White Law/Black Deaths: Nomocide and the Foundational Absence of Consent in Australian Law

Abstract

State and police brutality around the globe in 2020 brought into sharp focus the role of legal apparatuses in causing death, particularly of black and Indigenous lives. Against the backdrop of Black Lives Matter (#BLM) events and protests, #endSARS in Nigeria and amid the ongoing fight against Aboriginal deaths in custody in Australia, the critique made by Isobell Coe in Nulyarimma v Thompson, the case that sought to have the crime of genocide and its impact as part of ongoing colonialism recognised in Australian law, is more urgent than ever. Following Coe’s critique that Australian law becomes complicit in genocide if it fails to hear Indigenous peoples protests, how do and how should legal thinkers engage with the system of Australian law especially in a climate where the direct link between settler-colonial legal infrastructures (courts, prisons, police and legislators) and the violation of Indigenous and black lives has been laid bare. A legal system lacking consent at its foundation and characterised in the present day by a refusal to hear and engage with its violent origin, while seeking to acquire consent retrospectively is nomocidal. Nomocide captures the function performed by all arms of the law in committing genocide in Australia. As such, the complicity and culpability of a system of law founded in non-consensual conditions must be reckoned with, without delay. This requires a willingness among scholars and practitioners of law to see it as deathly or nomocidal in order to begin addressing the colonial violence that stems from it.

Notes

1 Maria Giannacopoulos, ‘Sovereign Debt Crises, Referendums and the Changing Face of Colonial Power’ (2017) 31(1) Continuum 33.

2 Existing literature on the challenge posed by Nulyarimma focusses on the recognition of genocide by colonial law rather than the genocidal status of that law. See Andrew Mitchell, ‘Genocide, Human Rights Implementation and the Relationship Between International and Domestic Law: Nulyarimma v Thompson’ (2000) 24 Melbourne University Law Review 15; Sean Peters, ‘The Genocide Case: Nulyarimma v Thompson’ (1999) Australian International Law Journal 233; Julie Cassidy, ‘Unhelpful and Inappropriate?: The Question of Genocide and the Stolen Generations’ (2009) 13(1) Australian Indigenous Law Review 114.

3 In the matter of an application for a writ of mandamus directed to Phillip R Thompson Ex parte Wadjularbinna Nulyarimma, Isobell Coe, Billy Craigie, and Robbie Thorpe (Applicants), Tom Trevorrow, Irene Watson, Kevin Buzzacott and Michael J Anderson (Intervenors) [1998] ACTSC 136.

4 Nulyarimma & Ors v Thompson C18/1999 [2000] HCATrans 439 (4 August 2000).

5 There are two spellings of Coe’s name in the court transcripts and judgements. I use Isobell throughout.

6 Deryck Beyleveld and Roger Brownsword, Consent in the Law (Hart Publishing 2007).

7 Irene Watson, ‘The Aboriginal Tent Embassy 28 Years After It was Established: Interview with Isobell Coe’ (2000) 5(1) Indigenous Law Bulletin 17.

8 As above.

9 AustLII, Final Report Of The Royal Commission Into Aboriginal Deaths In Custody: Overview <https://www.austlii.edu.au/au/other/IndigLRes/rciadic/rciadic_summary/rcsumk02.html> (last accessed 18 August 2021).

10 As above.

11 Alison Whittaker, Indigenous deaths in custody: inquests can be sites of justice or administrative violence (online) 15 April 2021 <https://theconversation.com/indigenous-deaths-in-custody-inquests-can-be-sites-of-justice-oradministrative-violence-158126> (last accessed 18 August 2021).

12 As above.

13 As above.

14 Walter Marsh, ‘Yapa Lives Matter’ as a Global Movement Embraces Adelaide (online) 7 June 2020 <https://www.adelaidereview.com.au/latest/2020/06/07/black-lives-matter-adelaide-rally-2020/#> (last accessed 8 February 2021).

15 Ebony Stansfield, Black Lives Matter Movement in Australia: First Nations Perspectives (onlline) 19 January 2021 <https://newsroom.unsw.edu.au/news/business-law/black-lives-matter-movement-australia-first-nations-perspectives> (last accessed 8 February 2021).

16 As above.

17 As above.

18 Maria Giannacopoulos, ‘Debtscape: Australia’s Constitutional Nomopoly’ (2019) 18(2) Borderlands 116.

19 As above.

20 As above.

21 Eileen Baldry, Bree Carlton and Chris Cunneen, ‘Abolitionism and the Paradox of Penal Reform in Australia: Indigenous Women, Colonial Patriarchy, and Co-option’ (2014) 41(3) Social Justice 168.

22 First Nations did not consent to the Australian Constitution, an instrument that continued the construction of terra nullius and native savagery according to Irene Watson, ‘Aboriginal Recognition: Treaties and Colonial Constitutions, “We Have Been Here Forever … ”’ (2018) 30(1) Bond Law Review 4.

23 Irene Watson, ‘Talking Up Aboriginal Law in a Sea of Genocide: Interview with Robbie Thorpe’ (2000) 5(1) Indigenous Law Bulletin 14.

24 Watson above note 22 at 13.

25 Irene Watson, ‘First Nations and the Colonial Project’ (2016) 1(1) Inter Gentes 35.

26 Contrast Cathal M Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free, Prior and Informed Consent (Routledge 2015); Dominique Leydet, ‘The Power to Consent: Indigenous Peoples, States and Development Projects’ (2019) Summer University of Toronto Law Journal 69.

27 Irene Watson, ‘Re-Centring First Nations Knowledge and Places’ (2014) 10(5) Alter Native 514.

28 As above.

29 Watson learned this term from Valerie Kerruish; it has no ‘authoritative’ definition. She identifies a further reference to the term in the work by Mary Linda Pearson, From Genocide to Juriscide, the last Five Hundred Years: A History of the Genocide of North American Indian Peoples [unpublished manuscript].

30 Roderick Macdonald and David Sandomierski, ‘Against Nomopolies’ (2006) 54(4) Northern Ireland Legal Quarterly 610.

31 Giannacopoulos above note 18.

32 Nulyarimma & Ors v Thompson C18/1999 [2000] HCATrans 439 (4 August 2000).

33 In the matter of an application for a writ of mandamus directed to Phillip R Thompson Ex parte Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie, and Robbie Thorpe (Applicants), Tom Trevorrow, Irene Watson, Kevin Buzzacott and Michael J Anderson (Intervenors) [1998] ACTSC 136.

34 As above, para 9.

35 As above, para 10.

36 Mabo v Queensland (No 2) (1992) 175 CLR 1.

37 As above.

38 Latoya Rule, Blak Brow: Sovereign Debt 21 December 2018 <https://www.theliftedbrow.com/liftedbrow/2018/12/19/blak-brow-sovereign-debt-by-latoya-rule> (last accessed 8 February 2021).

39 Calla Wahlquist, ‘System is Killing Our People’: Indigenous Families Call for Action on Anniversary of Royal Commission 9 April 2021 <https://www.theguardian.com/australia-news/2021/apr/09/system-is-killing-our-people-indigenous-families-call-for-action-on-anniversary-of-royal-commission> (last accessed 18 May 2021).

40 As above.

41 Pam McGrath and Emma Phillips, ‘Western Notions of Informed Consent and Indigenous Cultures: Australian Findings at the Interface’ (2008) 5 Bioethical Inquiry 21.

42 Beyleveld and Brownsword above note 6 at 24.

43 As above at 27.

44 As above at 311.

45 As above at 313.

46 Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015) 112. See also Nan Seuffert, ‘Colonising Concepts of the Good Citizen, Law’s Deceptions, and the Treaty of Waitangi’ (1998) 4(2) Law Text Culture, for a discussion of the contested operation of consent in the case of New Zealand. Maori consent was seen as necessary to legitimate British colonisation, even if Maori were unlikely to consent to British rule.

47 Aileen Moreton-Robinson, Sovereign Subjects (Allen and Unwin 2007) 3.

48 Carol Pateman, ‘The Settler Contract’ in Carol Pateman and Charles Mills (eds) Contract and Domination (Polity Press 2007) 36–37.

49 Irene Watson, ‘Buried Alive’ (2002) 13 Law and Critique 253; Maria Giannacopoulos, ‘Mabo, Tampa and the Non-Justiciability of Sovereignty’ in Our Patch: Enacting Australian Sovereignty Post-2001 (Network Books 2007) 45–60.

50 Deryck Beyleveld and Roger Brownsword, Consent in the Law (Hart Publishing 2007) 311.

51 Maria Giannacopoulos, “Your Laws are Killing us”: The Death of Kumanjayi Walker and the Crisis of Colonial Law 20 November 2019 <https://www.abc.net.au/religion/the-death-of-kumanjayi-walker-and-the-crisis-of-colonial-law/11722836> (last accessed 18 January 2021).

52 Chris Cunneen ‘Police Violence: The Case of Indigenous Australians’ in Peter Sturmey (ed) The Wiley Handbook of Violence and Aggression (John Wiley and Sons 2017) 3.

53 As above at 2.

54 Jonathan Jackson, Mike Hough, Ben Bradford, Katrin Hohl and Joun Kuha, ‘Policing by Consent: Understanding the Dynamics of Police Power and Legitimacy’ (2012) Policing by Consent: Topline Results (UK) from Round 5 of the European Social Survey.

55 Maria Giannacopoulos, ‘Without Love there can be Law but no Justice’ (2020) 17(7) Globalizations 1085.

56 Maria Giannacopoulos, Can There be a Constitutional Solution to Dispossession? (online) 26 May 2018 <https://www.abc.net.au/religion/the-uluru-statement-from-heart-one-year-on-can-a-first-nations-v/10094678> (last accessed 15 January 2021).

57 As above.

58 Watson above note 22 at 8.

59 Giannacopoulos above note 18.

60 Sovereign Union: First Nations Asserting Sovereignty, Aboriginal Law Must Sit on Top of Whiteman’s Law, Because Our Law is the Law of this land online 4 December 2013 <https://nationalunitygovernment.org/content/aboriginal-law-must-sit-top-whitemans-law-because-our-law-law-land> (last accessed 15 November 2020).

61 George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38(4) Osgoode Hall Law Journal 644.

62 Maria Giannacopoulos, ‘Nomophilia and Bia: The Love of Law and the Question of Violence’ (2011) 10(1) Borderlands.

63 Tabitha Lean, ‘Why I Won’t Make Blak Deaths Palatable’ Kill Your Darlings 24 May 2021 <https://www.killyourdarlings.com.au/article/why-i-wont-make-blak-deaths-palatable/>.