UNCONSCIOUS RACISM:

SCRUTINIZING JUDICIAL
REASONING IN ‘STOLEN
GENERATION’ CASES
ELENA MARCHETTI AND JANET RANSLEY
Griffith University, Australia

ABSTRACT

Like other western legal systems, Australian law is based on notions of the rule of
law, justice and equality. Legal formalistic ideology would have us believe that as long
as the law as it appears ‘on the books’ is applied equally for all, justice will prevail.
For Indigenous Australian people, formal equality means that their claims for land,
compensation and the recognition of their culture must be assessed through the eyes
of white judges in white courts. Even when those judges strive to apply the law
equally, they will inevitably be applying Eurocentric beliefs and values. In two recent
significant cases concerning Indigenous claims for their removal from their families
as children, those beliefs and values have tended to invalidate not only the legal claims
themselves, but also aspects of the Indigenous culture. This article argues that the
formal application of legal principles to these claims by Australian courts and judges
leads to the exclusion of Indigenous narratives, which ultimately can be construed as
evidence of unconscious racism. Charles Lawrence’s cultural meaning test is used to
critique the reasoning of the judges in two leading Australian cases concerning the
‘stolen generation’ and to expose the unconscious racism that still exists in the
Australian liberal legal system.

KEY WORDS

Cubillo case; cultural meaning test; Indigenous Australians; Kruger case; stolen
generation; unconscious racism

SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications

London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(4), 533–552
DOI: 10.1177/0964663905057659

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534 SOCIAL & LEGAL STUDIES 14(4)

INTRODUCTION

L
AW AND legal processes offer hope as a mechanism for transforming
the social and cultural position of colonized peoples (Feldman, 2000),
partly because they can enable the legitimation, in a public forum, of
Indigenous narratives of history. The hope of this occurring was particularly
strong for Indigenous peoples1 in Australia after 1992, when in Mabo v
Queensland (No 2) (1992) the High Court accepted the continuing existence
of a body of Indigenous law relating to entitlements to land, and seemingly
acknowledged the possibility of a pluralist system of Australian law (see
McRae et al., 1991/2003; Levy, 1998; Gray, 2000; Kerruish, 2002). Yet there
is an ongoing tension between the transformative potential of law in recon-
structing public discourse, and its use as a tool for achieving justice for
Indigenous Australians. Law has been a significant instrument of oppression
– first by the application of the doctrine of terra nullius to justify the loss of
Indigenous sovereignty, and then through the continuing use of law to legit-
imize violence, deprivation of land and culture, and effect ongoing discrimi-
nation and social exclusion in their many forms (see Bottomley and Parker,
1997/1999; Watson, 2002). More subtly, law has been an important tool of
cultural destruction, by failing to recognize the separate understandings of
life held by Indigenous peoples, instead translating and assimilating those
understandings into the dominant, white, worldview. Uhlmann (2001) argues
that such assimilation is unjust and violent, but even worse is the violence of
silence:
Indigenous Australians have experienced the worst possible violence of terra
nullius, a silence of non-recognition, and they have experienced the violence of
the totalising monologic discourse of assimilation which sought to reduce their
otherness to the same of white Australia. (p. 46)

Critical race scholars such as Lawrence (1987), Crenshaw (1990) and Delgado
(1995) have described the ways in which ‘legal cultures’ (Cossins, 2003: 99)
can exclude racialized narratives. This exclusion can be illustrated even in the
Mabo v Queensland (No 2) (1992) case, which seemed to offer so much in
Australia. Patton (2001) points out how the High Court established that
native title was not a form of tenure derived from the common law, but failed
to point out that neither was it derived from Indigenous law (Uhlmann,
2001).
One of the main issues in the debate about the role of law in racial narra-
tives is whether judges, when making decisions regarding procedural and
evidential rules, do so equitably without excluding racialized others. Our
concern in this article is with the role of courts and judges in mediating and
accommodating Indigenous narratives in Australia. On the one hand, the
Mabo judgment ‘renewed law’s legitimacy by reconciling it with the “facts”
of history’ (Mathew et al., 1995: 25) and opened up the prospect of courts
redressing the effects of Australia’s colonization and empowering Indigen-
ous people by recognizing their stories. But on the other hand, subsequent

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 535

cases have shown courts acting in a very different way, as continuing agents
of colonization in their exclusion of Indigenous narratives. In the Members
of the Yorta Yorta Aboriginal Community v State of Victoria and Others
(2002) case, for instance, the High Court accepted a view of Indigenous
culture having been ‘swept away by the tide of history’, so that a culture
which adapted to accommodate the forcibly imposed requirements of white
culture and law thereby surrendered its Indigeneity.
We examine the judgments in two ‘stolen generation’ (Human Rights and
Equal Opportunity Commission, 1997) cases that illustrate the dynamics
of court treatment of Indigenous narratives. These cases (Kruger v The
Commonwealth of Australia (1997) and Cubillo and Gunner v The Common-
wealth of Australia (2000)) concern Indigenous plaintiffs seeking redress for
damage resulting from their removal from their families as children and
subsequent institutionalization and maltreatment. Kruger and Cubillo were
each brought on very different grounds, but demonstrate, we argue, the
unconscious racism of Australian courts that continues to depict Indigenous
people as an unworthy ‘other’, thereby justifying their exclusion from the
court’s protection. This unconscious racism rests on unstated, shared
assumptions about what constitutes legitimate Indigenous culture and how
Indigenous people should act. We apply Lawrence’s (1987) cultural meaning
test to identify the existence of unconscious racism in these two Australian
court decisions.
We begin with a brief overview of the marginalization of Indigenous
people in Australia, and the role of legal cultures in this process. This is
followed by a discussion of unconscious racism and its application in the
Australian courts.

INDIGENOUS PEOPLE AND LAW IN AUSTRALIA

Aboriginal and Torres Strait Islander people have lived in Australia for at
least 40,000 years. When white occupation began in 1788, their total popu-
lation was around 1.5 million. An estimated 20,000 died in violent conflict as
part of the process of colonization, with many more dying from introduced
illnesses and malnutrition resulting from loss of traditional hunting grounds.
By 1900, their estimated population was as low as about 60,000 people
(Bottomley and Parker, 1997/1999).
Today the Indigenous population is increasing and stands at around
460,000 or 2.4 per cent of the total Australian population (Australian Bureau
of Statistics, 2003). This population is the most disadvantaged in Australia,
and one of the most disadvantaged in the world. Life expectancy for Indigen-
ous males during the period 1998–2000 was approximately 56 years and for
women it was 63 years, both being around 20 years less than the total
Australian male and female population; in 1998–2000 the infant mortality
rate was four times higher than for the rest of the Australian population; the
unemployment rate in February 2000 was 17.6 per cent for Indigenous

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536 SOCIAL & LEGAL STUDIES 14(4)

Australians compared to 7.3 per cent for the non-Indigenous population; and
the imprisonment rate as at 30 June 2001 for Indigenous people was 15 times
that of the non-Indigenous population (Australian Bureau of Statistics,
2003).
There have been several policy phases affecting Indigenous people since
1788. In the invasion and frontier phase, Indigenous people were violently
dispossessed of their land, with little protection from the law. In the protec-
tion phase, from the late 1800s to the 1950s, Indigenous people were
corralled into reserves so they could be protected and civilized. In the
assimilation phase, from the 1950s to the early 1970s, policies were aimed at
integrating Indigenous people into white society, by separating them from
their Indigenous culture. Since the 1970s there has been a shift towards the
recognition of Indigenous rights including the right to self-determination
(Bottomley and Parker, 1997).
Use of the legal system to assert these rights has clustered in four main
areas. The first and most ‘successful’ has been land rights, both the estab-
lishment of statutory land rights schemes from the late 1970s onwards, and
from 1992 the recognition of common law native title rights (in the Mabo
case). The second area in which the legal system has been used relates to the
treatment of Indigenous people by the criminal justice system, notably in the
establishment of the Royal Commission into Aboriginal Deaths in Custody
and, more recently, in cases challenging the validity of mandatory sentencing
laws and their impact on Indigenous people. Third, there have been
ad hoc attempts to incorporate into the legal system formal recognition of
Indigenous law and culture, such as the Australian Law Reform
Commission’s recommendations for limited recognition of Indigenous law,
and the recognition afforded by some criminal courts of coexisting systems
of Indigenous punishment of offenders (McRae et al., 1991/2003: 532–51;
Marchetti and Daly, 2004).
Finally, in the late 1990s the legal system began to be used by Indigenous
people seeking reparation for their removal as children from their families.
To date, only a small number of these cases have been decided, as discussed
below, but the significance of this issue is reflected in the fact that as at 2001
around 2100 other claims had been filed, and were awaiting determination
(McDonald, 2001).
The government policy of removal, that separated Indigenous children
from their Indigenous families, was based on a belief in assimilation (see
Markus, 1994; Bottomley and Parker, 1997/1999: 256; Cunneen, 2001). The
Human Rights and Equal Opportunity Commission (1997), in its Bringing
Them Home Report estimated that 10 per cent of Indigenous children were
removed from their families under this policy. The removal policy saw a
problem of increasing numbers of Indigenous women bearing the children
of non-Indigenous men, and a solution to that problem in those children
learning to live as whites. This was perceived as beneficial to the children, by
allowing them opportunities to progress in white society. It was also seen as
assisting their Indigenous mothers, who were sometimes shunned by their

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 537

own communities for having borne a child by a non-Indigenous man, as well

as being excluded by white society (Howson, 1999). But it was also seen as
aiding the inevitable absorption by white society of an inferior Indigenous
people and culture. One official of the time described the need for ‘complete
separation of half-castes2 from the Aboriginals with a view to their absorp-
tion by the white race’, this being necessary to ‘check the breeding of them’
(Storey, 1998: 229).
While the policy of assimilation was introduced as a solution to a ‘problem’
that was ever increasing, it left a legacy of suffering for many Indigenous
peoples (Cunneen, 2001). This phenomenon was not present in the assimi-
lation policies introduced in New Zealand with respect to Maori people.
Although special schools for Maori children were established in order to
ensure they learned the English language and lived according to the values
and culture of the settlers, only a few Maori children were actually removed
from the care of their families (Armitage, 1995). Armitage suggests that
Maori people were perceived as being more accepting of European values,
possibly because of their integration into New Zealand politics:

The Maori people had, by the 1920s, established themselves as a politically

viable component of New Zealand society. Although they were not declining
in number, they appeared to be accepting European values. New Zealand was
seen as a successful example of the operation of aboriginal policy. As a result,
New Zealand did not resort to such harsh forms of paternalistic policy as
banning traditional aboriginal customs, managing aboriginal communities
through government agents, and/or separating aboriginal children from their
parents. (p. 190)

Canada had a similar historical experience to Australia in the way that

governments and churches treated their First Nations peoples. For many
years, First Nations children were compulsorily sent to industrial and resi-
dential schools (O’Connor, 2000; Buti, 2001). They experienced similar
physical and psychological injuries as Australia’s stolen generation. The
Royal Commission on Aboriginal People established in 1991 by the
Canadian Federal government unearthed a plethora of evidence that pointed
to the widespread sexual, physical and emotional abuse of First Nations
children (O’Connor, 2000). Since the Inquiry, the then Minister for Indian
Affairs and Northern Development, the Honourable Jane Stewart, apolo-
gized on behalf of the Canadian government in a speech delivered on 7
January 1998 (Buti, 2001). A commitment of AU$350 million was made to
establish community-based healing programs (Buti, 2001). The four
churches3 that had been involved in operating the residential schools also
apologized by January 1998 (O’Connor, 2000). It was feared that the apolo-
gies would result in an increase in litigation against the government. Indeed,
following the apologies by the government and the churches, a number of
residential school claims have been instigated for the sexual abuse the
children had endured (O’Connor, 2000). Limitation periods and the principle
of employer vicarious liability have been relaxed and extended in order to

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538 SOCIAL & LEGAL STUDIES 14(4)

allow the plaintiffs to successfully sue the government for the abuses. Many
suits have also been settled out of court. It has been argued that it has been
easier for the Canadian plaintiffs to succeed, not because of the apologies
offered by the Canadian government and churches, but because the claims
have focused on the sexual abuse of the children in the residential schools
(O’Connor, 2000).
In stark contrast to the Canadian situation, to date members of the stolen
generation in Australia have been unable to obtain either an apology or
compensation from the Commonwealth government.4 A significant imped-
iment to reconciliation between Indigenous and non-Indigenous communi-
ties in Australia has been the refusal by the Commonwealth Government and
the courts to respond adequately to the harms suffered by the members of
the stolen generation (Brennan, 1999; Watson, 2000). This failure continues
despite what is now known about the devastating effects of assimilation
policies on the Australian Indigenous population (RCIADIC, 1991; Human
Rights and Equal Opportunity Commission, 1997; Cunneen, 2001). The
Commonwealth government, instead of apologizing, has spent more than
AU$11.5 million in defending the claim made by Lorna Cubillo and Peter
Gunner (Jopson, 2001; PIAC, 2002), whose legal costs were also met by the
government, through the Aboriginal and Torres Strait Islander Commission.
In the face of governmental refusal to deal with the continuing effects of
removal, some Indigenous people have turned to the courts for redress.
However, no case has yet been successful in a court of law in proving that
the removal of children violated any rights recognized by Australian law. The
only successful compensation cases to date have been in administrative
tribunals, not a court, where in common with the Canadian cases discussed
earlier, the claims related to sexual assaults suffered while the claimant was
in care, rather than the fact that they were in care at all (McRae et al.,
1991/2003; PIAC, 2002). The success of these claims supports the contention
that claims based on proved physical harm may succeed whereas cases based
on the act of removal fail. It is also relevant that the claim was determined
by a fact-finding administrative tribunal, rather than a court reliant on the
interpretation of legal principles.
Our main concern in this article is to ask why the courts have not provided
an avenue for redress in stolen generation cases. Is there a structural barrier
in the Australian court system that inhibits its ability to give redress to the
victims of institutional racism? We argue that there is such a barrier, in the
form of unconscious racism, applying similar theoretical constructs to those
identified by critical race scholars in the United States. The experience there
has been focused on the unconscious racism of governments and legislatures,
which become subject to judicial scrutiny because of constitutionally guar-
anteed rights to equal protection. The lack of constitutionally protected
equality in Australia means that its Indigenous people face an even more
difficult task in addressing inequality. We argue that the barrier exists not just
with governments, their legislation and policies, but also with the application
of the rule of law tradition in Australian courts. As Strelein (2000) notes: ‘the

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 539

capacity of the courts to impose upon the legislature for the protection of
rights relies heavily upon the rule of law tradition’ (p. 3). We argue that the
rule of law in the form of judicial decision-making powers, is itself uncon-
sciously racist and it cannot therefore protect the rights of minorities.

UNCONSCIOUS RACISM

The prevailing western legal philosophy is that of liberalism, which is a phil-

osophy based on a premise that legal cultures are benign, neutral and
autonomous (Simpson and Charlesworth, 1995). The practice of liberal legal
formalism ignores anything outside the legal dimension of a case (Davies,
1994/2002). This, it is claimed, is required to ‘preserve the objectivity and
independence of the law’ (p. 136).
Critical race and other radical scholars have claimed that legal cultures are
institutions of power that discriminate and oppress on the basis of various
categories including race (Crenshaw, 1990; Minow, 1990; Delgado, 1995).
Indeed, the liberal legal system has been described as operating in a way that
racializes the ‘other’ and ultimately treats that ‘other’ as inferior (Minow,
1990; Davies, 1994/2002). Liberal legal cultures would deny accusations of
racism on the basis that external appearances are actually ignored. In doing
so ‘[t]he educated liberal West has tried to eliminate race from its conscious-
ness’ (Davies, 1994/2002: 287). Claims of racism can easily be denied from
such a perspective by asserting that in fact colour or race makes no differ-
ence to outcomes. Such an ideology makes it extremely difficult to substan-
tiate claims of racism within legal cultures: ‘The silences and denials
surrounding privilege are the key political tool here. They keep the thinking
about equality or equity incomplete, protecting unearned advantage and
conferred dominance by making these taboo subjects’ (McIntosh, 1998:
104–5). Under such conditions, racist practices become more difficult to
detect, both by the observer and the observed. For example, Frankenberg
(1993), when describing her journey as a ‘white feminist’ scholar in the 1980s,
admits that she ‘had not previously known [she] was “being racist” and that
[she] had never set out to “be racist”’ and yet she realized that ‘as a coauthor
. . . of feminist agendas and discourse, [she] was at best failing to challenge
racism and, at worst, aiding and abetting it’ (p. 3).
The suppression of racism means that the racialization of minorities needs
to be addressed from a different angle. Rather than trying to label decisions
made by judges as exhibiting notions of intentional racism, we argue that it
would be more prudent to take an approach that labels the racism as covert
and proceed from there. Attempts at identifying intentional racism on the
part of the judiciary will only be met with resistance. Instead, such claims
may be better received if identified as an inevitable consequence of our
liberal legal culture and colonial history, which would also remove any
individual blame. One way to do this would be to label the racism as un-
conscious racism.

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540 SOCIAL & LEGAL STUDIES 14(4)

Lawrence (1987) argues that much discrimination is unconscious. That is,

while contemporary western liberal societies have moved to a position where
overt racism is seen as immoral, the unconscious absorption of certain
cultural beliefs and preferences nevertheless transmits racial stereotypes and
assumptions that result in race-dependent outcomes.
His argument is presented in the context of a critique of a legal doctrine
developed by the United States Supreme Court in determining whether legis-
lation is racially discriminatory. The test the court developed in Washington
v Davis (1976), required that claimants asserting racial discrimination show
a racially discriminatory purpose on the part of legislators in order to
successfully challenge the constitutional validity of a law. Critics of this test
have argued that it places an almost impossible burden on plaintiffs:

[A] motive-centered doctrine of racial discrimination places a very heavy, and

often impossible, burden of persuasion on the wrong side of the dispute.
Improper motives are easy to hide. And because behavior results from the
interaction of a multitude of motives, governmental officials will always be able
to argue that racially neutral considerations prompted their actions. Moreover,
where several decision makers are involved, proof of racially discriminatory
motivation is even more difficult. (Lawrence, 1987: 319)

The need to prove a racially discriminatory purpose, which essentially

requires proof of an intent to discriminate, also ignores the fact that people
suffer injury regardless of motive, as has long been recognized by the law of
negligence (Fleming, 1998). People may unconsciously exclude and still
therefore harm by virtue of their exclusion, even though they profess to be
‘colour blind’, treating everyone equally.
Cognitive psychology recognizes that culture informs much of our beliefs
and preferences (Howard, 1995). The teachings of a culture are so ubiquitous
that they permeate a person’s way of thinking without necessarily being
explicit (Lawrence, 1987). If racism is part of a cultural heritage, then it will
be passed on to future generations by way of a learned behaviour that results
in an unconscious way of thinking.
As outlined earlier, Australia (like America) has had a tumultuous racial
history. With a history of colonization feeding social norms, it is difficult to
deny that Australian society and institutions have engaged in racism and that
‘past policies and laws affecting Indigenous Australians were based not on
liberal values but on the “imaginings” of racist thinking’ (Bottomley and
Parker, 1997/1999: 275; see also Darian-Smith, 1996).
This ‘racist thinking’, albeit existing in the unconscious, has the capacity
to harm those seen as ‘other’. However, racism which is internalized in the
unconscious is generally not acknowledged by decision makers because they
are unaware of its presence (Lawrence, 1987). Defensive mechanisms such as
denial or repression make forbidden wishes palatable. Therefore, actions that
result from unconscious racism will often be difficult to recognize as racist,
especially where the focus of examination is on the motive underlying the
action, rather than the outcomes resulting from the action.

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 541

Lawrence (1987) suggests using a ‘cultural meaning’ test to overcome this

difficulty of detection. The test, he claims, would assist the judiciary to
identify unconscious racism in government action. It evaluates ‘government
conduct to see if it conveys a symbolic message to which the [dominant white
hegemonic] culture attaches racial significance’ by considering whether ‘a
significant portion of the population thinks of the governmental action in
racial terms’ (p. 356). This test incorporates a cultural element by recognizing
that societal attitudes towards racist practices will influence the way in which
racism will be tolerated in that society. If a society no longer condones overt
racism, many racist attitudes will in fact be repressed. However, when asked
to evaluate government behaviour, Lawrence argues that any repressed
racism will surface and the society will be able to identify the racial meaning
in the action. ‘[C]ertain actions, words, or signs may take on meaning within
a particular culture as a result of the collective use of those actions, words,
or signs to represent or express shared but repressed attitudes’ (p. 356).
Importantly, Lawrence’s cultural meaning test must not be used in isolation
but in conjunction with a society’s historical attitude towards and treatment
of the minority group in question.
Arguably, a judge trained in liberal legalism may find it difficult to identify
the racism attached to the actions of legislators. The application of liberal
values by the judiciary inevitably conceals their continued acceptance of the
dominant culture, by their automatic and unconscious normalisation of
whiteness (McRae et al., 1991/2003; Davies, 1994/2002). Lawrence’s use of
the cultural meaning test, in suggesting how a court can evaluate a govern-
ment action in order to uncover any unconscious racism, may not, therefore,
work in practice. For that reason we are not arguing that judicial officers
should use the test to determine whether any unconscious racism existed in
the legislation sanctioning the removal of Indigenous children in Australia.
In our opinion, one does not need such a test to be able to see that the laws
sanctioning the removals were discriminatory. Instead we would like to use
the test to determine whether any unconscious bias exists in the decisions
made by the judges. Conscious racism on the part of the contemporary
judiciary is unlikely to be acknowledged, but as Lawrence (1987) points out,
‘whatever our preferred theoretical analysis, there is considerable common-
sense evidence from our everyday experience to confirm that we all harbour
prejudiced attitudes that are kept from our consciousness’ (p. 339). Steven-
son and Friedman (1994) in their study of judicial tolerance of racial bias in
the criminal justice system concluded that ‘it is difficult to identify much
evolution on the part of courts, legislators, or policymakers in appreciating
the debilitating injustice that invidious racial bias represents in the adminis-
tration of legal process’ (p. 510). Although some may resist and devalue
claims of unconscious racism, Davis (1995) believes that ‘it must be examined
and understood, rather than resisted’ (p. 170). Other scholars such as
Cunneen (1992) and Razack (1998) have identified how racial stereotyping,
which Davis (1995) argues may manifest as unconscious racism, can influ-
ence judicial decision making. Both claim that the culturalization of racism

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542 SOCIAL & LEGAL STUDIES 14(4)

can lead to white judges practising ‘pluralistic ignorance’ in sentencing

Australian Indigenous and Canadian First Nations males for physical and
sexual assault, which in turn may oppress and discriminate against Indigen-
ous females (Razack, 1998: 229; see also Cunneen, 1992: 127–9). In claiming
to accommodate so-called cultural norms, such as lack of eye contact and the
prevalence of alcohol abuse in Indigenous communities, and accepting
the testimony of Indigenous and non-Indigenous male witnesses regarding
the sexual behaviour of Indigenous women, judges have relied on misguided
preconceptions of Indigenous culture in making decisions about sentencing.
When the preconceived notions are challenged, evidence of unconscious
racism surfaces.
It is therefore important to scrutinize judicial decisions to uncover racially
biased nuances. Cunneen (1992) notes that there is a need ‘to scrutinize
judicial thinking within a broader framework than simply the logic of legal
rationality’ (p. 131). Using a test such as Lawrence’s cultural meaning test,
allows us to test certain aspects of judicial reasoning for evidence of racial
bias against a social-historical benchmark.

UNCONSCIOUS RACISM IN THE AUSTRALIAN COURTS

How, then, does the theory of unconscious racism fit with practice in the
Australian courts? We aim to cast some light on this question by examining
two important Australian cases in which Indigenous people have sought
redress. The key cases are the decisions of the High Court of Australia in
Kruger v The Commonwealth of Australia (1997) (this case was initiated in
the High Court because the plaintiffs’ argument was based on Constitutional
law) and that of the Federal Court of Australia in Cubillo and Gunner (2000)
(which was later ratified by the High Court on appeal in 2002).
The Kruger case involved nine applicants, all but one removed as young
children in the Northern Territory between 1925 and 1944, with the remain-
ing plaintiff being the mother of a removed child. The Cubillo case involved
Lorna Cubillo and Peter Gunner who were also born in the Northern
Territory, and who were removed at age eight and seven respectively, in 1947
and 1956. Both cases involved Northern Territory legislation that entitled
the Chief Protector of Aborigines (later the Director of Native Affairs) at
any time:
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 for him to do so, and for that purpose may enter any premises where the
Aboriginal or half caste is or is supposed to be, and may take him into his
custody. (Aboriginals Ordinance, 1911 (NT): section 6)

In Australia, establishing the racism of conduct is not enough to attract redress,

at least for conduct that occurred prior to the introduction of the Common-
wealth Racial Discrimination Act in 1975. Australia has no constitutional
protection of equal rights as in the United States, and hence administrations

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 543

did not act unconstitutionally simply by introducing racially discriminatory

legislation.
In Kruger, the applicants attempted to overcome this barrier by challen-
ging the constitutional validity of the Ordinance. They argued that there is
an implied protection in the Constitution from any law or executive act
having a genocidal purpose or effect, including the removal or transfer of
children (per Brennan CJ at 4). The plaintiffs also argued that the Ordinance
breached implied constitutional rights to legal equality, freedom of
movement and association, and the separation of judicial and executive
powers (by conferring on a non-judicial body the power to make detention
orders of a judicial character). Breaches of these rights, the plaintiffs argued,
gave rise to a right of action to recover damages from the Commonwealth,
but they also argued for damages based on the common law torts of wrongful
imprisonment and deprivation of liberty.
The High Court rejected all grounds for the Kruger action. All five judges
agreed that the conferral of removal and detention powers was not an exclus-
ively judicial exercise of power, but rather one based in welfare concerns, of
an administrative character. All the judges aside from Toohey J rejected the
existence of any constitutional right to legal equality in Australia, and while
three judges found there was a right to freedom of movement and associ-
ation, only Gaudron J found the Ordinance to have breached that right in
some way.
The most racially relevant finding was the court’s determination in relation
to the matters concerning genocide. Gaudron J was also the only judge to
find a constitutional freedom from genocide, and all judges held that the
removal and detention of children were not genocide. Despite arguments that
the forced removal of children clearly falls within the definition of a genoci-
dal act given in the 1948 International Convention on the Prevention and
Punishment of the Crime of Genocide (Storey, 1998: 226), the court found
there was no evidence of any intention to destroy a racial group in the Ordi-
nance empowering the removal of children.
If we apply Lawrence’s cultural meaning test to this particular aspect of
the decision in Kruger, we find that the judges came to their conclusion on
the basis of racially motivated intentions. In determining that there was a lack
of evidence to establish any intent to commit genocide, the High Court relied
on a test very similar to that developed by the United States Supreme Court
in Washington v Davis (1976), which requires a racially discriminatory intent
before discrimination can be proved. The Ordinance was in fact interpreted
by the court as being benevolent and in the best interests of Indigenous
people rather than as assisting in the destruction of a racial group. To illus-
trate Dawson J states:
On the contrary, as has already been observed, the powers conferred by the
1918 Ordinance were required to be exercised in the best interests of the
Aboriginals concerned or of the Aboriginal population generally. The acts
authorised do not, therefore, fall within the definition of genocide contained
in the Genocide Convention. (Kruger v The Commonwealth of Australia,
1997: 70)

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544 SOCIAL & LEGAL STUDIES 14(4)

Using Lawrence’s cultural meaning test we would argue that the majority of
people in Australia would interpret the court’s decisions as necessary for
protecting the incumbent government from liability against an obligation to
compensate the victims. This meaning would have emerged from a long
history of racial dissension in Australia and an unwillingness on the part of
the non-Indigenous population to recognize that the Indigenous population
continues to suffer as a result of colonization. Indeed a 1999 public survey
conducted by the Council for Aboriginal Reconciliation found that there was
a lack of public support for the Commonwealth government to apologize to
the stolen generation (McRae et al., 1991/2003: 606). There would therefore
be even less support for compensation to be paid. The cultural meaning test,
when applied to the court’s decision to interpret the intent of the Ordinance
in a positive way rather than as an intent to destroy in whole or in part a
racial group, reveals evidence of racial prejudice. That is, that the stolen
generation as a group need to be prevented from proving that European
colonization and conquest caused their genocide. The court, claiming to be
a separate arm of government, would arguably be unable to recognize its
inclination to prevent the applicants from being able to recover any compen-
sation for past harms, and its desire to avoid a decision that would open the
floodgates. We argue such preferences are hidden in the unconsciousness of
the judicial officers, but that they exist due to Australia’s historical treatment
of its Indigenous peoples.
The Cubillo case was a trial by a single judge of the Federal Court of
Australia. We have examined the decision (Ransley and Marchetti, 2001) in
the context of whiteness theory, where we argued that the judgment illus-
trates the procedural difficulties faced by Indigenous people in utilizing
Australian courts. The case had a large cultural and social impact in Australia.
The delivery of the judgment was televised nationally (which is very unusual
for an Australian court), and it came at a time when public debate over the
very existence of the stolen generation was reviving, with conservative
commentators again questioning whether any children were in fact ‘stolen’
(Robert, 2002). The plaintiffs’ loss of their suit was perceived by some as
vindication for these conservative stances. This was strengthened by percep-
tions of the judgment as ‘careful, compassionate and sensitively considered’
(Robert, 2002) – in other words, a caring judge nevertheless forced to reject
the claim on purely neutral legal grounds. We argue instead, relying on our
own earlier analysis and other sources, that the decision reflects the judge’s
unconscious racism.
The case involved the removal of two children under the same Ordinance
that authorized removal in the Kruger case. Due to the absence of a law that
endorsed equal protection, the plaintiffs in Cubillo had to frame their claim
in terms of other legal rights including:

1. that they had been wrongfully imprisoned;

2. that their removal and detention were in breach of a fiduciary duty owed
to them by the Commonwealth government since they were in the care
of a government department;

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 545

3. that the Commonwealth government breached its statutory duty to act in

good faith; and
4. that there was a breach of duty of care owed by the government to take
reasonable care of those they removed and detained as children.

Justice O’Loughlin found that the applicants had each suffered damage in
the form of psychiatric illnesses and through loss of contact with their
traditional culture. However, they had not discharged their burden of proof
in relation to any of the causes of action. Specifically, the judge found that
the evidence did not establish a policy of indiscriminate removal of children
regardless of their personal circumstances. While wrongs may have been
committed by certain individuals involved in the removal or detention of the
plaintiffs, they had failed to establish the Commonwealth’s liability for these
wrongs.
In coming to such a conclusion, the judge was, to a certain extent,
constrained by legal doctrine and rules. Nevertheless he used his discretion
to interpret the legal rules and doctrine, in a way that we argue reflects an
element of unconscious racism. The most pronounced examples of uncon-
scious racism in the judgment are reflected in the way that Justice
O’Loughlin determined matters of evidence which ultimately affected his
rejection of the claims. The judge assessed the testimony of witnesses accord-
ing to three stereotypes – first, that of the caring missionaries and govern-
ment officials who acted under the prevailing standards of the times, and
whose evidence he regarded sympathetically. The second stereotype was of
unreliable Indigenous witnesses whom he regarded as reconstructing
evidence or suffering from a churlish, defensive or truculent attitude, and
whose evidence he either rejected or weighted lowly; and the third stereo-
type was of trustworthy Indigenous witnesses, who had adopted desirable
white features such as learning English, engaging in western education and
working with white experts, and whose evidence was therefore inherently
believable (Ransley and Marchetti, 2001). Deciding according to these stereo-
types, the judge generally disbelieved the testimony of the plaintiffs and their
witnesses, while believing the defence witnesses. For example, the evidence
of the missionary in charge of St Mary’s Hostel (the institution where Peter
Gunner was taken) was assessed as follows:
[T]he evidence of Sister Eileen was very important because it made clear how
she – and no doubt, others like her – worked with dedication and commitment
for the welfare and betterment of the Aboriginal and part-Aboriginal people.
Her evidence was also important because it was something in the nature of a
barometer; she was able to speak with authority about the plight of the part-
Aboriginal child in her time and about how she reacted to that plight. The
evidence was not sufficient to support a finding that she was representative of
the whole community (whether that be a local community or a larger Australia
wide community); but I accept her as a representative of some people who were
working in the field of Aboriginal welfare, as one who was well versed in the
problems concerning that welfare, and as a person whose views were worthy
of the highest respect. (Cubillo and Gunner v The Commonwealth of Australia,
2000: 331)

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546 SOCIAL & LEGAL STUDIES 14(4)

In contrast, the evidence of the two plaintiffs was described as:

There are sections in the evidence of Mrs Cubillo, of Mr Gunner and of some
of their witnesses that I cannot rely on. In making that statement, I do not
thereby infer that either Mrs Cubillo or Mr Gunner deliberately lied in
Court . . . As Walters J noted in S v M the interests of a party may exercise on
his or her mind an influence of which they are unconscious; such may well be
the case here. Both Mrs Cubillo and Mr Gunner showed objective signs of
intense distress at times. At one stage during the trial, Mr Gunner had to seek
medication. I am convinced that they have, with their total conviction,
concluded that they have a just cause to pursue the Commonwealth. I have no
doubt that they believe that their experiences – what they might call their incar-
cerations – were legally, as well as morally, wrong. Armed with this powerful
persuasion, there is the risk that, in some areas, they may have given distorted,
but not deliberately false, accounts of matters to which they deposed in their
evidence . . . I do not think that the evidence of either Mrs Cubillo or Mr
Gunner was deliberately untruthful but I am concerned about their ability to
recall, accurately, events that occurred so many years ago when they were small
children. I am also concerned that they have unconsciously engaged in exer-
cises of reconstruction, based, not on what they knew at the time, but on what
they have convinced themselves must have happened or what others may have
told them. (p. 149)

The judge made this determination in relation to the reliability of the evidence
given by the plaintiffs despite the fact that there were 15 Indigenous
witnesses, one senior government officer and seven expert witnesses who
supported their testimony.
Another example of the way evidence submitted by the plaintiffs was
disregarded in favour of evidence submitted by the Commonwealth is
illustrated by Justice O’Loughlin’s preference for documentary evidence (no
matter how defective) over oral histories provided by Indigenous witnesses.
The most telling example of this is the judge’s acceptance of a document titled
‘Form of Consent by a Parent’ containing the thumbprint of Peter Gunner’s
mother as evidence of her consent to his removal. This document was
accepted over testimony from witnesses that Peter and other Indigenous
children would be hidden from patrol officers, would have charcoal rubbed
over their faces and bodies to make them appear more Indigenous and not
‘half-caste’, and would often run away from patrol officers in fear of being
taken from their families. The judge came to this decision by discrediting the
testimony of the witnesses, particularly that of Peter Gunner, and by accept-
ing that Peter’s mother understood the contents of the document. Inconsis-
tencies in Peter Gunner’s evidence were highlighted and relied upon by
Justice O’Loughlin to support his conclusion that Peter could not have
retained a clear memory of the events that had transpired during his removal.
On the other hand, any doubts about Peter’s mother’s understanding of the
consent form were removed by claiming: ‘[I]t is not beyond the realms of
imagination to find that it was possible for a dedicated, well-meaning patrol
officer to explain to a tribal Aboriginal such as Topsy the meaning and effect
of the document’ (p. 344).

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 547

Interestingly, the judge determined that while the evidence indicated Lorna
Cubillo was taken without her mother’s consent, she could not show that the
officials involved had breached their statutory duty to promote her welfare,
because of the lack of documents kept or retained by the church institutions
and government officials involved in her removal, and the death or incapac-
ity of potential witnesses who could have given oral testimony. What was
lacking was not evidence of her removal from her extended family without
consent, but evidence of the intent of the relevant officials and in particular
of whether their decision was welfare or racially inspired.
Additionally, in determining whether or not the plaintiffs had suffered a
loss of culture, the judge exhibited an approach to Indigenous culture as
something that only existed in a pure state in the past as a form of tribal life.
Essentially Justice O’Loughlin determined that Indigenous culture was
incapable of change or evolution without losing its Indigeneity, and that was
being gradually replaced by a more progressive Western culture (Ransley and
Marchetti, 2001). In coming to this conclusion the judge was therefore able
to find that the plaintiffs were under no circumstances entitled to any
compensation for ‘not being regarded by other members of the Aboriginal
community as traditional owners of the lands’ (Cubillo, 2000: 568).
The cultural meaning test considers whether a significant proportion of the
Australian population would think of the judge’s decisions in racial terms.
That is, would most people in Australia assume that the judge’s decision to
exclude testimony given by Indigenous witnesses and to accept questionable
evidence on the part of the Commonwealth, was based on a belief that
Indigenous people are unreliable and likely to lie but that non-Indigenous
people, particularly government officials, rarely lie? Also would the general
population accept such determinations because of a belief that Indigenous
mothers generally do not take care of their children? As Lawrence (1987)
puts it, ‘even the most self-deluded’ Australian would interpret the exclusion
of Indigenous testimony to mean that such evidence is less reliable than testi-
mony given by non-Indigenous witnesses (p. 357). Historically, Indigenous
people have been treated and perceived as being inferior in all respects to
non-Indigenous others because of their racial categorization (McRae et al.,
1991/2003; Davies, 1994/2002). This gives the decision of the court a racial-
ized meaning. By making certain determinations about the evidence and
claims of the plaintiffs, the court in Cubillo inadvertently and unconsciously
continued to label Indigenous Australians as inferior to non-Indigenous or
Western-conforming Indigenous people.

CONCLUSION

If an analysis of the judicial reasoning in Kruger and Cubillo were based

solely on intent or motive, then it would be unlikely that any racial preju-
dice on the part of the judges would be detected. Scholars such as McIntosh
(1998) have recognized the privilege that comes from being white and from

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548 SOCIAL & LEGAL STUDIES 14(4)

being raised in a way that that obscures the embedded forms of privilege
given to the dominant group:
In my class and place, I did not see myself as racist because I was taught to
recognize racism only in individual acts of meanness by members of my group,
never in invisible systems conferring racial dominance on my group from
birth . . . Disapproving of the systems won’t be enough to change them. I was
taught to think that racism could end if white individuals changed their atti-
tudes . . . [But] a ‘white’ skin in the United States opens many doors for whites
whether or not we approve of the way dominance has been conferred on us . . .
To redesign social systems, we need first to acknowledge their closed colossal
unseen dimensions. (p. 104)

Legal doctrine and processes, if applied in a formalistic manner, are presumed

to be free of bias and able to ensure just outcomes. ‘The Law is perceived as
just to the extent that it hears and respects the claims of each affected class’
(Davis, 1995: 176–7). Therefore, judicial application of legal rules, when there
is no evidence of intentional racial bias, is normally unquestionably accepted.
In the stolen generation cases outlined earlier, Justice O’Loughlin and the
majority in Kruger’s case applied legal doctrine in their analysis of the facts
and in their evidentiary determinations. Prima facie, there was no evidence of
racial bias and it can be argued that the reasoning accommodated Indigenous
narratives. Testimonies from Indigenous witnesses were obtained and
admitted as evidence. However, there needs to be a deeper analysis of the
manner in which courts and judges allow the prevailing hegemony to further
oppress colonized peoples. Without an analysis of the unconscious racism
contained in judicial reasoning, it is too easy to hide behind legal rhetoric and
ignore any stigmatization or oppression that may be present in cases deter-
mining the rights of colonized peoples. In both cases the Commonwealth’s
defence was said to be one of ‘history’ (Cuneen and Grix, 2003: 35), and
specifically that the cases needed to be assessed against community standards
and expectations of the time. But as Cuneen and Grix point out, this is actually
a defence of colonialist versions of history, rather than some independent and
inclusive version of events – Indigenous narratives are specifically excluded or
discredited in this version of history, in the same way that adaptation and
change are taken to discredit the notion of a continuing Indigenous culture.
An application of the cultural meaning test to the reasoning used by the
judges in Kruger and Cubillo requires an understanding of contemporary
societal beliefs and values. If the reasoning conveys a symbolic message to
which the culture attaches racial significance, then it can be argued that it was
made from an unconscious racially motivated perspective. This type of
analysis has not yet permeated the legal doctrine used by judges determin-
ing claims for compensation by members of the stolen generation. The rigid
application of legal rules continues without attempting to be more inclusive
of differing experiences and perspectives. The Australian legal system was
never intended to encompass the narratives of Indigenous people and the fact
that it continues to operate in a hegemonic manner supports the view that
racism in Australian courts exists, particularly at an unconscious level. The

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 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 549

cultural meaning of weighting the evidence of Indigenous witnesses less

favourably than that of non-Indigenous witnesses, of ignoring the signifi-
cance of oral over written testimony for Indigenous witnesses, and of describ-
ing the applicants and their witnesses in disparaging terms, would be one that
demeans and continues to oppress Indigenous Australians. In other words,
the formalistic manner by which courts hearing the claims of members of the
stolen generation have applied evidentiary and procedural rules will have a
racial meaning if Australian culture has historically been taught to believe that
Indigenous applicants and their witnesses are less credible and less significant
than their non-Indigenous counterparts. This belief may not be overtly
espoused but would instead be repressed. It would eventually be recalled
when the treatment of Indigenous applicants in courts of law is assessed using
a cultural meaning test. It may be impossible for the judiciary itself to recog-
nize the entrenched unconscious racism in their decisions, which makes it all
the more imperative for objective outsiders to scrutinize their decisions in the
same way that judges scrutinize the decisions of legislatures and government
officials. Recognition that unconscious racism exists in judicial reasoning
might result in cultural awareness training, which highlights how racist preju-
dices can exist even when a person believes they are acting benevolently.
Alternatively, mandatory cultural awareness training may make it easier for
judicial officers to assess their own hidden prejudices. Unless judicial bias is
acknowledged and managed, the lack of success of Indigenous claimants will
continue unquestioned. Law and legal doctrine will therefore continue oper-
ating without any opportunity for transformation.

NOTES

1. The term Indigenous people is used in this article to describe both Aboriginal
and Torres Strait Islander Australians, who constitute two culturally and
historically distinct groups but are together Australia’s Indigenous peoples.
2. The use of this term, now recognized as offensively racist, was prevalent at the
time these comments were made.
3. The Anglican, United, Roman Catholic and Presbyterian Churches.
4. All State and Territory governments have apologised, although none have
offered any compensation to the stolen generation. The Commonwealth
government established a AU$63 million fund in 1997 to reunite families and
to provide counselling services for individuals suffering from emotional and
psychological trauma as a result of the policy of removal.

CASES CITED

Cubillo and Gunner v The Commonwealth of Australia (2000) 174 ALR 97

Kruger v The Commonwealth of Australia (1997) 190 CLR 1
Mabo v Queensland (No 2) (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v State of Victoria and Others
(2002) 77 ALJR 356
Washington v Davis (1976) 426 US 229

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550 SOCIAL & LEGAL STUDIES 14(4)

REFERENCES

Armitage, Andrew (1995) Comparing the Policy of Aboriginal Assimilation: Australia,

Canada, and New Zealand. Vancouver: UBC Press.
Australian Bureau of Statistics (2003) Available at: http://www.abs.gov.au/ausstats/
abs%40.nsf/2.6.2!OpenView&Start=1&Count=250&Expand=5#5.
Bottomley, Stephen and Stephen Parker (1997/1999) Law in Context. Leichhardt: The
Federation Press.
Brennan, The Hon. Sir Gerard (1999) ‘Reconciliation’, University of New South
Wales Law Journal 22: 595–9.
Buti, Antonio (2001) ‘Canadian Residential Schools – The Demands for Reparation’,
Flinders Journal of Law Reform 5: 225–45.
Cossins, Anne (2003) ‘Saints, Sluts and Sexual Assault: Rethinking the Relationship
between Sex, Race and Gender’, Social & Legal Studies 12: 77–103.
Crenshaw, Kimberle (1990) ‘A Black Feminist Critique of Antidiscrimination Law
and Politics’, pp. 195–218 in D. Kairys (ed.) The Politics of Law: A Progressive
Critique. New York: Pantheon Books.
Cunneen, Chris (1992) ‘Judicial Racism’, Conference Proceedings of the Aboriginal
Justice Issues Conference (Australian Institute of Criminology), Canberra,
Australia 23–5 June. Available at: http://www.aic.gov.au/publications/
proceedings/21.
Cunneen, Chris (2001) Conflict, Politics and Crime: Aboriginal Communities and the
Police. Crows Nest: Allen & Unwin.
Cunneen, Chris and Julia Grix (2003) The Limitations of Litigation in Stolen Gener-
ations Cases. Available at: http://www.criminology.law.usyd.edu.au/publicat/
reports/currreps/cunneen_grix.pdf.
Darian-Smith, Eve (1996) ‘Postcolonialism: A Brief Introduction’, Social & Legal
Studies 5: 291–9.
Davies, Margaret (1994/2002) Asking the Law Question: The Dissolution of Legal
Theory. Sydney: Lawbook Co.
Davis, Peggy C. (1995) ‘Law as Microaggression’, pp. 169–79 in R. Delgado (ed.)
Critical Race Theory: The Cutting Edge. Philadelphia, PA: Temple University
Press.
Delgado, Richard (1995) ‘Introduction’, pp. xiii–vi in R. Delgado (ed.) Critical Race
Theory: The Cutting Edge. Philadelphia, PA: Temple University Press.
Feldman, Alice (2000) ‘Othering Knowledge and Unknowing Law: Oppositional
Narratives in the Struggle for American Indian Religious Freedom’, Social &
Legal Studies 9: 557–82.
Fleming, John G. (1998) The Law of Torts. North Ryde: LBC Information Services.
Frankenberg, Ruth (1993) White Women, Race Matters: The Social Construction of
Whiteness. Minneapolis: University of Minnesota Press.
Gray, Peter R. A. (2000) ‘Do the Walls Have Ears? Indigenous Title and Courts in
Australia’, Australian Indigenous Law Reporter 5: 1–17.
Howard, Judith A. (1995) ‘Social Cognition’, pp. 90–117 in K. S. Cook, G. A. Fine
and J. S. House (eds) Sociological Perspectives on Social Psychology. Needham
Heights: Allyn and Bacon.
Howson, Peter (1999) ‘Rescued from the Rabbit Burrow: Understanding the “Stolen
Generation”’, Quadrant 43: 10–14.
Human Rights and Equal Opportunity Commission (1997) Bringing Them Home.
Report of the National Inquiry into the Separation of Aboriginal and Torres
Strait Islanders from their Families. Canberra: Commonwealth of Australia.
Jopson, Debra (2001) ‘Rattled Ruddock Gets the Refugee Treatment’, The Sydney
Morning Herald, 17 August.

Downloaded from sls.sagepub.com at LAKEHEAD UNIV on March 18, 2015

 MARCHETTI & RANSLEY: THE ‘STOLEN GENERATION’ CASES 551

Kerruish, Valerie (2002) ‘At the Court of the Strange God’, Law and Critique 13:
271–87.
Lawrence, Charles R. III (1987) ‘The Id, the Ego, and Equal Protection: Reckoning
with Unconscious Racism’, Stanford Law Review 39: 317–88.
Levy, Ron (1998) ‘Native Title & the Criminal Law: The Defence of Galarrwuy
Yunupingu’, Indigenous Law Bulletin 4: 10–13.
McDonald, Emma (2001) ‘8.4m Bill to Defend Stolen-generation Case’, Canberra
Times, 27 February.
McRae, Heather, Garth Nettheim, Laura Beacroft and Luke McNamara (1991/2003)
Indigenous Legal Issues: Commentary and Materials. Pyrmont: Law Book Co.
McIntosh, Peggy (1998) ‘White Privilege and Male Privilege: A Personal Account of
Coming to See Correspondences Through Work in Women’s Studies’,
pp. 94–105 in M. Andersen and P. Hill Collins (eds) Race, Class and Gender:
An Anthology. Belmont, CA: Wadsworth Publishing Company.
Marchetti, Elena and Kathleen Daly (2004) ‘Indigenous Courts and Justice Practices
in Australia’, Trends & Issues in Crime and Criminal Justice 277: 1–6.
Markus, Andrew (1994) Australian Race Relations 1788–1993. Crows Nest: Allen &
Unwin.
Mathew, Penelope, Rosemary Hunter and Hilary Charlesworth (1995) ‘Law and
History in Black and White’, pp. 3–37 in R. Hunter, R. Ingleby and R. John-
stone (eds) Thinking About Law: Perspectives on the History, Philosophy and
Sociology of Law. St Leonards: Allen & Unwin.
Minow, Martha (1990) Making All the Difference: Inclusion, Exclusion, and American
Law. New York: Cornell University Press.
O’Connor, Pamela (2000) ‘Squaring the Circle: How Canada Is Dealing with the
Legacy of its Indian Residential Schools Experiment’, Australian Journal of
Human Rights 6: 188–215.
Patton, Paul (2001) ‘Reconciliation, Aboriginal Rights and Constitutional Paradox in
Australia’, Australian Feminist Law Journal 15: 25–40.
Public Interest Advocacy Centre (PIAC) (2002) Restoring Identity: Final Report of
the Moving Forward Consultation Project. Available at: http://www.piac.asn.
au/publications/pubs/restore_20020927.html .
Ransley, Janet and Elena Marchetti (2001) ‘The Hidden Whiteness of Australian Law’,
Griffith Law Review 10: 139–52.
Razack, Sherene (1998) ‘What Is to Be Gained by Looking White People in the Eye?
Culture, Race, and Gender in Cases of Sexual Violence’, pp. 225–45 in K. Daly
and L. Maher (eds) Criminology at the Crossroads. New York: Oxford
University Press.
Robert, Hannah (2002) ‘“Unwanted Advances”: Applying Critiques of Consent in
Rape to Cubillo v Commonwealth’, Australian Feminist Law Journal 16: 1–23.
Royal Commission into Aboriginal Deaths in Custody (RCIADIC) (1991) Final
National Report Volume 1. Canberra: Australian Government Publishing
Service.
Simpson, Gerry J. and Hilary Charlesworth (1995) ‘Objecting to Objectivity: The
Radical Challenge to Legal Liberalism’, pp. 86–132 in R. Hunter, R. Ingleby
and R. Johnstone (eds) Thinking About Law: Perspectives on the History, Phil-
osophy and Sociology of Law. St Leonards: Allen & Unwin.
Stevenson, Bryan A. and Ruth E. Friedman (1994) ‘Deliberate Indifference: Judicial
Tolerance of Racial Bias in Criminal Justice’, Washington and Lee Law Review
51: 509–27.
Storey, Matthew (1998) ‘Kruger v The Commonwealth: Does Genocide Require
Malice?’, University of New South Wales Law Journal 21: 224–31.
Strelein, Lisa (2000) ‘The “Courts of the Conqueror”: The Judicial System and the

Downloaded from sls.sagepub.com at LAKEHEAD UNIV on March 18, 2015

552 SOCIAL & LEGAL STUDIES 14(4)

Assertion of Indigenous People’s Rights’, Australian Indigenous Law Reporter

5: 1–23.
Uhlmann, Anthony (2001) ‘Law Translating Life and Life Translating Law Through
Stories: Bringing Them Home and Benang By Kim Scott’, Australian Feminist
Law Journal 15: 41–54.
Watson, Irene (2000) ‘There is No Possibility of Rights Without Law: So Until Then,
Don’t Thumb Print or Sign Anything!’, Indigenous Law Bulletin 5: 4–7.
Watson, Irene (2002) ‘Buried Alive’, Law and Critique 13: 253–69.

Downloaded from sls.sagepub.com at LAKEHEAD UNIV on March 18, 2015