peteg's blog - noise - books - 2023 02 28 RussellMarks BlackLivesWhiteLaw

Kindle. A follow up to and expansion of his earlier Crime and Punishment. The topic is vital but the book is lengthy, concussive and insufficiently focussed; it took me an age to get past chapter one and a lot of commitment to crawl through the second half. His use of footnotes annoyed me: I'm used to inline citations and I learnt a long long time ago that if it's worth saying it goes in the main text, and if it's not you let it go. The kids today might consider that a part of killing their darlings.

I'm not a lawyer. What made Nicholas Cowderey's Getting Justice Wrong valuable to me was that he laid out the legal system to us non-specialists, and that he took an issue-based approach, pointing at particular antinomies of the system and using specific illustrative examples. Here (NT defence lawyer) Marks engages in extensive (excessive) cataloguing of court cases. I found this futile as readers of this book are likely to know that generally things are bad, the general shape of the badness, and the general stasis and backsliding. (See, for instance, Ben Abbatangelo at another Black Inc. venue; it's the era of choose-your-own-apocalypse from a vast and increasing menu.) Sometimes he pulls in a sociological, historical, economic or political angle (beyond his workaday legal frame) but not as successfully as Dean Ashenden. Take, for instance, this from Chapter 14 A New Beginning:

[Circa 1933, s]outh of the Murray, William Cooper — now in his seventies — was doing his own agitating. He began a letter-writing campaign, which soon led to the creation of the Australian Aborigines' League. Among its demands, the League wanted Canberra to take over the administration of Aboriginal affairs from the states (which was eventually achieved by referendum in 1967).

I was left wondering why Cooper thought the Feds would provide a better deal than the states, recalling that it was the Depression, the White Australia Policy was in force and the first and second World Wars close by. And just what did the 1967 referendum achieve anyway? I wanted the perspective that Marks brings to his (excellent) essays.

Ashenden observed the limits of the law as a mechanism for (social) justice, and in particular that issues of sovereignty are quite simply beyond the scope of every court in Australia, and moreover that petitioning the body that could adjudicate such issues — apparently the U.K.'s Privy Council — is not possible. (As a non-lawyer I felt Ashenden spelt that out clearly.) Marks seems to think that Western law has more universalism that it does, more scope for providing justice, even as he pummels us with endless counterexamples and decries the inveterate unwillingness of Australian Settler law to accommodate Indigenous law (or some practices). For instance (again from Chapter 14):

[I]n May 2020, a cave in the Juukan Gorge in the Pilbara was permanently destroyed by mining giant Rio Tinto, despite multiple representations to the company by Puutu Kunti Kurrama and Pinikura heritage managers about its significance: archaeological evidence showed that the cave had been continuously occupied for 46,000 years, making it the oldest known inland site in Australia. Rio Tinto’s actions were entirely lawful under the state’s Aboriginal Heritage Act, which had created an approvals process which favoured the destruction of sacred and significant sites. In the wake of the Juukan Gorge destruction – reported around the world – the Western Australian parliament replaced the Act entirely, though with a new piece of legislation which was opposed by Traditional Owners on the basis that it did not address the central flaws in the existing law.

Here the law is completely irrelevant; a priori decisive were capitalism (the financialisation of just about everything) and a centralised politics, which in his business manifests as privatised prisons and (as he observes) NAAJA (see Chapter 13 The Defenders), and afterwards it was blowback from public (specifically large shareholder) opinion that destroyed corporate reputations and placed the event into the category of never-again-not-until-the-next-time. Marks observes several times that every formal inquiry more-or-less reiterates what was determined and proposed by the Royal Commission into Aboriginal Deaths in Custody (1987 to 1991), which demonstrates that the critical thing that's missing is not epistemic ... so what is it? As Noel Pearson often observes, it's not just partisan politics: Holt, Whitlam, Fraser, Hawke, Keating, Rudd and at times Abbott all made attempts to bend history towards justice. Moreover Marks did sometimes observe that many issues he canvasses are also prevalent amongst non-Aboriginal people, opening the door a crack to a broader Amartya Sen-esque cross-sectional analysis/activism.

Finally, I've always been mystified how the systems of law could ever be reconciled. Take, for instance, the cultural impedance mismatch in this murder trial from 1976 described in Chapter 5 Bending:

According to Joseph's defence lawyer, Judy had repeatedly taunted and insulted Joseph by mentioning tribal secrets she shouldn't have known about. The open discussion of such secrets in court provided grounds, Wells concluded, to make an order banishing all women from the court, including from the jury. Joseph formally pled 'not guilty' to murder through an interpreter. (Unfortunately, that interpreter was uninitiated, and it emerged that Joseph, who was initiated, was unable to speak to him.)

Doesn't this suggest that almost all (actionable, evidentiary, ...) tribal law is beyond the ken of almost all Settlers? (Ashenden noted that Bill Stanner was initiated and provided with tribal secrets in the hope of influencing the state, but he wasn't a lawyer.) And of course tribal law may not be so big on blaming individuals.

Widely reviewed. Chris Cunneen came in for a caning in the book (I think, see Chapter 9 Debate) but is generous in his review. I did not find any that engaged with Marks's take on carceral feminism (see his Chapter 10 Women: How protection isn't working much better this time around for First Nations women) which is entirely depressing.