van Rijswijk, H --- "Interventions into the feeling of popular justice: Australia's Stolen Generations, the problem of sentimentality, and re-encountering the testimonial form" [2016] UTSLRS 40; (2016) Cultural Legal Studies Law's Popular Cultures and the Metamorphosis of Law (eds) C. Sharp and M. Leiboff 71

Last Updated: 2 June 2017

The Genre of Popular Justice: Australia’s Stolen Generations, Sentimentality and the Testimonial Form

Honni van Rijswijk

Abstract
This article considers the status of Stolen Generations’ testimonies in the Australian imaginary in 2014—their effects, frameworks and relationship to political and juridical claims—focusing on recent testimonies that have been published online as The Stolen Generations Testimonies Project. This article will consider the ways in which these testimonies have been framed and instrumentalised as part of wider state and cultural myths, which have overdetermined the ways in which they can be encountered. I will focus on understanding these testimonies as a ‘genre’ of popular justice, encountered in the sentimental register and even, in Robert Meister’s terms, through the genre of ‘melodrama’. The political and juridical claims of the testimonies are thereby significantly weakened: people encounter the testimonies in a ‘bystander’ role, rather than as responsible actors; and the time of responsibility is perceived as belonging to the past, rather than to the present. These problems are not insurmountable, but the histories of the testimonial form and of the genre of the Stolen Generations testimonies both need to be thematised in the encounter if these testimonies are to be brought out of the sentimental register and experienced as sites of political and juridical claiming. The goal is to shift the Stolen Generations testimonies from a sentimental genre to a genre of critique.

This article considers the status of Stolen Generations’ testimonies in the Australian imaginary in 2014—their effects, frameworks and relationship to political and juridical claims—focusing on recent testimonies that have been published online as The Stolen Generations Testimonies Project. The Project is funded through both state and private resources,^[1] and includes over thirty personal testimonies of survivors, with more testimonies currently being produced.^[2] On its website, the Stolen Generations’ Testimonies Foundation states that “[b]y allowing Australians to listen to the Survivors’ stories with open hearts and without judgment, the foundation hopes more people will be engaged in the healing process.”^[3] The hope of the Foundation is that the web-based project opens up multiple possibilities of encounter, and that those encounters facilitate healing and social justice. Debra Hocking, a Stolen Generations survivor, says:

There’s nothing more powerful than the personal story. For people to understand, we have to open ourselves up. It’s hard to tell our personal stories but we are doing this to educate people. For us to heal as a country these are the stories we need to share. They’re sad stories but they’re important stories ... ... For those people who do feel challenged about the ‘Stolen Generations’, we ask you to listen to just one of these testimonies to see if you still feel the same. That’s all we ask.^[4]

Australian law and politics have largely failed the Stolen Generations: courts have failed to provide an adequate avenue for the adjudication of injuries,^[5] and, despite the recommendations of Bringing Them Home, there is still no federal reparations scheme.^[6] In these contexts, testimonies by survivors of the Stolen Generations, from Link-Up in the 1980s, to this recent online project, have played an important role in making claims for extra-legal discursive justice.^[7] The potential of the testimonial form is that it offers resistance to the problematic legal and political narratives about the Stolen Generations’ experiences. Bringing Them Home did important work in documenting “the everydayness and bureaucratization of genocide and of massive human rights violations in the liberal democratic state”.^[8] In tracing the past “laws, practices and policies”^[9] that produced the Stolen Generations, it made a significant intervention into the silence of both the legal domain and the public sphere. Bringing Them Home is a didactic text—one of its main purposes was to educate the mainstream public regarding the experiences of the Stolen Generations, and the responsibilities that arose through this suffering. It was clearly aimed at eliciting empathic responses from the public in ways that were compatible with a broader narrative of healing and reconciliation. But it also made claims. Bringing Them Home found that in the relevant period, between one and three of every ten Indigenous children had been forcibly removed from their families and that this had led to ongoing physical and psychological harms.^[10] The conclusion was framed in the context of international human rights—finding that the forcible transfer of Indigenous children constituted cultural genocide under the United Nations Genocide Convention 1948 (ratified by Australia in 1949) and customary international law.^[11] The Report also recommended that a reparations scheme be adopted to deal with compensation arising from harms suffered by the Stolen Generations, and that there be a national apology.^[12]
However, alongside the potential of the testimonial form, scholars have rightly pointed out the risks of discursive discipline of both speaker and witness.^[13] Moreover, what we have seen in the Australian imaginary is an emphasis not on specific testimonies but on myths that instrumentalise specific testimonies into larger narratives. Stolen Generations’ testimonies have had the paradoxical characteristic of being essentially concerned with the expression of the particular experience of the testimonial subject, while, at the same time, they have been framed by meta-narratives that generalise these particularities. The individual testimonies actually tell multiple stories, and challenge state, legal and cultural narratives in a number of ways, but they have been framed as part of larger stories that follow much more limited paths, and which discipline the audience to respond in proscribed ways. In these contexts, the testimonies are no longer encountered as testimonies of particular experience, strictly as testimony. This latest iteration of Stolen Generations testimonies raises key questions of encounter and engagement: On what terms can testimony be a domain of critical intervention in legal and political problems? Can the testimonial form itself offer a way out of, or through, problematic meta-narratives of reconciliation, redemption and apology, which have worked to close down juridical and political demands? Given the history of Stolen Generations testimonies, and the nature of contemporary social and political imaginaries, can the hopes of the Stolen Generations Testimonies Board—and especially of those giving the testimonies themselves—be realized?
This article will consider the ways in which stolen generations’ testimonies have been framed and instrumentalised as part of wider state and cultural myths, which have overdetermined the ways in which they can be encountered. I will focus on understanding these testimonies as a “genre” of popular justice. The examination of testimonies as a genre opens up lines of enquiry about the nature and consequences of popular engagement. I will argue that these testimonies are encountered as a sentimental genre and even, in Robert Meister’s terms, through the genre of “melodrama”.^[14] The political and juridical claims of the testimonies are thereby significantly weakened: people encounter the testimonies in a “bystander” role, rather than as responsible actors;^[15] and the time of responsibility is perceived as belonging to the past, rather than to the present. These problems are not insurmountable, but the histories of the testimonial form and of the genre of the Stolen Generations testimonies both need to be thematised in the encounter—brought explicitly to the mind of people watching and listening to the testimonies—if these testimonies are to be brought out of the sentimental register and experienced as sites of political and juridical claiming. Contemporary audiences need to become self-conscious about how they encounter these testimonies, and to engage critically with the framing narratives used: the focus is to shift the Stolen Generations testimonies from a sentimental genre to a genre of critique.

The significance of genre

This problem of political or legal engagement being turned into affective experience, crossing from the domain of politics into a literary or affective register, can be thought of as a problem of genre. We are living at a time in which failures to properly read genre are having significant and damaging effects on the possibilities of justice and politics. In his book After Evil: A Politics of Human Rights, ^[16] Robert Meister provides a critique of transitional justice, based on an understanding of transitional justice as comprising processes with which participants engage aesthetically and affectively. Meister argues that transitional justice should be understood as a genre in which participants engage as an audience (rather than, say, as a political process with which participants engage as political beings). In his reading, transitional justice belongs to a wider, historically specific discourse that he terms Human Rights Discourse. The power in this argument lies in its analysis of the vesting of authority: Meister argues that participants in human rights discourses are vested with authority essentially through encounters of readership, which means that these discourses are not only eliciting a certain kind of substantive response, but a particular mode of response—they turn politics into an affective, even sentimental, endeavour. For Meister, this form of encounter is part of a wider historical process in which the political domain of action has been undermined—the effect of a turn to a certain kind of self-focused ethics, which tends to produce sentimentality.^[17] This turn, based on sentimental identification, does not necessarily serve social justice goals, and can in fact block the achievement of social justice (while at the same time disguising this fact). Similar arguments to Meister’s were made earlier specifically in response to the Stolen Generations. Roseanne Kennedy argues that a didactic training of the Australian public began with the Council for Reconciliation, and continued through the inquiry into the separation of children by the federal Human Rights and Equal Opportunity Commission (HREOC), and its subsequent report, Bringing Them Home,^[18] as well as through the activities of the National Sorry Day Committee.^[19] Roseanne Kennedy writes of the Sorry Books Campaign of the late 1990s, as “a popular reconciliation movement”.^[20] She argues that, far from Australians’ responses of personal apology being spontaneous or “intuitive,” the Sorry Books were the effect of a didactic movement that “educated” ordinary Australians on their moral obligation to respond—and on the forms their response should take.^[21] Kennedy compares this response to what Lauren Berlant has written about, in the context of the United States, as “a popular belief in national sentimentality, a rhetoric of promise that a nation can be built across fields of social difference through channels of affective identification and empathy”.^[22] Berlant argues that sentimentality:

... is the means by which mass subaltern pain is advanced in the dominant public sphere, as the true core of national collectivity. It operates when the pain of intimate others blurs into the consciousness of classically privileged national subjects, in such a fashion that they feel the pain of flawed or denied citizenship as their pain.^[23]

A certain affect or empathy is felt, without the experience of the material conditions that cause the pain. Bringing Them Home was the medium through which testimonies of suffering circulated, prompting their audience to identify empathically with that suffering.^[24] Encountered in this way, the testimonies became a form of nation-building that has little to do with the material experiences of suffering, past or present.^[25]

These observations are helpful in thinking through the Apology made in 2008, and how testimonies should be encountered following the Apology.^[26] At the same time that Stolen Generations testimonies have been part of important projects to address the gaps and refusals of law and public life—especially the absences in early cases such as Cubillo, and Prime Minister Howard’s refusal to apologise—the testimonies have also been instrumentalised by narratives that are unhelpful to achieving justice for the Stolen Generations. Prime Minister Rudd’s Apology provided a powerful “lesson” from state to public in how to interpret the Stolen Generations experience. The Apology included the testimony of a member of the Stolen Generations in ways that corresponded with the framework of Reconciliation, and which used this experience in ways that fit into the sentimental narrative, encouraging the audience to respond to the Apology in particular ways.

The Prime Minister at the time of Bringing Them Home, John Howard, refused to apologise to the Stolen Generations, on the basis that “Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control.”^[27] But Rudd’s subsequent apology only went so far – it did not acknowledge the full degree of the damage caused by removal policies to individuals and to indigenous communities through the destruction of Aboriginal cultural identity and language. And Rudd did not commit to a federal reparations or compensation scheme, as had been recommended by Bringing Them Home. This was the moment when a federal reparations scheme should have been implemented. Instead, the Apology emphasized the “discursive justice” aspect of responses to the Stolen Generations, and implied that the state’s apology signified a closure of the past injustices, and a shift to a focus on the future.^[28] Rudd’s apology speaks of a future that “embraces all Australians.” It pretends that indigenous and non-indigenous Australians hold equal positions with respect to both the past and the future. It was given at a time in which the Northern Territory Intervention was continuing, a point that will be covered later. In his apology, Rudd drew on a specific testimony.

Stating that Nanna Nungala Fejo's story was one of many thousands of stories of forced separation, Rudd asserted that indigenous suffering grounded the need for a response:

There is something terribly primal about these firsthand accounts. The pain is searing; it screams from the pages. The hurt, the humiliation, the degradation and the sheer brutality of the act of physically separating a mother from her children is a deep assault on our senses and on our most elemental humanity. ... These stories cry out to be heard; they cry out for an apology. Instead, from the nation's parliament there has been a stony and stubborn and deafening silence for more than a decade.^[29]

Rudd then proceeded to tell the story of Nanna Nungala Fejo, who was born in the late 1920s. Rudd recounted that Nanna Fejo recalls her earliest childhood days living with her family and her community in a bush camp just outside Tennant Creek. She remembers the love and the warmth and the kinship of those days long ago, including traditional dancing around the camp fire at night. Rudd stated:

But then, sometime around 1932, when she was about four, she remembers the coming of the welfare men. Her family had feared that day and had dug holes in the creek bank where the children could run and hide. What they had not expected was that the white welfare men did not come alone. They brought a truck, two white men and an Aboriginal stockman on horseback cracking his stockwhip. The kids were found; they ran for their mothers, screaming, but they could not get away. They were herded and piled onto the back of the truck. Tears flowing, her mum tried clinging to the sides of the truck as her children were taken away to the Bungalow in Alice, all in the name of protection.^[30]

Prime Minister Rudd recounts: “She stayed at the mission until after the war, when she was allowed to leave for a prearranged job as a domestic in Darwin. She was 16. Nanna Fejo never saw her mum again. After she left the mission, her brother let her know that her mum had died years before, a broken woman fretting for the children that had literally been ripped away from her.”^[31] Rudd says: “As I left, later on, Nanna Fejo took one of my staff aside, wanting to make sure that I was not too hard on the Aboriginal stockman who had hunted those kids down all those years ago. The stockman had found her again decades later, this time himself to say, ‘Sorry.’ And remarkably, extraordinarily, she had forgiven him.” In this recounting, Nanna Fejo’s particular experience becomes an allegory for the Reconciliation of the nation—all losses are remedied by the return to family, all losses are now in the past, and most important, there has been forgiveness. The stockman’s apology is graciously accepted, anticipating and modelling the response that Rudd hopes for his own, “national” Apology. This is a familiar pattern in the shaping of testimonies—writing of Bringing Them Home, Orford argues that the Report’s “narrative moves from a sense of boundaries transgressed through official and private acts of desire, violence, love, and sacrifice, and of a resulting network of obligations between the inhabitants of the nation, towards a vision of stable families in which all are sorted back into their proper places and all debts are paid”.^[32] She notes that “many people do not find themselves at home in their newly recovered identity or community” and as a result, “the text is haunted by the stories of children who cannot go home”.^[33] However, she contends that “in the overall movement of the report and the focus of its recommendations, there is little attention paid to the implications of the many testimonies to the impossibility of recovering that which has been lost as a result of these genocidal practices and of colonialism in general”. ^[34] In the Apology, these losses are also ignored—but the move is more extreme, too, as the testimonies of these unresolved losses are not included. The testimony is placed within an account of past injustice and violence in ways that put this violence firmly in the past, make a break with it, and then look to the future. The apology opens a number of clauses with reference to “a future,” and makes a number of statements that gesture towards the closing of the past, symbolically, with the apology. Rudd says: “The time has now come for the nation to turn a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future.” By “righting the wrongs of the past,” Rudd refers to the apology itself—a discursive response that is not supported by a reparations scheme, as proposed by the recommendations of the 1997 Report. Rudd goes on to say that a “new page in the history of our great continent can now be written,” a future in which “all Australians” determine to “close the gap” between Indigenous and non-Indigenous Australians, a future based on “mutual responsibility.” “Doing justice” means empathising, apologising, and insisting on the future—with “closing the gap” now being the Government’s official policy^[35].

People have lost the literacies of properly reading politics, and legal relations, breaking the laws of genre—political relations have become sentimental discourses, and fantasies. The stolen generations figure in the public imaginary largely in an affective register, rather than in a political or juridical register. This is to mistake the nature of responsibilities that arise from past and present suffering. Demands made in clear political and juridical registers were made through the text and tone of claiming in the Redfern Speech;^[36] but these registers have largely fallen away. In his book The Beast and the Sovereign, Derrida writes of the dangerous consequences of category misrecognition:

... in the prevalent or hegemonic tradition of the political, a political discourse, and above all a political action, should in no case come under the category of the fabular, of that type of simulacrum called fabular ... For, as its Latin name indicates, a fable is always and before all else speech—for, fari, is to speak, to say, to celebrate... fabula is first of all something said, a familiar piece of speech, a conversation, and then a mythical narrative without historical knowledge ...in any case a fiction that claims to teach us something ... a pretend knowing, a false knowing, a simulacrum of knowing, a mask of knowing ...^[37]

And so, Derrida asks, what happens at these moments of failure to read properly, in which politics is “constituted or even instituted by something fabular ... by that fictive modality of ‘storytelling’?”^[38] He replies that the effects are devastating, and go beyond “discursive operations” to “determine the political actions, military operations, killings, so-called acts of war or of terrorism ...”^[39]

The problem with law’s relation to harm is that not only do we with live with troubling myths, but we also have a troubled relation to those myths. We live within an ideological structure that Derrida described as an “empire of the fable”^[40]—where politics and laws are animated by specific imaginaries, but where these processes are disguised, along with their animating powers. These representational habits have produced the “becoming-fabulous of political action and discourse.”^[41] One effect is that “Death and suffering, which are not fabular, are yet carried off and inscribed in the affabulatory score.”^[42]

This problem has a long intellectual and political history, and is part of our inheritance from Enlightenment thought on law and politcs. Victoria Kahn argues that a “literary contract” underlies, and may be more important than, the “political contracts” that seem more apparent.^[43] In her reading of Hobbes and seventeenth-century legal philosophy, Kahn argues that the introduction to Leviathan tries to “to set up a contract with the reader specifying the protocols for interpreting Leviathan.”^[44] She says, “In the introduction to Leviathan, Hobbes made it clear that consent to the political contract depended on consent to a literary contract: a prior agreement about the dangers of romance, the limits of metaphor, and the right construction of analogy.”^[45] Understanding the political contract relied on a certain aesthetic and affective experience. The readers of Leviathan were being interpellated as political subjects and as literary subjects—but this relation was disguised. We are still part of this historical and disciplinary arc, and consequently, we are not properly aware of the ways in which political (and legal) relations are partly determined by aesthetic relations.^[46] Enlightenment projects of philosophy and political thought were also connected to projects of colonisation—sharing imaginaries and logics, animating the ways in which “the other” was encountered, and these imbrications continue to be important to understanding encounters with Stolen Generations’ testimonies.

The consequences of misreading genre
Significantly, the sentimental genre disciplines the audience into a particular mode of response: these archives are experienced as “scenes of suffering” rather than as “scenes of injustice”,^[47] thereby foreclosing legal and political interventions. The particular genre of transitional justice, Meister argues, is the “melodrama.”^[48] The primary mode of engagement through the melodrama is affective, encouraging beneficiaries to feel, “to pity victims without fearing them.”^[49] Wendy Brown observes that “human rights take their shape as a moral discourse centered on pain.” ^[50] Meister says, “[e]voking physical pain as the clearest form of social injury thus becomes an ideological means to force closure on social grievance by allowing those whose pain has stopped to stand in for all who still suffer the consequences of an injustice that is past.”^[51] According to Meister, pain can be made “readable” in a variety of genres, including melodrama, or even pornography.^[52] Making pain readable melodramatically protects beneficiaries by “neutralizing” the threat posed by victims: “the victim’s grief is now disconnected from their sense of grievance.”^[53]

Meister argues that previously, when human rights registered in the political domain, the dominant narrative was that of a struggle for justice against perpetrators, with the idea that this fight would continue until the perpetrators were vanquished.^[54] But in the Human Rights Discourse, justice is paired with reconciliation rather than combat, and the figure of the perpetrator is overshadowed by that of the beneficiary.^[55] The melodrama’s key figures are victims, who are “good,” perpetrators, who are “bad,” and the audience, which is assumed to be comprised of “beneficiaries”. The role of the audience is to feel, and to feel that what they are feeling is right, without being confronted in any significant way (such as by experiencing a sense of complicity in an act of injustice).^[56]

It is neither the victim nor the perpetrator but rather the beneficiary who becomes the key figure addressed and interpellated through the melodrama. Meister asks:

Who reads social melodrama, and why? Social melodrama is not written in the voice of the victim crying out against the oppressor and is not generally addressed to victims of the suffering portrayed. Instead, it is meant to be read by people who may want to feel bad about the conditions described but who would feel highly uncomfortable if the victim were portrayed as blaming them. In social melodrama the victim is always constructed as innocent (morally undamaged by suffering) so that the melodrama’s audience, which is likely to include beneficiaries of such suffering, can understand themselves as bystanders who are capable of feeling compassion without fear.”^[57]

Reconciliation is aimed at ending violence, rather than encouraging a struggle for justice, and the reconciliation narrative has the effect of aligning beneficiaries with the role of bystander rather than perpetrator, leaving beneficiaries with their benefits, and distancing them from responsibility for the past.^[58] These aesthetics produce the Australian nation as a community of bystanders and beneficiaries regarding the harms of the past, with non-indigenous Australians interpellated into relationship with indigenous Australians through their demonstrations of bystander compassion, rather than through responsible and responsive action: the “real aim” of Human Rights Discourse may be “to reassure the compassionate witness of his own redemption.”^[59]

The genre also determines the temporality of the justice offered. Meister argues that the logic of the melodrama is one of “buying more time”^[60] for beneficiaries, buying more time for them “after evil” but “before justice.” Melodrama buys more time for beneficiaries by allowing them “to pity victims without fearing them.”^[61] In the Australian context, the narrative arc of the removal of indigenous children ends in reconciliation and closure, with the painful effects, along with responsibility, located in the past. Orford contends that transitional justice processes such as Bringing Them Home are “centrally concerned with temporality” and how this temporality relates to questions of responsibility.^[62] Bringing Them Home’s narrative of tracing a journey home, suggesting that all journeys and losses return to the same place, imposes closure on a process that necessarily cannot (and should not) be closed.^[63] This temporality is reinforced through the emphasis upon the figure of the child in stolen generations narratives: the suffering is perceived to attach to the child who suffered in the past, whose experiences are foregrounded at the expense of the adult who suffers in the present.

Reading against the grain of sentimentality

Sentimental readers experience a certain kind of authority when encountering archives of transitional justice—an authority which obscures the political and juridical claims of these archives, and vests the reader with perceived moral benefits. Each reading experience further reinforces this authority, strengthening the reader’s position as both beneficiary and bystander. In order to intervene in these processes, Joseph Slaughter calls for “a full sentimental education in human rights literacy.”^[64] This education demands training in awareness around the effects of genre, and of category misrecognition. It would involve an understanding of the different claims of affect, politics and law. It would involve “unlearning the self-congratulatory sense of benevolence (or noblesse oblige) that seem naturally to attend ... reading acts of recognition.”^[65]. In particular, this practice would foreground the role of the reader as beneficiary of social, political and economic domains,”^[66] and the ways in which particular reading experiences reinforce, rather than challenge this position.

The claim is that more attention needs to be paid to the literary contract and the engagement we make as readers, politically and ethically, in our engagement with legal and philosophical processes. More specifically, the claim is that we need to pay close attention to genre, and the ways in which aesthetic projects interpellate us as readers. This education can be received through encounters with certain exemplary texts, which position the reader very differently from the positioning of the sentimental genre. The undoing and re-writing of literary and affective contracts are key projects of literary modernism and postmodernism. We might describe literary and critical theory modernisms as interventions into the representational practices of modernity—thematising representation, and the ways in which practices of representation produce realities, laws, violence, and justice. We might describe this facet of modernism as being a history and critique of the disciplines—it provides a way to cut through sentimentality, of drawing attention to practices of representation, of drawing the reader into an experience of discord and disorientation.^[67] Mark Antaki argues that the work of Meister and Slaughter raises the possibility that some genres “demand to be critiqued” whereas others, he says are themselves “critical”: “the former genres reflect and enact fantasies – of sovereignty and mastery over future, of access to the interiority of self and others – whereas the latter call the fantasies into question and may therefore invite an experience of affective dissonance.”^[68] The goal is to shift the Stolen Generations testimonies from a genre of sentiment to a genre of critique.

These effects can be achieved by encountering existing texts in new ways. In the context of stolen generations testimonies, this involves bringing out the evidence of state practices, of structural and systemic racism; to focus on those aspects of testimonies that describe the creation of documentary archives and the pursuit of policies that were designed to assimilate Indigenous subjects. The work of scholars such as Meister, Kennedy, Luker, Antaki and Orford is one of diagnosis, which demands new literacies of scholarly and public engagement, namely literacies in genre and form, as well as an understanding of the ways in which these forms ultimately determine questions of politics and justice. This is a productive way of thinking through the ways in which, since Bringing Them Home, certain HREOC recommendations have been taken up politically and in the public sphere, (such as the National Apology, and discourses of healing), while other, more political and rights-based approaches have fallen away (such as a national reparations scheme and human rights-based discourses).^[69] The problem of sentimental reading is thereby turned back productively against itself—through a reading against its grain.

This work suggests that a significant role can be played by extra-legal projects such as The Stolen Generations Testimonies website, in providing encounters that encourage these new literacies. I would like to outline here a number of ways in which the online testimonies could encourage encounters not only with the testimonies themselves, but with the history of the Stolen Generations meta-narratives and myths that have arisen through and around the testimonies. These layered encounters could provide an understanding of the history and politics of the framing narratives within which testimonies have been received, and perhaps, also, the conscious development of new meta-narratives as a strategy of intervention—meta-narratives that thematise the relationship of oral testimony to the states’ documentary archives, and which bring out the roles that state archives have played in the historical and contemporary lives of indigenous people.

There is a need to bring out and emphasise narratives within the testimonies that speak to the significance of oral testimony as against the historical privileging of the documentary record, and which relate to the role of the state archive in indigenous people’s lives. The framing narratives in Bringing Them Home focus on the scene of removal, whose significance depends upon subsequent legal or social recognition. Orford argues that the Report’s “narrative moves from a sense of boundaries transgressed through official and private acts of desire, violence, love, and sacrifice, and of a resulting network of obligations between the inhabitants of the nation, towards a vision of stable families in which all are sorted back into their proper places and all debts are paid”.^[70] This has the effect of separating the event from its ongoing context, and creates a false distance between removal and the wider policies of past and present. But policies regarding the Stolen Generations are better understood as a series of ongoing practices.^[71] Narratives of the continuing rupture of indigenous lives are important—narratives that show the ways in which this suffering is not ‘historical’ for those who have survived, but present-day, and interrelated with current structural racism and gendered harms. Narratives of encounter with the government file, and the life of the file in the lives of indigenous survivors, are also important. These narratives tell the story of state power, state coercion and duplicity, and the importance of testimony in the face of the documentary record. They tell of the agency of the documentary record and its ‘doubly wicked’ effects: first, the role of the record in falsely documenting neglect or consent as the occasion for removal, and then subsequently at the moment of judgment in the courts, creating a barrier to challenging the reasons for removal.^[72]

The online project includes a number of testimonies that can do this work—which speak to the role of the government record, and which can be further brought out and thematised through new framing narratives. The online project documents the fact that mothers often wrote to the authorities to beg for the return of their children, but these letters were ignored or responded to with threats. Lester Maher,^[73] Vince Wenberg^[74] and Gus Wenberg^[75] all speak of finding letters in their files, from their mothers, fathers and grandparents, begging for the return of the children. After her children were taken, Debra Hocking’s mother Jean wrote again and again to ask for them to be returned:^[76]

Dear sir, I am writing once again for you to consider letting me have my babies. Please sir if there’s anything else I have to do to prove myself could you tell me what it is. I’m just waiting to give my whole life in making up to my babies for the past but sir the waiting is almost unbearable. I have paid dearly for my mistakes a hundred times over by being parted from my children. ...

Jean Hocking’s letter had no effect.

In her online testimony, Debra Hocking recounts 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:

I look at my Government file and look at how it all happened and how tragic it must’ve been for her 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.”

Hocking’s mother Jean tried to raise her family under constant monitoring, and amidst threats of the children being taken away:

My older sister said, she said ‘Oh it was just awful,’ because, you know, there’d be—they had to keep all the curtains open and the minute they saw a car pull up, you know, she said she’d run around and she’d try and make sure that everything—there was always something that she hadn’t done. She was so scared because she knew they found anything, anything –a box of matches in the wrong place. ‘What happens if the kids get hold of them?! You know Jean. You’ve been told about this. You know you’ve got to put that away. You know you’ve got to have more food in your cupboard. Otherwise we’re going to have to take your children you know.’
Poor Jean. There she was. Poor old mum, you know, running around. Making sure everything was alright.

The experiences and policies behind the Stolen Generations, and the ways in which government and social policies have determined what counts as history, are important questions of social justice. A significant source of trouble has been what counts as the evidence upon which the past is judged. The removal policies generated their own documentary trail, often found to be problematic, and which is contradicted by the oral testimony of a number of survivors and their families.^[77] There is a way in which the government’s documentary archives have generated their own force, their own law, their own version of the truth, and this in turn has put harmful stories into circulation. These stories are taken up by the law, which not only judges claimants negatively against these stories, but in turn puts into the public sphere an understanding of the Stolen Generations, and what happened. The documentary archive is a force that survivors of the Stolen Generations have had to deal with, and these testimonies not only counter the force of the documentary archive through the presence of oral testimonies’ counter-narratives in the public sphere, but they also provide moments of counter-force in their narration of encounters with the documentary record. These moments re-situate the documentary archive, and counter the tendency for the documentary record to be necessarily privileged.

Temporality and responsibility

The temporality of the encounter with these testimonies also need to be foregrounded. The framing narratives of stolen generations’ experiences need to do more to connect these practices with ongoing, contemporary political and legal relations. These testimonies need to be connected to questions of Indigenous sovereignty, and Indigenous law, since the project of assimilation was very much directed at annihiliating indigenous sovereignty and law—projects that continue. Also, in a very deep sense, the removals constitute breaches of Indigenous sovereignty and laws.

The Stolen Generations testimonies have a different meaning in 2014 from what they held before 2008, which saw the Apology and the failure of the Commonwealth government to institute a federal reparations scheme,^[78] as well as the Labor government’s continuation of the Northern Territory National Emergency Response Intervention. ^[79] The limitations of the courts’ abilities to adjudicate this violence are also clear in 2014: courts have not become a significant site for the adjudication of injuries arising out of the Stolen Generations—despite the success of Trevorrow in 2010, Trevorrow is a case that still relies on a difficult narrative of parental consent and the existence of a state file that supported the plaintiff’s arguments; the presence of this file is particularly significant. Together, Cubillo and Trevorrow indicate both that the state archive is precarious and that its precarity is easily contained: despite the court’s critical reading practice regarding the documentary record in Trevorrow, the law has not yet preferred oral testimony to the documentary record.

Framing narratives need to read these testimonies in the context of the Northern Territory Intervention. The Intervention was implemented in 2007 through a set of laws that permitted the seizure of local community land leases by the federal 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 Labor Government.^[80] The occasion for the Intervention was the publication of the Little Children are Sacred Report (2007),^[81] which followed an Inquiry commissioned by the Territory’s Inquiries Act. 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.”^[82] The subsequent report did not express the problem as an “emergency,” but it did find that child sexual abuse was an issue that required urgent action. A number of earlier reports had also documented child abuse and violence against women as being significant problems in indigenous communities in the Northern Territory—communities that were also dealing with poverty, poor health, alcoholism and racism.^[83] However, the Northern Territory Intervention and 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 Inquiry’s 97 recommendations included an emphasis on community consultation, family support services, education, employment and housing but most of these recommendations were not implemented in the subsequent legislation. The Intervention has been the subject of criticism from a number of human rights organisations, including the United Nations.^[84] It is also worth noting that levels of the sexual abuse of children are in fact higher in several 
other Australian jurisdictions than in the Northern Territory.^[85] In Little Children Are Sacred, there is an eerie but repressed evocation of the state’s actions that brought so much pain to indigenous communities through their removal of children, documented ten years earlier in Bringing Them Home. The Intervention policies that make living conditions more difficult for indigenous people, are supported by a narrative of harm-prevention, of protecting Indigenous people from themselves—fables that resonate with the policies documented in Bringing Them Home, but which are not connected in the public imaginary.

In their recent, detailed analysis of the Intervention, Jon Altman and Susie Russell note that “it is impossible to say” whether the results of the Intervention have been positive, negative or mixed.^[86] They argue that “the Intervention had no foundational, evidence-based policy logic, and no baseline against which to measure improvements,”^[87] and that, despite “extraordinary levels of monitoring, review and evaluation ... the absence of an overarching evaluation strategy has resulted in a fragmented and confused approach.”^[88] In fact, they conclude that the evaluations of the Intervention themselves seem to act as another state technique for the administration of Aboriginal people.^[89] As Irene Watson argues, past and present violence against Aboriginal people has been read as “beneficial,” as acts of “saving them from themselves”.^[90] We therefore need techniques to become aware of the particularity of state law’s assertions of authority, of its ever-changing and mobile strategies. One way of fulfilling this responsibility and responsiveness is through the development of critical reading practices that focus on the role of the representation of violence in the production of sovereignties and legalities.

The responsibility here is to re-animate legal and state archives, to parse the legal and state imaginaries, and to re-imagine, even re-script meta-narratives of responsibility and politics. The duty is to use a careful imagination to parse out the legal and political from the underlying myths and aesthetics, to understand, and to teach reading practice. In the case of the stolen generations testimonies, this would mean a project of bringing the testimonies in conversation with, and in confrontation with, the documentary government archive, to produce a meta-narrative of responsibility and accountability that is present-time and continuing. The task is to re-train public sensibilities and reading practices to change the nature of the encounter, and embed testimonies in counter-narratives that thematise not only the stories of removal and its effects, but the history and politics of the testimonial form itself—and its capture into grand, sentimental national narratives. The task would be to bring out narratives in the archive beyond the scenes of child removal, to emphasise narratives of encounter with the government file, and the life of the file in the lives of indigenous survivors. Read this way, the testimonies reveal contemporary politics and relations to social justice projects, rather than being relegated to questions of the past.

Testimonies have been captured as part of state archival practices, but they can be recovered and reclaimed through certain practices and encounters. This paper has outlined the ethics and politics of such an encounter, describing ways to promote awareness of form and temporality that are important in drawing attention to the politics of testimony, and its significant role in the justice that has been provided to survivors of the Stolen Generations. This critical intervention arises through the deployment of reading and interpretive techniques that draw attention to the ways in which the Stolen Generations testimonies have interpellated non-indigenous subjects into positions of non-responsibility. The goal is to find ways of framing and re-framing the testimonies, of drawing attention to the means of production of testimonies, as well as to the experience of encountering them. These techniques seek to provide a way to re-make ethical and aesthetic relations into modes of political encounter, and to develop those relations so that they promote the goal of social justice.

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^[1] The project is an initiative of the Stolen Generations Foundation, which acknowledges the support of Department of Families, Housing, Community Services and Indigenous Affairs, the Hunt Foundation and the Rio Tinto Aboriginal Foundation.
^[2] www.stolengenerationstestimonies.com.
^[3] http://stolengenerationstestimonies.com/index.php/about_stolen_generations.html.
^[4] As above.
^[5] The Federal Court denied claims for compensation in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, and 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. See van Rijswijk, H.M., Anthony, T. 2012, “Can Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010)” in Melbourne University Law Review 36(2), pp. 618-655.
^[6] Commonwealth of Australia 1997 Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families Commonwealth of Australia Sydney (hereafter referred to as ‘Bringing Them Home’).
^[7] For a detailed history of what Bain Attwood calls the Stolen Generations Narrative, which he argues arose through the various institutional settings that produced testimonies, see Attwood B, 2008, “In the Age of Testimony: The Stolen Generations Narrative, ‘Distance,’ and Public History, Public Culture 20:1, pp75-95.
^[8] Orford A, 2006, “Commissioning the Truth”, Columbia Journal of Gender and Law, 15: 851- 883.
^[9] Bringing Them Home, p3.
^[10] Bringing Them Home, 308-09.
^[11] As above.
^[12] As above.
^[13] See for example Bain Attwood, above; Anne Orford, ‘Commissioning the Truth’, above; Haebich, A 2000, Broken Circles: Fragmenting Indigenous Families, 1800 – 2000 (Perth: Fremantle Arts Centre Press; Kennedy R, Bell L and Emberley J 2009, “Decolonising testimony: on the possibilities and limits of witnessing” xv Humanities Research 1; Kennedy R 2008, “Subversive Witnessing: Mediating Indigenous Testimony in Australian Cultural and Legal Institutions,” 36 Women’s Studies Quarterly 58.
^[14] Meister R 2011, After Evil: A Politics of Human Rights, New York: Columbia University Press, 63-64.
^[15] As above.
^[16] Meister R 2011, After Evil: A Politics of Human Rights, New York: Columbia University Press.
^[17] Meister, After Evil: see especially the Preface, and Chapter 1.
^[18] Bringing Them Home.
^[19] Kennedy R 2011, “An Australian Archive of Feelings” 26:69 Australian Feminist Studies 257, 270.
^[20] As above, 257.
^[21] As above, 265.
^[22] Berlant L 2000 “The Subject of True Feeling: Privacy, Pain and Politics” Cultural Studies and Political Theory, ed. Jodi Dean (Ithaca, NY: Cornell University Press), 128.
^[23] As above, 129.
^[24] Kennedy, ‘An Australian Archive of Feelings’, 259.
^[25] See also Luker T 2005 “Postcolonising’ Amnesia in the Discourse of Reconciliation: The Void in the Law’s Response to the Stolen Generations” 22 Australian Feminist Law Journal 67.
^[26] Rudd K 2008 “Apology to Australia’s Indigenous People” 13 February 2008. Available online at http://www.dfat.gov.au/indigenous/apology-to-stolen-generations/rudd_speech.html.

^[27] Howard J “Practical Reconciliation” in Michelle Grattan (ed), Reconciliation: Essays onAustralian Reconciliation, Black Inc., 90.
^[28] Rudd K 2008 “Apology to Australia’s Indigenous People” 13 February 2008. Available online at http://www.dfat.gov.au/indigenous/apology-to-stolen-generations/rudd_speech.html
^[29] As above.
^[30] As above.
^[31] Above.
^[32] Orford, “Commissioning the Truth,” 870-871.
^[33] Orford, “Commissioning the Truth,” 871.
^[34] Orford, “Commissioning the Truth,” 872.
^[35] See Coag’s National Indigenous Reform Agreement, which commits the Commonwealth and states to reforms.[]
^[36] Keating, Paul. (1992). Redfern Speech. ANTaR – Australians for Native Title and Reconciliation. Accessed June 20 2014. https://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf. []
^[37] Derrida, J 2009 The Beast and the Sovereign University of Chicago Press, Chicago, p35.
^[38] As above.
^[39] As above.
^[40] As above, p5.
^[41] As above, p36.
^[42] As Above.
^[43] Kahn V 2004, Wayward Contracts: The Crisis of Political Obligation in England, 1640-174 (Princeton : Princeton University Press), p18.
^[44] Kahn V 2004, Wayward Contracts: The Crisis of Political Obligation in England, 1640-174 (Princeton : Princeton University Press) p149.
^[45] Kahn, Wayward Contracts, p18.
^[46] Kahn, Wayward Contracts, p 21.
^[47] Kennedy, “An Australian Archive of Feelings:, p 270.
^[48] Meister, After Evil at 70.
^[49] Meister, After Evil at 70.
^[50] Brown W 2004, “The Most we can hope for...’: Human Rights and the Politics of Fatalism” 103 South Atlantic Quarterly 451 at 453.
^[51] Meister, After Evil at 65.
^[52] Meister, After Evil at 66-67.
^[53] Meister, After Evil at 70.
^[54] Meister, After Evil pp8-30.
^[55] Meister, After Evil at 23.
^[56] Meister, After Evil at 70.
^[57] Meister, After Evil at 63-64.
^[58] Meister, After Evil at 25.
^[59] Meister, After Evil at 78.
^[60] Meister, After Evil at 13.
^[61] Meister, After Evil at 70.
^[62] Orford, “Commissioning the Truth,” 880, emphasis mine.
^[63] Orford, “Commissioning the Truth,” 883.
^[64] Slaughter J 2007, Human Rights Inc: The World Novel, Narrative Form and International Law (Fordham University Press, New York) at 326.
^[65] Slaughter, Human Rights Inc. at 326.
^[66] Slaughter, Human Rights Inc. at 326-327.
^[67] Certain postcolonial texts can be helpful here. Cite forthcoming AFLJ article. []
^[68] Antaki M “Genre, Sentiment and Human Rights Critique” p3. [need to check use of this draft with Antaki].

^[69] See Bringing Them Home pp308-309.
^[70] Orford, ‘Commissioning the Truth,’ 870-871.
^[71] see Anne Orford, ‘Commissioning the Truth’; Anna Haebich, Broken Circles: Fragmenting Indigenous Families, 1800 – 2000 (Perth: Fremantle Arts Centre Press, 2000).
^[72] See van Rijswijk, H.M., Anthony, T. 2012, ‘Can Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010),’ 36 no 2 Melbourne University Law Review (2012): 618-655.
^[73] http://stolengenerationstestimonies.com/index.php/testimonies/983.html
^[74] http://stolengenerationstestimonies.com/testimonies/1000.html
^[75] http://stolengenerationstestimonies.com/index.php/testimonies/999.html
^[76] http://stolengenerationstestimonies.com/index.php/testimonies/973.html
^[77] See van Rijswijk, H.M., Anthony, T. 2012, “Can Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010)” in Melbourne University Law Review 36(2), pp. 618-655; 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.
^[78] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 167 (Kevin Rudd, Prime Minister). Rudd’s apology only went so far—it did not acknowledge the full degree of the damage caused by removal policies to individuals and to Indigenous communities through the destruction of Aboriginal cultural identity and language; and Rudd did not commit to a federal reparations or compensation scheme, as had been recommended by the Bringing Them Home report. Instead, the Apology emphasized the ‘discursive justice’ aspect of responses to the Stolen Generations, and implied that the state’s apology signified a closure of the past injustices, and a shift to a focus on the future. See eg John Frow, ‘Discursive Justice’ 100 (2), The South Atlantic Quarterly, (2001):331-348.Alexander Reilly, ‘How Sorry Are We? The limits of the Apology to the Stolen Generation’ (2009) 34 Alternative Law Journal 97; Nayanika Mookherjee et al, ‘The Ethics of Apology: a Set of Commentaries,’ 29 no 3 Critique of Anthropology: 345-366.
^[79] Northern Territory National Emergency Response Act 2007 (Cth) No. 129 (NTNERA); Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) No. 128; Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) No. 130’ Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern 
Territory National Emergency Response and Other Measures) Act 2007 (Cth) No. 128; Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007 (Cth) No. 126 and 
Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007 (Cth) No. 127. I use the phrase ‘the Northern Territory Intervention’ or ‘the Intervention’ to refer to this regime.
^[80] 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.
^[81] Wild R and Anderson P Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Child Sexual Abuse Northern Territory Government Darwin 2007.
^[82] As above at 4.
^[83] Cunneen C and Libesman T 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 (2006) HREOC Sydney; NSW Aboriginal Child Sexual Assault Taskforce Breaking the Silence: Creating the Future, Addressing Child Sexual Assault in Aboriginal Communities in NSW (2006) NSW Premier’s Department NSW; Queensland Crime Commission and Queensland Police Service Child Sexual Abuse in Queensland: The Nature and Extent: Volume 1. Project Axis (2000) Brisbane; Gordon S Hallahan K and Henry D Putting the Picture Together, Inquiry into the Response by Government Agencies into Complaints of Family Violence and Child Abuse in Aboriginal Communities (2002) Department of the Premier and Cabinet Western Australia.
^[84] 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 April 2014); Intervention Rollback Action Group, ‘Rollback the Intervention’ (Alice Springs, 2009) at http://rollbacktheintervention.wordpress.com (last visited 15 April 2014); Anaya J ‘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 Watson Nicole ‘The Northern Territory Emergency Response—Has It Really Improved the Lives of Aboriginal Women and Children?’ (2011) 35 Australian Feminist Law Journal 147.
^[85] See Australian Institute for Health and Welfare, Australia’s Health, No. 10 (2006) Government Printer Canberra, cited in Manderson Desmond ‘Not Yet: Aboriginal People and the deferral of the Rule of Law’ ARENA Journal (2008) no. 29/30 222 at 224.
^[86] Altman J and Russell S 2012, “Too much ‘Dreaming’: Evaluations of the Northern Territory National Emergency Response Intervention 2007–2012” issue 3 Evidence Base <journal.anzsog.edu.au>, ISSN 1838-9422
The Australia and New Zealand School of Government. 3.
^[87] As above at 18.
^[88] Altman and Russell above, at 1.

^[89] Altman and Russell above note 17 at 1. See also Jon Altman’s detailed analysis of the Intervention, spanning over 150 pages, in which he documents results that include an increase in violence, malnutrition and truancy in particular communities following the Intervention: Altman Jon ‘Arguing the Intervention’ [2013] JlIndigP 3; (2013) 14 Journal of Indigenous Policy 1, particularly at 79.
^[90] Watson I (2009) “Aboriginality and the Violence of Colonialism” 8(1) Borderlands 1. See also Watson Irene ‘In the Northern Territory Intervention, What is Saved or Rescued and at What Cost?’ 15(2) Cultural Studies Review 45.