Book Launch: Indigenous Crime and Settler Law

What a privilege. QEII Courts Building. Banco Court. Professor MacNeill chairing. Esteemed audience and I get to speak and launch a book written by Heather Douglas and Mark Finnane.

I feel privileged indeed.

Mark and I go back a long way. We met through the community legal service movement. I think we were both on the board of the Prisoners’ Legal Service at one stage. I think we both fall into the category of people roped into doing useful things by Tony Woodyatt. It is a large and always growing group. We have been camping together when our families were young as part of one CLC get together or other.

I have followed Mark’s academic career not from afar but from a little distance. His research and writing interests have always fascinated me. At every fork in the road, he takes the untrodden path. But it’s a special kind of untrodden path. He avoids the trendy subjects but I suspect he has a lot of colleagues thinking: “I wish I had thought of that”. His topics; his work and works are always interesting. Mark’s present title and job: Chief Investigator, Centre of Policing and Security at Griffith University illustrate, I think, all of those points.

Mark is also an Australian Research Council Professorial Fellow. I know that’s important because, when I served on the Council of QUT, our vice-chancellor, Peter Coaldrake, would always impress upon me the importance of recognition of that kind by the ARC.

Mark’s last major monograph was his biography of Sir John Barry, an Australian who deserves to be better known among Australian lawyers. Sir John vies for the title of the best judge not to serve on the High Court. He is also regarded by many as the father of criminology in this country as well as one of the three or four people most responsible for achieving the abolition of capital punishment in this country. Another example of Mark’s ability to find the fascinating topic that other people neglected.

Heather Douglas, I know less well. I think we have met in passing from time to time over recent years but we haven’t made it to CLC get togethers wandering around Lake Cooroibah on the Noosa North Shore.

In the same way as I have been aware of Mark’s work from a distance, I have been aware of Heather’s flow of publications. Heather’s output is extraordinary. As well as the definitive text book, Criminal Process in Queensland in Queensland and Western Australia, Heather has tackled the gritty subjects such as foetal alcohol spectrum disorders and the ongoing saga of the law’s treatment of the experiences of battered women.

Heather was first admitted as a lawyer in Alice Springs and the experience of Indigenous Australians with the criminal law has been a major research interest of hers for many years.

It is not surprising then that these two extraordinary researchers should collaborate to write the text that we are officially launching, tonight.

The topic is indeed a little off the beaten track. I, like most other people when they see or hear of the book, immediately leaped to the view that Indigenous Crime and Settler Law was either about the way in which the law, as it did with the Myall Creek murderers, occasionally, made white murderers responsible for killing Indigenous people or about the way in which white law persecuted Aboriginal people for reacting violently against those who were responsible for stealing their lands.

I was wrong. The book is about the way in which Settler Law has attempted to deal with Indigenous violence inter se; the killing of Indigenous people by other Indigenous people and other examples of black on black violence. This is a more fundamental; a more deep seated problem. It is a problem where the counter-productiveness of enforcing the law and filling our jails with Indigenous people has faced off against the law’s obligation to provide equal protection from violence to all within its compass.

It is an issue that surfaced in the notebooks of Watkin Tench in the months and years after the settlement at Botany Bay. It is an issue that was at least the excuse for the Northern Territory intervention and it is an issue that will trouble us and the law for years to come.

Indigenous Crime and Settler Law is a brilliant book. It is a brilliant piece of research. It is a weighty book. Its 221 pages are full of analysis, references and careful discussion. It brings together and discusses within its research framework much material from many diverse sources. Its value as an academic work will endure for many years.

But I am no academic. Higher Degree Research sounds like a computer game to me. My last piece of formal study happened half way through my articles. So what does Indigenous Crime and Settler Law offer to the non-academic like me? And I was fascinated by every page of the work.

Part of the value is in what I have already said. It is important for lawyers and policy makers to appreciate that the patterns of violence discussed in the book have subsisted for the whole of colonial history. The sort of quick fix that we all love is unlikely to work.

Second, and this is a related point, I think that lawyers need to be reminded frequently of the importance of history. We like to think of law as a momentary thing. To solve a problem, we read the case or the Act or the Regulation. We have our answer. We trundle off. We need to be reminded that there is more in the world than our instant answer gratification.

The law has a history. There are social truths and social facts that have contributed to what the law is and that are operating now to govern what the law will be in the future. A theme that arises from the book is that the sovereignty of the colonial state and of the law has, at all times in our colonial history, been challenged by the beliefs and actions of Indigenous people, and that sub-texts and qualifications continue to emerge and shift and change upon what we believe to be the all-knowing and all-encompassing nature of the Law.

Third, and for the general reader, this may be the most fascinating aspect, Indigenous Crime and Settler Law is full of personalities who have been challenged by what was going on about them and who struggled, through their own value systems, to find a way to come to terms with Indigenous beliefs and actions.

I am a person attracted to easy answers. My confidence that such answers are just around the corner has been shaken by the struggles of the people who populate Indigenous Crime and Settler Law.

I will mention just two. George Fletcher Moore came from Ulster and left the Irish Bar for life in the Swan River Colony in what became Western Australia. He became Commissioner of the Civil Court and later Advocate-General. He received a grant of land in the Swan Valley. He befriended Aboriginal people. He learned their languages. He witnessed pay back violence by Aboriginal people. He often knew the perpetrator and the victim. Sometimes he witnessed violence taking place and sometimes he prevented it from happening. He was involved in trials of Aboriginal people who killed because their laws said that they should or could. He advised the authorities to show lenience to perpetrators when they were convicted.

George Moore struggled with the dilemmas that being part of a settler culture offered in dealing with the culture that had been displaced but that still operated and governed the lives of its people.

His notebooks discourage any thoughts of easy answers.

Another extraordinary character is Justice Martin Kriewaldt. Martin Kriewaldt is a special research interest of Heather and there is an extensive web site on him maintained by the Law School at UQ.

Justice Kriewaldt was the sole judge of the Northern Territory from 1951-60. He was called to preside over 39 murder trials during that time. During his time, Kriewaldt faced many of the dilemmas of settler law dealing with Indigenous people whose value systems did not mesh with those of the legal system that was intended to rule their lives.

Kriewaldt believed in the applicability of the law to all citizens within its domain. However, a strong Lutheran, he also appreciated the dilemmas involved. When it came to sentencing and to the application of criminal defences, the Judge developed many original ideas which remain important and valuable.Before I read Indigenous Crime and Settler Law, I was aware of the writings of Watkin Tench. I had not heard of either Moore or Kriewaldt although Martin Kriewaldt is a familiar name to anyone who has practised in the law in Brisbane since the 1970s.

I am grateful to Mark and Heather for having met those characters from two very different corners of our colonial history. That would be enough in itself to justify reading Indigenous Crime and Settler Law. Indigenous Crime and Settler Law is valuable, however, on many levels as its future readers will experience.

I feel very honoured therefore to be asked to officially launch Indigenous Crime and Settler Law.

I hereby launch Indigenous Crime and Settler Law. May she and all her sail in her be blessed by all our respective Gods.

Stephen Keim S.C.