As I’ve been reporting, the teaching of law at Australian universities is attracting controversy due to academics’ determination to crowbar ‘indigenous perspectives’ into law courses. Perhaps the most notorious is University of Queensland law lecturer, the notably pale, blond and blue-eyed ‘Bundjalung/Kungarakany woman’, Dr Dani Linder.
Linder is just one academic on a crusade to ‘indigenise’ the law curriculum and thus, presumably, Australian law itself. In fact, these academics explicitly advocate racially separatist legal systems of (so-called) “First Nation’s law” and “settler law”.
Leaving aside the question of why they’ve appropriated an American term in order to claim what is a complete fiction – that anything resembling a ‘nation’ existed in pre-European Australia – the question becomes, just what was traditional Aboriginal law actually like in practice? As it happens, we have a treasure trove of historical examples to draw from.
Vicarious liability has long been recognised in First Nations law. Let’s take the case of three Indigenous men in Broome who in 1923 were found guilty of murdering an Aboriginal woman. Her ‘crime’ was being the wife of a man who had killed a woman and then absconded. As the Casino and Kyogle Courier and North Coast Advertiser reported:
“Their tribal law demanded that his [wife] should pay the penalty of his crime, and she calmly submitted, while the accused stabbed herein, the stomach with a spear. The head of the spear broke off in the wound, which was not fatal. She was then stabbed again with the spear shaft, and as she was still alive, two of the accused held her while the other twisted her head round till her neck was broken.”
Given the documented hugely disparate rates of murder by Aboriginal Australian men, we might wonder how many Aboriginal Australian women the academics would be happy to see killed if their husbands scarper.
We might also wonder how many Aboriginal girls they’d be content to see pack raped as ‘punishment’.
Reporting in 1980 on the Northern Territory case of seven indigenous men who had pleaded guilty to conspiring to rape two girls aged 13 and 14, the Canberra Times cited one Dr Robert High Leyton, an anthropologist with the Northern Land Council.
“Pack rape of young girls of the tribe was a known punishment if they breached certain tribal laws,” he said.
Quite possibly the traditional laws regarded women as the chattels of men, who were free to trade them as they wished. This was, for instance, the reality of many Tasmanian girls, who were frequently traded to Bass Strait sealers in exchange for apparently far more valuable goods, like axes and dogs. This appears to have been a widespread and persistent law.
In 1936, Monsignor Xavier Gsell, then in charge of the Bathurst Islands mission, told the Brisbane-based Telegraph the influx of Japanese pearl divers had led to the trading of indigenous women by their menfolk for goods such as tobacco and flour.
“He knew that girls as young as ten years had been traded,” reported the Telegraph.
The Melbourne Argus also reported on the grim trade, noting that the women testified that they would be beaten into submission by Aboriginal men hankering for food and tobacco in trade if they refused.
I realise these facts about Indigenous laws are unpalatable and belie the official narrative. But as noted by Linder and her co-authors in a 2023 paper, it is imperative we change “the mainstream discourse through truth-telling … to mitigate inherent racial biases within society”. And presumably truth-telling includes dispelling romantic but fallacious notions about what indigenising a law curriculum would involve – right, Dr Linder?
I’m guessing it would be a bit like the ‘traditional Aboriginal lifestyle’: lots of people bang on about it, but nobody takes up the abundant opportunity to authentically live it. They like all that “settler” stuff, like the internet, TV, medicine, clothes, far too much.
