriginals Ordinance 1918 (NT), which purported to give the Chief Protector entitlements to “undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste ...”^[21] The claim failed, and the court rejected the claim that the Ordinance was enacted for the purposes of genocide, because the actions it authorised were to be performed in the “best interests” of the Aboriginal people concerned, rather than with an intent to destroy their racial group.^[22] The court thereby failed to take account of the violence inherent in assimilative practices. The court took judicial notice of the existence of a general policy of child removal,^[23] a policy that would be condemned by present standards,^[24] but these observations had no legal effect. In the case of Cubillo v Commonwealth,^[25] Justice O’Loughlin held that there was insufficient evidence of a policy or practice of indiscriminate removal,^[26] and that there was no genocidal intent in either the legislation or its implementation by the Director of Native Affairs and others.^[27] In its interpretation, the court did not critically examine the operation of government policies that determined the removals, taking the view that the state was benevolent and well-intentioned. Justice O’Loughlin stated that the “beneficial interpretation of the legislation must remain paramount,” referring to a “school of thought prevailing at the time” that included “the belief that it was in the best interests of part Aboriginal children to assimilate them into the European mainstream”, and that those who removed Gunner and Cubillo were doing so “in the best interests” of the children.^[28] The Full Court of the Federal Court dismissed the subsequent appeal by the plaintiffs,^[29] and the plaintiffs were also denied leave to appeal to the High Court.^[30] Bruce Trevorrow’s claim, set out in the Trevorrow Cases, is the first and only of the Stolen Generations claims to succeed to date. In Trevorrow, the court noted that there was a general policy in which Aboriginal children were removed from their families,^[31] but since the organising legal question in Trevorrow relied on the interpretation of the specific legislative scheme in operation at the time,^[32] there is still no case in which a judicial finding regarding general policies of child removal has had legal effect.
The question of responsibility for suffering raises important questions about the location of the authority that is empowered to determine responsibility for harms, both past and present. But the question of sovereignty is not marked at all in the Stolen Generations cases: rather than seeing forcible removal as part of refusal of the state to acknowledge Aboriginal sovereignty and authority, and acknowledging that policies of assimilation were a violent assault against this authority, courts have both distanced specific acts of state actors from the context of these general policies of assimilation and have defined the state’s intentions as beneficial. This practice continues into the present. The state’s practices of both targeting Aboriginal sovereignty, and then omitting this violence from the legal record, are apparent in the archive that will be examined in the next Part, which comprises contemporary legislation that asserts a particular authority over Aboriginal people, based on law’s claim to offer protection to Aboriginal children—policies that also go to the heart of Aboriginal sovereignty.

The “Abused Aboriginal Child” in Law’s Claims to Jurisdiction in the Present

The “abused Aboriginal child” is a significant figure not only in Australian law, but is also central to the production of myths of the Australian nation-state. Of course, Australia is not alone in its deployment of the figure of the “abused child”: both the “abused child” and “the pedophile” have been significant to the development of techniques of governmentality, and to late liberal imaginaries, in a number of settler nations.^[33] These figures were important to twentieth century modes of government, and more recently have played a role in neoliberal regimes, as part of the underlying narratives that support governments’ increased regulation over particular populations and the simultaneous withdrawal of resources to those same populations.^[34] Further, the figure of the “abused child” functions as the postmodern sublime: alongside “the terrorist”, the “child abuser” or “pedophile” signifies one of the greatest contemporary evils, figured in ways that strip away context and reduce all to an absolute. Perhaps the most literal example of this symbolic function can be seen in The Northern Territory Intervention, which was implemented in Australia in 2007 through a set of laws that permitted the seizure of local community land leases by the federal Liberal government, the deployment of the army into Northern Territory communities, the use of extra police powers, and the quarantining of welfare benefits. This regime ended in 2012, when it was replaced by a similar set of laws implemented by the federal Labor Government.^[35] The occasion for the Intervention was the publication of the Little Children are Sacred Report (2007),^[36] following an Inquiry commissioned by the Territory’s Inquiries Act.^[37] The Board of Inquiry’s task was to, among other things, “Examine the extent, nature and factors contributing to sexual abuse of Aboriginal children, with a particular focus on unreported incidents of such abuse,” and to “Consider how the NT Government can help support communities to effectively prevent and tackle child sexual abuse.”^[38] The subsequent Report found that child sexual abuse was “an issue of urgent national significance.”^[39] A number of earlier reports had also found that child abuse and violence against women were significant problems in indigenous communities in the Northern Territory.^[40] However, the Northern Territory Intervention legislation and subsequent Stronger Futures legislation introduced measures that went well beyond the issue of child abuse, to affect land rights, welfare benefits, and access to services. The first recommendation of the Board of Inquiry was to emphasise “the critical importance of governments committing to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities,”^[41] but this principle was not carried through in the subsequent legislation, or in the subsequent iterations of government policy. The Report also noted the roles of poverty, poor health and poor employment opportunities in producing violence, and included recommendations to support Northern Territory communities by providing additional resources, such as provision for community consultation, family support services, education, employment and housing, but most of these recommendations were not implemented in the subsequent legislation either.
The legislation is framed by narratives of welfare and benefit that are expressed in terms of Aboriginal communities generally—but whose subtext, developed in the surrounding publicity and second-reading speeches, is specifically focused on the child. Section 5 of the Northern Territory National Emergency Response Act states that the aim of the Act “is to improve the wellbeing of certain communities in the Northern Territory.” Section 4 of the Stronger Futures Act states: “The object of this Act is to support Aboriginal people in the Northern Territory to live strong, independent lives, where communities, families and children are safe and healthy.” Section 3 describes the Act as “contain[ing] a number of measures aimed at building stronger futures for Aboriginal people in the Northern Territory.” The public debates and second-reading speeches that led to the Northern Territory Intervention and Stronger Futures legislation were couched more directly in relation to narratives of harm to the Aboriginal child. In his Second Reading Speech for the Northern Territory National Emergency Response Bill 2007, the then Minister for Community Services, Senator Scullion, stated that Australia was confronted with “a failed society where basic standards of law and order and behaviour have broken down and where women and children are unsafe”. ^[42] Senator Scullion went on to say that Little Children Are Sacred was “clear evidence that the Northern Territory government was not able to protect ... children adequately, [so] the [federal] Howard government decided that it was ... time to intervene and declare an emergency situation and use the Territories Power available under the Constitution to make laws for the Northern Territory.”^[43]
In the Second Reading Speech of the Stronger Futures Bill, Jenny Macklin made several references to children’s interests and welfare as justifications for the Bill, stating that “With increased visibility of the extent of child neglect in the Northern Territory must come our reaffirmed commitment to do all that we can to ensure that children are safe.”^[44] Changes to welfare, (for example, connecting school attendance to welfare payments, even though this policy introduced in the original legislation had not led to better school attendance), regulation of access to pornography and alcohol, and the management of property, were all connected to a narrative of futurity, with the child at its centre:

People in the Northern Territory want for their children what each of us, right across the country, want for our children:

that they will grow up healthy and safe and get a good education,

that they have a bright future that includes a roof over their heads, food on the table, and a good job, and
that they will be strong people, proud of who they are.^[45]

Significantly, although the language of the laws refer to Aboriginal welfare and well-being, the legislation affects matters ranging from land to income management to police powers, issues that are essentially about power. A narrative of harm-prevention is used to justify the legislative response that provides for, simultaneously, both the withdrawal of state services to Aboriginal communities that non-Aboriginal Australians take for granted, and the introduction of techniques of colonial-type governance. Claiming a role in the adjudication of harms between Aboriginal people, the state asserts a violent jurisdiction over those communities.^[46]
There is a clear connection between the Aborigines Protection Acts of the past and the current policies of the Intervention, both of which are based on narratives of harm-prevention. The “abused Aboriginal child” becomes a dangerous figure in law’s imaginary, a key trope through which the scope of “legitimate” violence by the state becomes overly broad, and a figure that also limits the subsequent adjudication of acts of the state. This legal violence is one of the effects of what James Waldram describes as “primitivist discourses”—here, the habit of state law in coding Aboriginal law as culture or custom, and as belonging to the category of the pre-modern (and thus not deserving the space of encounter).^[47] When the state takes this approach, it asserts an authority over Aboriginal communities and children in ways that disregard the autonomy of both. In Canada, the state has operated according to a different specific logic from the Northern Territory Intervention, implementing legislation and policies that are designed to keep Aboriginal children in Aboriginal communities and homes regardless of the risk of harm—but the underlying assumptions, first, that the state has a right to intervene, and second, that it is not offending any other authority in doing so, are the same.^[48] In order to interrupt these assertions of authority and jurisdiction, we need ways to encounter and intervene in the complexity of imaginaries of violence and harm. State law excludes, subordinates and suppresses Aboriginal sovereignties and laws. Further, law’s habits of isolating harms means that law fails to read historical and contemporary violence together and so register the connection between the Aborigines Protection Acts and the Northern Territory Intervention. In the next Part of this article, I consider the work of Alexis Wright, and offer a reading of her work that re-situates the state’s legal archive within the wider context of competing Aboriginal authorities and laws. This literary counter-imaginary provides an alternate “through-line” of the figure of the Aboriginal child, to that provided by law, one which directly takes issue with the question of authority—and so provides a domain from which to critique and unpack law’s archive.

Alexis Wright’s Counter-Imaginary of Harm

Literary jurisprudence is located in what the South-African jurisprudent Karin van Marle has described as a “liminal space/landscape,” which can be thought of as being located “somewhere between law and the humanities; between law and literature.”^[49] Such liminal spaces are particularly important for Australian jurisprudence because state law provides no space for encounters between Aboriginal and non-Aboriginal authorities and legalities. Literary claims for social justice relating to the Stolen Generations have been pursued in Australia largely through the genres of life writing and autobiography.^[50] While Wright’s novel Plains of Promise (1997) thematically addresses the harms suffered by the Stolen Generations, depicting the intergenerational trauma of three Aboriginal women, the novel moves beyond these genres to connect the harms suffered by the Stolen Generations to questions of Aboriginal sovereignty and law. Set in the 1950s, Plains of Promise tells the story of a mother and her child, Ivy Koopundi, who are forcibly removed to St Dominic's Mission in northern Queensland. The missionary Errol Jipp immediately separates the child from her mother, Aboriginal Number 976-805, and the mother despairs: “Her heart stopped dead”.^[51] Alarmed by her grief, Jipp imprisons the woman in the “black hole,” the prison cell at the Mission.^[52] When she is released, she soaks herself with kerosene before walking into the campfire. After her mother's death, Ivy Koopundi is entirely alone and vulnerable to Jipp, who repeatedly rapes her. The novel describes the terrible suffering of Ivy and her mother. But the novel also figures suffering beyond a personal framework, connecting the trauma of mother and child to questions of law and sovereignty. The novel opens with a description of the mission tree at St Dominic’s:

The Aboriginal inmates thought the tree should not have been allowed to grow there on their ancestral country. It was wrong. Their spiritual ancestors grew more and more disturbed by the thirsty, greedy foreign tree intruding into the bowels of their world. The uprising fluid carried away precious nutrients; in the middle of the night they woke up gasping for air, thought they were dying, raced up through the trunk into the limbs and branches, through the tiny veins of the minute leaves and into the flowers themselves.^[53]

This description provides an opening framework for harm that connects the psychological and physical harms suffered by members of the Stolen Generations to the history of invasion, and to the ongoing colonial violence that has been committed against Aboriginal law and land. In the adjudication of harms suffered by members of the Stolen Generations, in cases such as Cubillo^[54] and Trevorrow,^[55] such harms were framed as only personal, and as disconnected from communities’ removal from their land, and from their laws. In Plains of Promise, Aboriginal jurisdiction is asserted from the start: the removal of children is immediately connected to “their” ancestral country, and the presence of the tree is a breach of their laws, it is “wrong.” The invading tree is “thirsty, greedy, foreign” and it intrudes into the “bowels” of the Aboriginal world, parasitically carrying away their “precious nutrients”.
Halfway through the novel, there is a moment of ambivalent healing that is figured through the land, not the person: “the land turned into a brilliant carpet of bright shades of green moments after the rain finally stopped ... The land rejoiced. The words of the world whistled by in an endless murmur of repeated rhythms.”^[56] The novel ends with a darker tone, again figured through land and animal life:

Over time ... the waterbird’s children’s children’s child went mad, because she lost her daughter in a terrible place. And the secret of the lake was lost because the crows were too interested in evil things and could not control the waterbird’s madness.

So the great lake dried up and is no more.^[57]

Thematically, Plains of Promise deals with characters who suffer, but the evolution of these characters is not framed through a trauma narrative of healing and resolution. Rather, the removal of Aboriginal children is shown to go to the heart of Aboriginal law, and to offend sovereignty, law and land, as well as individuals. In its metaphors and narrative, it demonstrates that assimilation destroyed Aboriginal legalities and authorities, as well as people. These practices of representing harm are further developed in Wright’s subsequent two novels, Carpentaria and The Swan Book, which, like Plains of Promise, are interested in the relationship between law, authority and violence in Australia’s past and present, and in showing the continuity between these past and present harms. Reading these texts together shows how questions of harm, and responsibility for suffering, become central to understanding questions of authority—and similarly, questions of authority are revealed to have questions of harm at their centre.
Carpentaria was awarded the Miles Franklin Award on 21 June 2007—the day the Northern Territory Intervention commenced. The novel is set in the Gulf of Carpentaria, in a small town that the bureaucrats call “Masterton,” and the inhabitants, “Desperance.” Desperance has a violent history of colonisation, which continues into the present—the white inhabitants commit regular acts of violence and sexual predation on the Aboriginal population, who are also exploited by the nearby multinational mining company, Gurfurritt. In Carpentaria, western law is not taken for granted as the sole authority operating on Australian territory, but is represented as a particular source of authority, contextualised alongside and against Aboriginal legal authorities. The law of the Waanyi people and the Waanyi land inheres in the figure of a serpent, whose covenant “permeates everything.”^[58] Carpentaria ends with a violent uprising of this law and this land, destroying the white settlement, and bringing about the re-emergence of the Waanyi nation’s Dreaming.
One of the significant interventions of both Carpentaria and The Swan Book is to question the status of what is known as “Dreaming” or “Dreamtime.”^[59] The novels challenge the ways in which Aboriginal law has tended to be interpreted as a form of myth, or as a marker of “culture,” rather than as a source of authority and judgment. In Australia, Native Title has been the domain in which Aboriginal sovereignty is encountered (and then displaced) by the common law. In these cases, state law has read Aboriginal sovereignty as finite and as superseded, law refusing to entertain the possibility of a plurality of sovereignties and laws.^[60] At best, Aboriginal law is recognized as having been supported by a sovereignty that once existed, but which has no authority now.^[61] Shaunnagh Dorsett and Shaun McVeigh suggest that following the Yorta Yorta case, it seems clear that “[d]espite the use of the phrase ‘traditional laws and customs,’ there can only be one legal system.”^[62] Following these failed encounters between Aboriginal and non-Aboriginal laws, Aboriginal authority becomes coded not as law, but as “custom”.^[63] Carpentaria and The Swan Book do not only offer an alternative version of the present, but also make a claim for authority to know that present, to assert a “reality” for it. Through these practices, these texts make visible the contingency of law’s claims to exclusive jurisdiction over reality—including the claim that law alone has the authority to adjudicate harms to Aboriginal children. In the public debates and in the second-reading speeches behind the Northern Territory Intervention and Stronger Futures legislation, for example, an imaginary of harm is organized through the figure of the “abused Aboriginal child,” and a tale of Aboriginal violence is told, which the state asserts it alone can and should resolve. In doing so, the state has rejected meaningful consultations with Aboriginal communities and their laws. In Carpentaria, in contrast to the common law, it is not Aboriginal sovereignty but the white state that is revealed to have been exceptional, historically contingent and which is, finally, extinguished. The natural apocalypse that destroys Masterton and its western laws proves at the same time that Aboriginal law is alive. Law’s song is the source of the renewal and hope at the end of the novel: “It was a mystery, but there was so much song wafting off the watery land, singing the country afresh ...”.^[64] This aliveness—the capacity of Aboriginal legal knowledge not just to exist as a marker of culture, but to thrive as an ongoing source of authority and generator of new law—is exactly what is denied in Native Title cases such as Yorta Yorta^[65] and in the Stolen Generations cases.
Together, these novels demonstrate that the frameworks of meaning within which narratives are embedded are as significant as the narratives of harm themselves. These wider questions of meaning provide the context for The Swan Book’s specific focus on the figure of the “abused Aboriginal child.” This novel demonstrates the ways in which narratives of rape and abuse are always framed within wider (usually implicit) questions of authority, and that care needs to be taken in their interpretation. The Swan Book, like Carpentaria, foregrounds the role of narrative and figuration in creating and adjudicating “realities.” It is 2088, and the world is in a state of apocalyptic climate change. Millions of people have left the global north, crossing the seas in boats—“countless stateless millions of sea gypsies looking for somewhere to live”.^[66] Most do not find a home, and die at sea. In Australia, the Northern Territory Intervention is still in force. The novel is focalized through an Aboriginal teenage girl, Oblivion Ethylene, nicknamed “Oblivia”. She lives in the Northern Territory within “the world’s most unknown detention camp”^[67]—in a rusted boat on the periphery of an Aboriginal community that has been pushed onto a swamp and surrounded by government razorwire. This is just one of the many Aboriginal communities that have been surrounded by the army, which is determined “to intervene and control the will, mind and soul of the Aboriginal people”.^[68] Oblivia has been mute ever since she was gang-raped as a young child by members of her own community. The invasion of harms is figured as a vicious “cut snake virus” that has invaded her mind, and which she can neither fight nor eliminate.^[69] She is trying to “regain sovereignty over [her] own brain”.^[70] The plot of the novel is based on her “quest” to regain this sovereignty.^[71] In an effort to stay sane, Oblivia befriends thousands of black swans who have come to live in the swamp, drawn there by their own law. Among the European refugees is “the maddest person on Earth”, Aunty Bella Donna of the Champions^[72], a rare survivor who walks deep into the interior of Australia to find Oblivia, and who cares for her for some time.
In 2088, the white state of Australia is still strong. A minority of Aboriginal nations and their laws have been cynically recognised by the state, in return for assimilation. Warren Finch, the first Aboriginal President of Australia, is described as being one of the “well and truly yes people”.^[73] Although growing up close to Oblivia’s community, Finch’s people are very different—they go along with state rule, and are given concessions by the state to apply their own laws. Finch’s “Aboriginal Government Nation” has grown “prosperous” from “saying yes, yes, yes to anything on offer—a bit of assimilation, a bit of integration, a bit of giving up your own sovereignty, a bit of closing the gap.”^[74] Finch’s traditional authority as a senior lawman is recognised when he takes Oblivia from her home, and claims her as his wife, blowing up her swamp as he leaves. The story then follows Oblivia to a violent southern city, where Warren Finch makes her First Lady.
How can Oblivia tell the story of her rape, and of the other harms she has suffered, considering the history of representation of the child figure in Australian law and culture? In the narratives driving the twentieth century practices of removal, and Northern Territory Intervention legislation, children became legible as law’s occasion for intervention, but are not legible in themselves, for themselves. Oblivia becomes mute at the moment of her rape, her “last spoken word ... left orbiting unfinished, astray, irredeemable and forsaken”.^[75] It is significant that Oblivia is silent by choice. Her muteness arises not out of passivity, or incapacity, but out of rage. She is on one occasion about to speak out loud, but then, as always, she stops herself:

... always in the nick of time, any of those screaming words that made it up to her mouth, crashed like rocks landing on enamel at the back of her clenched teeth. So, by remaining silent, saying nothing and stewing with hate and spitefulness in her guts, she reminded herself with a shiver down her spine that she would rather be dead, than waste her breath speaking to an idiot.^[76]

As a “little Aboriginal kid”,^[77] Oblivia cannot talk about the harm she has suffered without this speech act leading to legal violence. Given the legal and political history of the figure of the “abused Aboriginal child,” it is impossible for Oblivia to tell the story of her rape—by members of her own community—without her story being used as a narrative of community or familial dysfunction, which has justified violent state interventions into Aboriginal communities. To tell the story of her rape as a distinct event would also demonstrate a misunderstanding of the nature of harms—particularly the interrelation of sexual violence with colonialism, poverty and structural racism. Law’s jurisdiction over Aboriginal people is made possible not only through problematic narratives, but also through significant erasures and silences. The Northern Territory Intervention is justified by a story of perceived harm to the Aboriginal child, but its narrative of harm-prevention is only possible because law excludes from the record the connection of this contemporary state violence to state practices of the past, as well as the connection of the material suffering of Aboriginal people to ongoing states of poverty and structural racism. Instead of a rape narrative, then, The Swan Book tells the story of interconnecting environmental, historical, political, economic and legal harms, which are missing from state law’s account, and largely from that of dominant Australian culture. It is not that Oblivia’s suffering is less important than these other harms, but that all these harms must be described if Oblivia’s rape is to be properly represented, and not merely instrumentalised in an assertion of state authority: “like any other long-standing conflict around the world, one act of violation becomes a story of another”.^[78]
Law’s framework of personal harms fails to account for the nature of harms that are not caused by isolated, sudden events, but which accrue as part of an eviscerating daily life. In contrast, the representation of Oblivia’s suffering in The Swan Book is the aesthetic version of what Catherine Malabou explains as the “new wounded.”^[79] This population, Malabou argues, includes:

... the jobless, the homeless, the sufferers of post-traumatic stress syndrome, the deeply depressed, the victims of natural catastrophes, who all began to resemble one another ... Forms of post-traumatic subjectivity, as Zizek calls it; new figures of the void or identitarian abandonment who elude most therapies, especially psychoanalysis.^[80]

Malabou asserts these beings live and change, but their lives do not fit into a teleological narrative, their suffering is never redeemed or given meaning—they cannot be healed.^[81] This seems a more accurate description than law’s version, of the suffering experienced by those who have lived under the conditions of settler colonialism, and under continuing legislative regimes such as the Northern Territory Intervention: there is no start and finish to the violence, and usually no single defining traumatic event, but rather a continuing practice of accruing violence. The call of the “new wounded” asks for different kinds of legal and ethical responses from those modeled on the adjudication of rupturing, traumatic events such as accidents and war, which are clear events with a start and a finish. The harms of colonization often develop through accretion. The toll is still taken on the body and the mind, but it is a different kind of brokenness, and demands a different kind of response. Plains of Promise, Carpentaria, and The Swan Book do not represent violence as a discrete or extraordinary event, but rather document a process of ongoing evisceration. In Plains of Promise, the removal of Ivy and her mother takes place in the context of continuing colonial violence, including transgenerational rape and abuse, and ongoing breaches of Aboriginal sovereignty and laws. In Carpentaria, the mayor, Stan Bruiser, has been voted the “citizen of the year ... for ten straight years”,^[82] despite it being commonly known that he is a brutal man, who frequently rapes Aboriginal women. Truthful, the town’s policeman, is also sexually predatory. This is how power works in Masterton, and there is no recourse to law. In The Swan Book, we are located in a post-apocalyptic landscape, but are missing the “eventfulness” of an apocalypse. Rather than harms and losses being resolved, they heighten as the novel progresses. The novel begins with the internal displacement of Aboriginal people, and the loss of Europe following climate change, with: “whole herds of deer ... left standing like statues of yellow ice while blizzards stormed”.^[83] The boat people who flee this disaster, “the uncharted floating countries of condemned humanity”,^[84] die at sea, “Men, women and children captured forever in the ghost nets of zero geography”.^[85] Plagues of rats, owls, butterflies and locusts flourish and then are cut down; droughts begin to kill the coastal areas, while floods overwhelm the continent’s centre.
In its account of harms, The Swan Book rejects healing and closure. Oblivia’s virus responds to any suggestion of healing and closure with violence.^[86] The apocalypse at the end of Carpentaria is ultimately a positive event, re-animating law and land, and bringing hope to the region, but The Swan Book’s ending is bleak—there is no resolution of the suffering endured during the novel, and there is little hope. The apocalypse in The Swan Book precedes the novel’s opening and is never explained. By the end, there are even further losses: Bella Donna dies; Warren Finch is assassinated; all the swans Oblivia has loved are taken, and finally, Oblivia moves back to the swamp where she originated, holding the broken body of a last remaining swan. Then time shifts again and she appears as a haunting figure who may or not be still living, and who is only glimpsed from time to time. She is still possessed by the virus. The Swan Book ends with the still-apocalyptic world, and the call of a haunting “madness”.^[87]

Conclusion: A Literary Jurisprudence of Harm

As the occasion for continuing legal violence, the haunting figure of the “abused Aboriginal child” persists in affective and psychological registers—with serious legal, political and material effects. The ongoing psychological and economic harms of the Stolen Generations, harms that arose from the “beneficial” intentions of the Aborigines Protection Acts, have been well-documented.^[88] The contemporary Northern Territory Intervention has been the subject of criticism from a number of human rights organisations, including the United Nations.^[89] In their recent, detailed analysis of the Intervention, Jon Altman and Susie Russell argue that “the Intervention had no foundational, evidence-based policy logic, and no baseline against which to measure improvements.” ^[90] They conclude that the evaluations of the Intervention themselves seem to act as another state technique for the administration of Aboriginal people.^[91] Jon Altman’s additional, detailed analysis of the Intervention, spanning over 150 pages, is based on the government’s own analysis, and concludes that effects include an increase in violence, malnutrition and truancy in particular communities following the Intervention.^[92]
Law’s violent jurisdictions arising through this haunting figure are inherently connected to law’s failure to recognize and encounter Aboriginal sovereignties and law. At present there is no space within Australian state law for authentic encounters between western and Aboriginal sovereignties and laws to take place. We need to push for common law to properly encounter Aboriginal sovereignties and laws, and develop a jurisprudence of this encounter. The work of indigenous scholars such as Christine Black, John Borrows, and Val Napoleon is central to developing the jurisprudence of encounter,^[93] which would include investigating the ways in which questions of harm would be framed. How do we make spaces for these encounters, with or without state recognition? How would Aboriginal laws respond to the harms of past and present? The work of this essay is part of this jurisprudence of encounter, but is advocating a specifically literary jurisprudence that emphasizes the significance of the work of indigenous creative writers such as Alexis Wright. This jurisprudence of encounter takes on law’s imaginary—its figures, narratives and frameworks that are not immediately apparent, and that are not the focus of analyses directed at legal principles and logics. This form of jurisprudence can work to undo the harm of “primitivist discourses” that subjugate Aboriginal people and their experiences.^[94] The development of literary counter-imaginaries of harm therefore provide much-needed spaces in which to develop a jurisprudence of harm: a domain in which encounters between Aboriginal and non-Aboriginal authorities are marked. Such a jurisprudence is urgently needed to meet the calls of both contemporary and historical violence.

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^[1] I would like to give my sincere thanks to the anonymous reviewers of this article, for their insightful comments and suggestions.
^[2] Felman, Shoshana. The Juridical Unconscious: Trials and Traumas in the Twentieth Century (Cambridge, MA: Harvard UP, 2002) at 171.
^[3] Avery F. Gordon, Haunting and the Sociological Imagination, Minneapolis: University of Minnesota Press, 2008.
^[4] Ibid, xvi.
^[5] Brian Massumi Parables for the Virtual: Movement, Affect, Sensation Durham: Duke UP, 2002 at 26.
^[6] Gordon, supra note 3 at 195.
^[7] The phrase “state law” is used to distinguish the particular legal system of Australian state, territory and federal governments from the multiple Aboriginal legal systems and relations that also operate within Australian territories.
^[8] Alexis Wright, Plains of Promise (Brisbane: Queensland University Press, 1997).
^[9] Alexis Wright, Carpentaria (Artarmon: Giramondo, 2006).
^[10] Alexis Wright, The Swan Book (Artarmon: Giramondo, 2013).
^[11] Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families Sydney: Commonwealth of Australia, 1997 (hereafter referred to as ‘Bringing Them Home’), 308 et seq.
^[12] Examples of these regimes include the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), s 9, 11, 13; Aborigines Protection Act 1886 (Vic); Aborigines Act 1890 (Vic); Aborigines Protection Act 1890 (WA); Aborigines Protection Act 1909 (NSW); Northern Territory Aboriginals Act 1910 (SA) 1910; and Aborigines Act 1911 (SA).
^[13] Bringing Them Home, supra note 11 at 22-34.
^[14] Ibid.
^[15] For an analysis of the narrative of consent and its “doubly wicked” effects, see Honni van Rijswijk and Thalia Anthony, “Can the Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010),” (2012) Melbourne University Law Review vol. 36, no. 2, pp. 618-655; see also Trish Luker, “‘Postcolonising’ Amnesia in the Discourse of Reconciliation: The Void in the Law’s Response to the Stolen Generations” (2005) 22 Australian Feminist Law Journal 67.
^[16] Ibid, 22—42.
^[17] Stolen Generations’ Testimonies Foundation 2012, Stolen Generations’ Testimonies, viewed 1 February 2015,
http://stolengenerationstestimonies.com/index.php/testimonies/973.html
^[18] These cases have been given significant scholarly attention in a number of contexts. See, for example, Ann Genovese, “Metaphor of redemption, myths of state: Historical accountability in Luhrmann's Australia and Trevorrow v South Australia” (2011) 20 Griffith Law Review 67; Pam O’Connor, “History on Trial: Cubillo and Gunner v The Commonwealth of Australia” [2001] AltLawJl 7; (2001) 26 Alternative Law Journal 27, 30. See also Chris Cuneen and Julia Grix, “The Limitations of Litigation in Stolen Generations Cases” (Research Discussion Paper No 15, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2004); Antonio Buti, “Reparations, Justice Theories and Stolen Generations” [2008] UWALawRw 7; (2008-2009) 34 University of Western Australia Law Review 168; Barbara Ann Hocking and Margaret Stephenson, “Why the Persistent Absence of a Foundational Principle? Indigenous Australians, Proprietary and Family Reparations” in Federico Lenzerini (ed) Reparations for Indigenous Peoples (2008) 477, 520; Robert van Krieken “Is Assimilation Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth” [2001] SydLawRw 10; (2001) 23(2) Sydney Law Review 239; Trish Luker, “‘Postcolonising’ Amnesia in the Discourse of Reconciliation: The Void in the Law’s Response to the Stolen Generations” (2005) 22 Australian Feminist Law Journal 67; Antonio Buti, “The Stolen Generations Litigation Revisited” [2008] MelbULawRw 13; (2008) 32 Melbourne University Law Review 382; and Honni van Rijswijk and Thalia Anthony, “Can the Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010),” (2012) Melbourne University Law Review vol. 36, no. 2, pp. 618-655.
^[19] The High Court denied claims for compensation in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (“Kruger”), and the Federal Court denied claims in Cubillo v The Commonwealth [No 2] [2001] FCA 887; 112 FCR 1 (“Cubillo”). The Western Australian Supreme Court recently denied a claim for compensation in Collard v The State of Western Australia [No 4] [2013] WASC 455. South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 (“Lampard-Trevorrow”), where the court dismissed the State’s appeal against the decision of Gray J in Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 (“Trevorrow”), has been the only successful Stolen Generations case (hereafter referred to as the “Trevorrow cases”).
^[20] [1997] HCA 27; (1997) 190 CLR 1.
^[21] Aboriginals Ordinance 1918 (NT), s 6(1).
^[22] Kruger v The Commonwealth 70–1 (Dawson J), 88 (Toohey J), 107 (Gaudron J), 144 (McHugh J), 159 (Gummow J).
^[23] Kruger, supra note 19 at 40.
^[24] Ibid.
^[25] [2000] FCA 1084; (2000) 103 FCR 1. A number of aspects in the trial case favourable to the applicants were reversed on appeal, but all adverse findings were affirmed: Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455 (“Cubillo (Appeal)”).
^[26] Cubillo, supra note 19 at 103–8 [301]–[321]; 358 [1159]–[1160].
^[27] Ibid, 483 [1561].
^[28] Ibid, [1560].
^[29] Cubillo (Appeal) [2001] FCA 1213; (2001) 112 FCR 455, 579 [473] (Sackville, Weinberg and Hely JJ).
^[30] Transcript of Proceedings, Cubillo v Commonwealth (High Court of Australia, D10/2011 Gleeson CJ and McHugh J, 3 May 2002).
^[31] Trevorrow, supra note 19 at 239, referring to the judicial recognition in Kruger, supra note 19 at 40.
^[32] Cubillo, supra note 19 239 [431].
^[33] Lauren Berlant was among the first scholars to explore the political consequences of public panics about children’s sexuality in the late twentieth-century United States (Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham, NC: Duke University Press, 1997). Berlant’s work was followed by James Kincaid’s argument that these sex panics increased the laws of child protection, increased government regulation over populations, and police powers, without in fact increasing the well-being of children (since these laws were also accompanied by policies that decreased welfare provisions for children) (James R. Kincaid, Erotic Innocence: The Culture of Child-Molesting (Durham, NC: Duke University Press, 1998). More recently, Roger Lancaster has demonstrated how pedophilia sex panics support “the punitive state” or the intersection of neoliberal economic and carceral regimes (Roger N. Lancaster, Sex Panic and the Punitive State (Berkeley: University of California Press, 2011). For an analysis of the intersections of the figure of the pedophile with techniques of governmentality, and particularly neoliberalism, see also Lee Edelman, No Future: Queer Theory and the Death Drive (Durham: Duke University Press, 2004); Gillian Harkins, “Foucault, the Family and the Cold Monster of Neoliberalism,” Foucault, the Family and Politics, Eds. Leon Rocha and Robbie Duschinsky (London: Palgrave McMillan, 2012): 82-120; and Rose Corrigan, “Making Meaning of Megan’s Law,” Law and Social Inquiry 31, no. 2 (2006): 267 312.
^[34] See Elizabeth Povinelli, Economies of Abandonment: Social Belonging and Endurance in Late Liberalism (Durham: Duke University Press, 2011).
^[35] When the Northern Territory Intervention came to the end of its five-year period in July 2012, it was
immediately replaced by the Stronger Futures in the Northern Territory Act 2012 (Cth) (No. 100) and related laws: Stronger Futures in the Northern Territory Act 2013 (Cth) (No. 184); Social Security Legislation Amendment Act 2012 (Cth) (No 102). These laws will operate for a 
ten-year period: Stronger Futures s 118. Stronger Futures is broken up into a number of Parts that administer aspects of the lives of Aboriginal citizens in the Northern Territory. “Tackling alcohol abuse” (Part 2) is aimed at “reducing alcohol-related harm to those Aboriginal people”; “Land reform” (Part 3), is “aimed at facilitating the granting of rights and interests, and promoting economic development”; “Food security” (Part 4), and some miscellaneous matters (Part 5) are also covered. The legislation includes income management schemes, and provisions for the suspension of parents’ welfare payments if children’s attendance rate at school is considered unacceptable (Social Security Legislation Amendment Act 2012 (Cth) (No 102) Sch 2.). I use the term “Stronger Futures” to refer to this regime.
^[36] R Wild and P Anderson, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Child Sexual Abuse (Darwin: Northern Territory Government 2007) (“the Report”).
^[37] The Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse was established on 8 August 2006 (“the Inquiry”).
^[38] Wild and Anderson, supra note 36 at 4.
^[39] Ibid, at 22.
^[40] Chris Cunneen and Terri Libesman, A Review of International Models for Indigenous Child Protection, A report prepared for the NSW Department of Community Services (2002); Human Rights and Equal Opportunities Commission (HREOC), Ending Violence and Abuse in Aboriginal and Torres Strait Islander Communities — Key Issues: An Overview Paper of Research and Findings by the Human Rights and Equal Opportunities Commission, 2001–2006 (Sydney: HREOC, 2006); NSW Aboriginal Child Sexual Assault Taskforce, Breaking the Silence: Creating the Future, Addressing Child Sexual Assault in Aboriginal Communities in NSW (Sydney: NSW Premier’s Department, 2006); Queensland Crime Commission and Queensland Police Service, Child Sexual Abuse in Queensland: The Nature and Extent: Volume 1. Project Axis (Brisbane, 2000); S Gordon, K Hallahan and D Henry, Putting the Picture Together, Inquiry into the Response by Government Agencies into Complaints of Family Violence and Child Abuse in Aboriginal Communities (Perth: Department of the Premier and Cabinet Western Australia, 2002).
^[41] Wild and Anderson, supra note 36 at 21.
^[42] Senator Scullion (Minister for Community Services) “Northern Territory National Emergency Response Bill 2007”—Second Reading Speech 8 August 2007 Senate Canberra.
^[43] Ibid.
^[44] The Hon Jenny Macklin MP “Stronger futures in the Northern Territory Bill 2011”—Second reading speech 23 November 2011 Parliament House Canberra.
^[45] Ibid.
^[46] See also Desmond Manderson, “Not Yet: Aboriginal People and the deferral of the Rule of Law” ARENA Journal (2008) no. 29/30 222; and Honni van Rijswijk, “Archiving The Northern Territory Intervention in Law and in the Literary Counter-Imaginary,” (2014) Katherine Biber and Trish Luker (eds) Australian Feminist Law Journal Special Issue: Evidence and the Archive: Ethics, Aesthetics and Emotion 40(1) 117—133.
^[47] See James Waldram’s chapter on “the traumatised Aboriginal” in Revenge of the Windigo: The Construction of the Mind and Mental Health of North American Aboriginal Peoples (Toronto: University of Toronto Press, 2015) at 212-236.
^[48] See Marlee Kline, “Child Welfare Law ‘Best Interests of the Child’ Ideology, and First Nations” (1992) 30 Osgoode Hall LJ 375) and Emma LaRocque, “Re-examining Culturally Appropriate Models of Criminal Justice” in Michael Asch, ed., Aboriginal and Treaty Rights in Canada (Vancouver: UBC Press, 1997).
^[49] Karin van Marle, “Liminal landscape—law, literature and critique in post-apartheid South Africa”, Genres of Critique, eds. Karin Van Marle and Stewart Motha (Stellenbosch: 2013, Sun Press) at 128.
^[50] See Anne Brewster, Aboriginal Women's Autobiography. Sydney: Oxford UP in association with Sydney UP, 1996. See also Carole Ferrier, “‘Disappearing Memory’ and the Colonial Present in Recent Indigenous Women’s Writing,” JASAL 2008 Special Issue: The Colonial Present.
^[51] Wright, Plains of Promise, supra note 8 at 13.
^[52] Ibid, 38.
^[53] Ibid, 4.
^[54] [2000] FCA 1084; (2000) 103 FCR 1.
^[55] South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 (“Lampard-Trevorrow”), where the court dismissed the State’s appeal against the decision of Gray J in Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 (“Trevorrow”), has been the only successful Stolen Generations case.
^[56] Wright, Plains of Promise, supra note 8 at 80.
^[57] Ibid, 304.
^[58] Ibid, 11.
^[59] See also Alexis Wright, “Dreaming of Others: Carpentaria and its Critics” (2010) 16(2) Cultural Studies Review 194 and Frances Devlin-Glass, “A Politics of the Dreamtime: Destructive and Regenerative Rainbows in Alexis Wright's Carpentaria,” (2008) Australian Literary Studies 23.4.
^[60]Stewart Motha, “The Failure of ‘Postcolonial’ sovereignty in Australia,” (2005) 22 Australian Feminist Law Journal 107 at 108.
^[61] Yorta Yorta Aboriginal Community v The State of Victoria (2002) HCA 58 para 43 per Gleeson CJ, Gummow and Hayne JJ.
^[62] Shaunnagh Dorsett and Shaun McVeigh, “An Essay on Jurisprudence, and Authority: The High Court of Australia Yorta Yorta (2001) 56 Northern Ireland Legal Quarterly, 12.
^[63] Ibid.
^[64] Wright, Carpentaria, supra note 9 at, 519.
^[65] Yorta Yorta Aboriginal Community v The State of Victoria (2002) HCA 58 para 43 per Gleeson CJ, Gummow and Hayne JJ.
^[66] Wright, The Swan Book, supra note 10 at 23.
^[67] Ibid, 40.
^[68] Ibid, 47.
^[69] Ibid, 1.
^[70] Ibid, 4.
^[71] Ibid.
^[72] Ibid, 11.
^[73] Ibid, 111.
^[74] Ibid, 116.
^[75] Ibid, 20.
^[76] Ibid, 38.
^[77] Ibid, 2.
^[78] Ibid, 20.
^[79] Catherine Malabou, The Ontology of the Accident: An Essay on Destructive Plasticity, (London: Polity Press, 2012), 14.
^[80] Ibid.
^[81] Ibid, 24.
^[82] Wright, Carpentaria, supra note 9 at 34.
^[83] Wright, The Swan Book, supra note 10 at 17.
^[84] Ibid, 34.
^[85] Ibid.
^[86] Wright, The Swan Book, supra note 10 at 1.
^[87] Ibid, 334.
^[88] See the Trevorrow Cases, supra note 19; Bringing Them Home, supra note 11.
^[89] See for example Amnesty International, “Discriminatory aspects of the NTER yet to be addressed” (Sydney, 4 February 2009) at http://www.amnesty.org.au/news/comments/20169 (last visited 15 October 2014); Intervention Rollback Action Group, “Rollback the Intervention” (Alice Springs, 2009) at http://rollbacktheintervention.wordpress.com (last visited 15 October 2014); J Anaya, “Observations on the Northern Territory Emergency Response in Australia” (2010) Report by the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. For a feminist analysis of the Intervention, and an historical contextualisation of its provisions in comparison to the earlier Aborigines Protection Acts, see Nicole Watson, “The Northern Territory Emergency Response—Has It Really Improved the Lives of Aboriginal Women and Children?” (2011) 35 Australian Feminist Law Journal 147.
^[90] Jon Altman Jon and Susie Russell, “Too much ‘Dreaming’: Evaluations of the Northern Territory National Emergency Response Intervention 2007–2012” (2012) issue 3 Evidence Base <journal.anzsog.edu.au>, ISSN 1838-9422
The Australia and New Zealand School of Government, 3.
^[91] Ibid.
^[92] Jon Altman, “Arguing the Intervention” [2013] JlIndigP 3; (2013) 14 Journal of Indigenous Policy 1, particularly at 79.
^[93] See especially Christine Black, The Land is a Source of Law: A Dialogic Encounter with an Indigenous Jurisprudence, (London: Routledge-Cavendish, 2010); John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2002); Val Napoleon, “By Whom and by What Processes Is Restorative Justice Defined and What Bias Might this Introduce?” in H Zehr & B Toews (eds) Critical Issues in Restorative Justice (New York: Criminal Justice Press, 2004) 33-45; and Val Napoleon, “Aboriginal Self Determination: Individual Self and Collective Selves” (2005) 29(2) Atlantis: A Women's Studies Journal 31–46.
^[94] See James Waldram’s chapter on “the traumatised Aboriginal” in Revenge of the Windigo: The Construction of the Mind and Mental Health of North American Aboriginal Peoples (Toronto: University of Toronto Press, 2015) at 212-236.