Skeletons in the cupboard: reading settler anxiety in Mabo and Love

ABSTRACT

Thirty years apart, Justices Brennan and Kiefel in the Australian High Court made deeply anxious remarks to define Indigenous identity and assert the power of the Court over Indigenous subjects and subjecthood in the Mabo and Love judgments. The notion that the breadth and depth of the Colonial legal system in Australia in 1992 was so frail as to break its skeleton is a form of gaslighting. Equally, the notion that in 2020 connection to Country is so fragmentable that it can mean one thing in Native Title and another in immigration manipulates an Indigenous notion of Country to fit the mould of settler power. This article analyses the judgments by considering the tone of settler anxiety and finds that in both judgments there remains a sinister logic of seeking to contain Indigenous identity and sovereignty.

KEYWORDS:

• Settler anxiety
• Mabo
• Love
• tone
• cultural legal studies
• settler-colonial studies
• affect

A Introduction

In discharging its duty to declare the common law of Australia¹, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies.

Brennan, Mabo²

Closer to the heart of the plaintiffs’ case is the erroneous assumption that the connection to land necessary for recognition by the common law of native title may be used in an entirely different area of the law, to answer questions of a constitutional kind about the relationship between an Aboriginal group and its members and the Australian body politic. Its use for such a purpose is wrong as a matter of law and of logic. The error is compounded by the fact that race is irrelevant to the questions of citizenship and membership of the Australian body politic.

Kiefel CJ, Love³

Thirty years apart, Justices Brennan and Kiefel in the Australian High Court made deeply anxious remarks to define Indigenous⁴ identity and assert the power of the Court over Indigenous subjects and subjecthood. The notion that the breadth and depth of the Colonial legal system in Australia in 1992 was so frail as to break its skeleton is a form of legalistic gaslighting. Equally, the notion that in 2020 connection to Country is so fragmentable that it can mean one thing in Native Title and another in immigration manipulates an Indigenous notion of Country to fit the mould of settler power. Both show a logic of seeking to contain Indigenous identity and sovereignty.

In this article we pay attention to tone in the legal judgments of two leading cases dealing with the legitimacy of the Australian settler state in the face of Aboriginal and Torres Strait Islander peoples. We consider the 1992 Mabo decision and the 2020 Love case, the latter described as ‘the Mabo citizenship case’.⁵ We argue that the tone of both cases is dominated by settler anxiety even though they are separated by nearly thirty years and written by entirely different High Court benches. Our reading of tone in these two cases draws upon two works: first, Sianne Ngai’s work on tone and anxiety in her influential book Ugly Feelings,⁶ and second Lisa Slater’s use of Ngai’s anxiety to position settler anxiety in settler colonial studies.⁷ Tone, as will be explored in more detail below, is a text’s ‘global or organizing affect, its general disposition or orientation towards its audience and the world’.⁸ Further, we argue that tone points to broader questions for Australia about the relationship between settler law, legal method and sovereignty.

B A question of standpoint

As settler scholars, particular responsibilities fall on us to consider our standpoints, our co-optedness, and our possibilities of re-asserting colonial law’s violences. Indeed, as we explore below, the harms done by the good white settler are nefarious. Saunders tells us ‘our people will do what needs to be done, as we always have, and that we’ll eventually chip away at the shackles. The hope is in the doing, and the hope is the reason for the doing’.⁹ As settlers, it is incumbent on us to be chipping away also and we see a usefulness in dismantling colonial law’s language in the hope of engaging in a more critical awakening in those practicing law, those writing law, and those doing law. We see the pitfalls here though: settlers (and Western Law’s instruments) have long held the shackles – and so the dangers for us are complacency, tokenism, and complicity. Kwaymullina offers guidance to non-Indigenous scholars:¹⁰

respectful engagement with Indigenous standpoints by non-Indigenous scholars – along with a willingness to interrogate their own standpoint/knowledge-discipline – can focus attention on important questions relating to research privilege, and ultimately lead to a more ethical and sustainable engagement with Indigenous peoples.

This is an invitation we seek to meet. We are settler scholars with very different standpoints. One of the writers is a cis-gendered Afghan and Iranian Muslim man whose parents arrived as refugees and raised him on Wallumattagal country. The other writer is a cis white middle-class woman who grew up on a farm on Wiradjuri country and went to boarding school for high school. These identities implicate standpoint and tone because they shape how we come to the law and to settler-colonial relations in Australia. In writing about standpoint, we recognise that class is an element that is often foreclosed in this discussion and it is relevant. One writer grew up working class, and the other middle-class but both would be considered middle class now. These identities mean we see some things through lived experience, we feel and imagine some things through empathy and a desire to ally ourselves, we have blindspots that we interrogate in our thinking but recognise that they persist, and finally, we carry privileges that we seek to account for.¹¹

In co-writing this article we have been able to find a common orientation, if not a common voice. When standpoint is limited to the individual it risks reappropriating liberal norms and the strength of finding a common orientation in its relationality and intersubjectivity; our limitation is that we write as two settlers. We also write about standpoint with intentional reflexivity: we ask the reader to consider our tonal register in this paper.

C The cases of Mabo and Love

Mabo has come to occupy the most prominent space in Australian case law and it is impossible to frame our political, juridical, and cultural polity without reference to the decision. The decision overturned the doctrine of terra nullius – of land belonging to no one – a juridic principle historically used illegally in international law to justify occupation and which underpinned British claims of legitimacy to the invasion and colonisation of Australia. In Mabo the High Court recognised pre-colonial interests, and the idea that some of those interests may have endured in the form of native title. Justice Brennan states:

The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.¹²

When not extinguished, native title would survive the Crown’s radical title over Australia. For native title to endure, Aboriginal and Torres Strait Islander peoples would need to establish they had a continuous connection to the land. That connection could be severed, perversely, by colonial acts of dispossession including the creation of other land interests that clashed with native title, as well as policies that resulted in the forced dispossession of people and children.

Mabo was a watershed moment, coming after decades of mounting civil action and court action by Aboriginal and Torres Strait Islander peoples to fight for land rights and political participation. But the decision sought to constrain Indigenous struggles. In the very moment that the Court recognised an Indigenous form of title, the decision also contained Indigenous demands by rendering the title inferior with limited rights to assert control over proprietary interests. This strategy of containment, was a sleight of hand to sidestep the more profound questions of sovereignty.¹³ Watson speaks to the myth of Mabo, as a case symbolising more than it actually does, and observes that:

this country had the power to create the Mabo myth and retain the Mabo myth for all this time, which now manifests itself in native title … and so on, and provides the very foundation for the ongoing dispossession, the ongoing theft, and the ongoing destruction of both law and land and to reduce the capacity for First Nations people to take responsibility and care for country.¹⁴

Pether tells us:

The High Court's explicit refusal to address the sovereignty question is … both a critical ethical blindspot in the judgment and curiously symptomatic. The High Court's protection of the source of its own (illegitimate?) power as the judicial arm of Australia's national government and its act of containment masquerading as recognition are both symptoms of the covert yet insistent assertion of its own (colonial) power. That the ‘Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court’ (Mabo 1992: 2) was the one thing on which the entire court agreed.¹⁵

Nearly thirty years after Mabo was handed down, the Love case is a contemporary successor to Mabo in the realm of constitutional law in Australia because it continues settler attempts to contain Aboriginal and Torres Strait Islander law.¹⁶ It is a rare example in Australian legal history of the High Court affirming Aboriginal connection to Country as the Love case articulates that Aboriginal people belong here in an inviolable way, and in a way that is different from settlers. Perhaps unsurprisingly, like Mabo, the decision was contentious.¹⁷ While it is too early to tell what the broader implications of the Love decision may be, the decision remains striking as an instance of settler anxiety in a case that affirms the pre-settlement place of Indigenous Australians nearly 30 years after Mabo.

The Love;Thoms case, as Synot argues, ‘touched on foundational questions about the place of Aboriginal and Torres Strait Islander peoples in the Australian community and the Commonwealth’s relationship with them’.¹⁸ The question animating the 2020 case was whether Daniel Love and Brendan Thoms, both identifying as Aboriginal men, who are not Australian citizens under statute are ‘aliens’ under the Constitution. Daniel Love identifies as a Kamilaroi man and is recognised by at least one Kamilaroi Elder and Brendan Thoms is recognised as a Gunggari man and Gungarri native-title holder. Both men were born outside of Australia – Daniel Love in Papua New Guinea and Brendan Thoms in New Zealand – and are citizens of those countries respectively. Both men had not taken steps to become Australian citizens under the Australian Citizenship Act 2007 (Cth). This case arose in the context of whether the Australian Commonwealth government had the constitutional power to deport Daniel Love and Brendan Thoms under the Migration Act 1958 (Cth), after they did not satisfy the ‘character test’ under that Act, having committed offences that lead to a sentence of 12 months imprisonment or more. The Court found in favour of Daniel Love and Brendan Thoms in a slim 4–3 majority decision holding that Aboriginal Australians (as understood according to the Mabo tripartite test) are not aliens under the Constitution, and thus could not be validly deported under the Migration Act. Although each Judge gave separate reasons, the majority of Justices Bell, Nettle, Gordon and Edelman authorised Justice Bell to state that Aboriginal Australians were ‘not within the reach of the aliens power’.¹⁹

We have chosen these cases because Mabo occupies a central place in Australian law and the broader Australian cultural imagination,²⁰ and Love is a controversial contemporary example of a case that both relies on Mabo in its reasoning and speaks to questions about sovereignty, belonging and the broader Australian political community that resonate with contemporary social and political debate.²¹ We see both cases as temporal bookends that situate the current colonial legal order, as both cases speak to the relationship of settler Australia to Aboriginal and Torres Strait Islander peoples in Australia.

In this article we read the lead judgment of Mabo, Justice Brennan’s, because the judgment itself has occupied popular imagination in law and culture. By contrast, there is no lead judgment in Love, and we read the judgments in part for their disparateness, particularly for a bench led by a Chief Justice known for her desire for consensus decision making.²² These cases speak to each other both expressly and impliedly. The Kiefel court in Love continues to reconcile questions of Indigeneity that the Mason court finally addressed after 200 years of activism.

Previous scholarship on Mabo, Love, text and culture

There is extensive scholarship on the Mabo No. 2 decision²³ and a growing body of scholarship on the Love decision,²⁴ and we believe it is an important moment to read the cases together. Critical Indigenous legal scholars have asserted the inherent contradictions of the Western legal order and the ongoing assertion of Indigenous law to rule of peoples and land in Australia.²⁵ Dodson famously describes Australia as a nation on shaky grounds, arguing that after Mabo ‘the foundations of the sovereignty of the Australian nation-state remain a mystery’.²⁶ Similarly, Moreton-Robinson finds that the Mabo decision ‘reinscrib[es] the legitimacy of the sovereignty of the white patriarchal nation-state’ and ‘affirms white identity by creating in law a hybrid of settlement that diminishes but does not erase terra nullius’.²⁷

Mabo has been analysed by various cultural legal and decolonial scholars whose analysis informs how we read affect in these cases. For example, Rush uses a Freudian analysis to suggest the concept of Native Title is anxious,²⁸ while Pether considers the ‘schizophrenic analysis’ of native title jurisprudence²⁹; Berns considers the rhetoric that judges use individually in Mabo;³⁰ while more recently, Chalmers speaks to the anxiety of metaphor in Australian settler law.³¹ Giannacopoulos, who also brings in decolonial traditions, reads both Mabo and Love together and argues that Love continues the colonial silencing of Indigenous sovereignty of Australian settler law.³² In making this argument, Giannacopoulos’s relies on her theorisation of the colonial nomopoly (a monopoly of nomos/law that subjugates Aboriginal and Torres Strait Islander laws) to expose the obfuscating and exploitative strategies of the colonial state in its imposition of new legal borders and continual policy moves.³³ Like Giannacopoulos we are also interested in exploring the tricks and subterfuge of colonial law,³⁴ but our particular interest is in undertaking a close reading of both cases using the affective-aesthetic framework of tone as explored in more detail in the next section.³⁵ For this reason, our work is best understood as being situated within Said’s corpus. Said has made enormous interventions in understanding the material, cultural, and epistemic consequences of colonial power, and his identity and work around Palestinian emancipation speaks particularly to his understanding of settler-colonial relations and their political and aesthetic natures.³⁶

While there has been scholarship that considers affective and anxious dimensions in Mabo, considering tone (and the tone of settler anxiety specifically) in legal judgment is new. Further, considering the previous scholarship that touches upon anxiety in settler law, we see tone as having an organising effect on that scholarship. Ngai indicates that reading tone is ‘particularly conducive to the analysis of ideology’³⁷ and we see it as a powerful way to deconstruct the ideologies behind legal judgment, in particular because it disrobes legal judgment from an objective and neutral fixity.

D Reading tone

We draw on the work of literary theorist Sianne Ngai, who in her 2005 book Ugly Feelings, makes the case for paying attention to tone.³⁸ Ngai’s initial theorisation of tone provides a framework to explore a series of ugly feelings and the book as a whole is a ‘mediation between the aesthetic and the political […] – that is, signs that not only render visible different registers of problem (formal, ideological, sociohistorical) but conjoin these problems in a distinctive manner’. Consequently, tone, is an ‘affective-aesthetic’ concept that is ‘promiscuously used yet curiously underexamined’.³⁹ We also underscore that point in relation to the law.⁴⁰

Tone, writes Ngai, is a ‘literary or cultural artifact’s feeling tone: its global or organizing affect, its general disposition or orientation toward its audience and the world’.⁴¹ It is ‘a global and hyperrelational concept of feeling that encompasses attitude’.⁴² In this sense tone can be understood as

the formal aspect of a literary work that makes it possible for critics to describe a text as, say, “euphoric” or “melancholic,” and, what is much more important, the category that makes these affective values meaningful with regard to how one understands the text as a totality within an equally holistic matrix of social relations.⁴³

The dynamic of being both a subjective and an objective aspect of a text is central to the concept of tone, such that tone ‘is the dialectic of objective and subjective feeling that our aesthetic encounters inevitably produce’.⁴⁴ There is both a specificity and a generalness to reading tone in the sense that it is specific to each critic’s reading but also that this reading relates to a work’s broader context.

Our approach to reading tone draws also from the work of Edward Said and his articulation of the worldliness of texts.⁴⁵ As a result, we are treating both Mabo and Love as ‘enmeshed in circumstance, time, place and society – in short, they are in the world, and hence worldly’.⁴⁶ Further, like Said, we take the position that criticism ‘is always situated’ and ‘is by no means … value-free’. Rather it ‘is to arrive at some acute sense of what political, social and human values are entailed in the reading, production, and transmission of every text’.⁴⁷

For example, consider the affective registers inside a national anthem. In the Australian example ‘young and free’, ‘golden soil and wealth for toil’ and ‘girt by sea’ evoke powerful questions in framing national identity. According to these lyrics, Australia is a ‘young’ nation and the tone that these words conjure relates to the imagery of youth, vigour, hopefulness in national building and migration. Tone plays a significant role here, but it also tells us that tone is contextual. If one considers the affective register against the struggles for justice for Aboriginal and Torres Strait Islander peoples, the terms ‘young’ and ‘free’ seem both absurd and insulting. This is explored by hip hop artist and Aboriginal musician and activist Briggs where he states:⁴⁸

Since all children in detention in the Northern Territory are Aboriginal and we are the most incarcerated people on Earth, we don’t feel particularly free. And as for young, we’ve been here for 80,000 years.

On advice from the Executive, the Governor-General changed the lyrics on 1 January 2021 from ‘young and free’ to ‘one and free’. This change does not effect a tonal turn: the lyrics continue to be hopeful and aspirational, and the anthem continues to be punctuated by the material lived reality of Indigenous lives. This example speaks to the shifting nature of both reading tone and national identities and it shows us why reading tone is useful.

Tone reveals both conscious and subconscious codes inside of the language and context of these cultural artefacts: what judges and legislators reveal in the words they use and omit, in their metaphors, and their reasoning. Tone operates at multiple levels: what the writer shows us, at the things revealed inadvertently about the writing, and how that text is situated in the world around it.

Anxiety and settler anxiety in legal texts

While there are various understandings of anxiety,⁴⁹ as mentioned we are drawing on the theorisations of anxiety by Sianne Ngai and settler anxiety by Lisa Slater. For Ngai, anxiety is one of Bloch's ‘expectant emotions’ that ‘aim[s] less at some specific object as the fetish of their desire than at the configuration of the world in general, or (what amounts to the same thing) at the future disposition of the self’.⁵⁰ When it comes to the affect of anxiety, Ngai argues that there are both temporal and spatial dimensions to anxiety. Temporal in that anxiety is a feeling that implies ‘some form of futural orientation of conjecture or […] an experience of suspension or delay’.⁵¹ Conceived temporally, anxiety is an affective response to a projected futural event and is ambivalently structured by ‘the temporal dynamics of deferral and anticipation’.⁵² Anxiety has a spatial component because it is also an affective response that is projected outwards or displaced onto others rather than viewing the feeling as located within oneself.⁵³

Slater uses Ngai’s framing and casts this anxiety to settlers. Slater turns towards covert acts of violence to explore the intricate spaces that colonial violence pervades. Slater tells us that ‘[g]ood white people’s anxiety – both the relentless worrying, guilt and pitying of Indigenous people, and the discomfort ignited by Indigenous political agency – is much more telling than the stories that are told about bad racists’.⁵⁴ Slater identifies the anxiety in two ways:

Firstly, the guilt, fretting and pity, which displaces the political encounter with the familiar settler response to worry about and try to fix the ‘Indigenous problem’. It could be considered a practice of emotional fortification to maintain one’s sense of an ethical self. Secondly, an encounter with the political that disturbs and interrupts settler authority.⁵⁵

It is a combination of these dynamics of anxiety that we believe makes Ngai’s account of anxiety compelling to apply to the law. There are relevant parallels in the structuring role that Ngai sees anxiety doing in literature, film and philosophy to settler law in Australia.⁵⁶

Both Mabo and Love are cases where the temporal dynamics of deferral and anticipation and spatial dynamics of displacement and dislocation are very much alive. The facts that give rise to these cases are a result of Australia’s settler-colonial history whereby Australian sovereignty and thus the judicial authority of the High Court is predicated on Indigenous dispossession based on the falsity of terra nullius. As a result, the context in which judicial authority is exercised in these cases is embedded in a temporal connection that involves both the deferral and anticipation of justice and the spatial dynamics of displacement and dislocation of Aboriginal and Torres Strait Islander peoples. Further, in this context it is not a metaphor of projection but rather a material reality that underlies the context of these legal judgments and the very ability of a High Court to be adjudicating questions of native title and alienage in the nation-state of contemporary Australia. While legal judgment in the common law has an overall sense of anxiety, how judgment is written in a settler society reveals a particular kind of anxietal affect.

A danger of using a concept like anxiety is the sense of helplessness and disempowerment that is aligned to it that might suggest a lack of complicity and responsibility in the settler.⁵⁷ To this we recognise the violence and harm that is tied to colonial violence. Slater tells us that ‘In anxiety we experience the world as slipping or drawing away: one feels separate from the world. Again, as Ngai outlines, one experiences a “powerful powerlessness”’.⁵⁸ Our concern here is that we foreclose the immense material and epistemic violence of colonial and settler subjectivities. Anxiety might reveal a deep sense of powerlessness, but the duality is that the powerlessness is borne from domination. Slater argues that settler anxiety ‘is provoked by the proximity to, and thus the necessity to share social space with, Indigenous people: their material embodied world and social reality’.⁵⁹ In doing so, and in not succeeding in eliminating Indigenous people in the sense that Wolfe describes,⁶⁰ the ways we construct our cultural worlds reveal our situatedness as settlers. That is, settler anxiety reflects that as settlers we can’t escape the fact that we sit on stolen land, and indeed, there are others in our proximity who we know claim a more authentic situatedness, despite our attempts to steal, eliminate, silence, and invisibilise.

E Justice Brennan, legal fictions, and the skeletal principle in Mabo

The Mabo case, and specifically Brennan’s judgment, is the exemplary case study of reading settler anxiety in legal jurisprudence in Australia, especially because of how it tracks through in all subsequent judgments that deal with settler-colonial relations. Brennan wrote the lead judgment and most aspects of his judgment were endorsed by the majority of the bench. He came from a prominent Catholic family with strong Jesuit connections. His father was a Queensland Labor Party politician, lawyer and supreme court judge. In his swearing in ceremony, as Chief Judge of the High Court in 1995 Brennan swore an oath of loyalty to the Queen, and to the Australian nation (which we can take to be necessary), which he described as ‘young, free and confident’.⁶¹ This mirrors the language of the national anthem and offers a sense of optimism. The young are still finding themselves: being free they are not as burdened by the conventions of the past, and being confident they can be intrepid. He contrasts this with ‘the priceless heritage of the common law of England’.⁶² In considering tone, we can consider those things that are unsaid. That is – in contrasting the youth of the Australian nation with the heritage of the English one, nowhere is the staggering history of Aboriginal and Torres Strait Islander laws mentioned. As we explore below, this is more likely understood in the realm of custom. Typical of High Court Justices in his era Brennan was made a Knights Commander of the Order of the British Empire.

The length of the Mabo decision is the first point to note, running at over 200 pages, and Brennan’s judgment occupies about 80 pages. The length suggests the decision has been considered extensively, but it also augurs a sense of uncertainty. Brennan’s judgment follows a structure which starts with a geography of sets of the Murray Islands, and a Western history of Meriam peoples encounters with Europeans. He concludes, seemingly because of the presence of ‘sorcery, magic, and taboo’, that ‘Meriam society was regulated more by custom than by law’.⁶³ There is a reliance on aesthetics here by Brennan to build his legal case of separating ‘custom’ from law. Brennan relies on imagery, metaphor, and other textual devices that manifest Eurocentric and orientalist tropes. In particular Brennan’s use of sorcery, magic, and taboo is reliant on Western cultural images of an othering that is less-than-human or at least less than the European mind. The aesthetics reinforce the hierarchy of law over custom – which sets up the jurisprudence of Native Title for the 30 years’ that follows: easily extinguishable, with limited rights, and always lesser than the Radical Title of the Queen.⁶⁴

Brennan’s judgment continues with an articulation of the introduction of English law and English notions of sovereignty, common law, and land ownership. It is here that he conjures the metaphor of skeleton which has become a principle of law:

recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.⁶⁵

He also circles around the common law device of the ‘legal fiction’, which is explored below. Brennan states that,

Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.⁶⁶

Further on he states that:

Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country … it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own … The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.⁶⁷

The use of the skeleton is a metaphor imbued with fear and anxieties. Skeletons represent death, mortality, and structure. They are imbued through Catholic imagery and iconography in its history as a momento mori – a reminder of our mortality, which Brennan has conjured in textual form. Brennan invokes the skeleton as principle, and law as body. While Brennan formally uses skeleton here to refer to structure and stability, the image invokes more than a fracture, it reminds us of death, mortality, and decay. What’s at stake, he tells us, is the death of our system, and to avoid this death – just as we cannot turn away from native title altogether, nor can we give it place enough to thrive. He invokes fracture, destruction, and the threat to peace and order as all outcomes of doing anything more provocative that a minor recognition of native title. Importantly too, as a good white settler, Brennan is prevented from a finding that is more ambitious or just through the language of impossibility and being bound as a prisoner of its circumstances. Brennan has a myriad of options that are entirely possible, despite his assertion. Indeed, if the common law can exist in Australia with ‘fictional impediments’ for hundreds of years, then it is entirely possible that inconsistencies and incompatibilities will not break the skeleton. What Brennan is framing as an impossibility, like the moves of all ‘good’ settlers, is a ‘reluctant’ unwillingness to share or cede power (‘I would if I could’). Indeed, the skeleton ultimately is fractured not because of the recognition of native title, but because it reveals the Crown’s weakness in its claim of sovereignty – this is the real cause of anxiety.

And perhaps just like the skeleton, even Brennan’s use of the legal fiction of terra nullius is an anxious sleight. The legal fiction is a device used in the common law tradition to allow for the law to create alternative facts (as in, lies) to suit the application of the Law used in the common law for centuries. There have been notable critics throughout the history of the use of legal fictions,⁶⁸ and with respect to colonisation the body of modern legal analysis since Mabo refers to the legal fiction of terra nullius. In the judgment itself Brennan refers to Stephen’s 1847 judgment in Attorney-General (NSW) v. Brown to discuss the early Australian case law on sovereignty. Stephens refers to certain fictions, but it’s clear that terra nullius wasn’t one of them:

The Sovereign, by that law is (as it is termed) universal occupant. All property is supposed to have been, originally, in him. Though this be generally a fiction, it is one ‘adopted by the Constitution to answer the ends of government, for the good of the people.’ (Bac Ab ubi supra, marginal note.) But, in a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction.⁶⁹

Under the Doctrine of Discovery, ‘non-Christian peoples did not possess the same human and natural law rights to land, sovereignty, and self-determination as Christian peoples’.⁷⁰ At what point did terra nullius become a legal fiction? In 1847 Stephens tells us that the Doctrine of Discovery was no fiction for the questions of British colonial conquest, but a fiction for landowners in England. By 1992 Brennan treats terra nullius as a long-established legal fiction that he tells us that can no longer be sustained. The sleight here is skirting over the illegality and racism of the doctrine of discovery and rendering it into the more benign and palatable legal fiction. There’s a weird movement between doctrine and fiction here: on the one hand the common law system tells us that legal fiction needs to exist as an administrative act to ensure the consistency of the law and legal application (ie English landholders in relation to the King), and on the other hand Brennan infers that legal fictions have also existed to maintain acts of colonial violence – and a double fiction exists by considering both in the same stroke.

Stephens J intimates that the occupation of Australia was no fiction, while in 1992 Brennan tells us that the justification of occupation as terra nullius was indeed a legal fiction. Since Mabo scholars have demonstrated that terra nullius was not a concept used in Australian legal discourse in the eighteenth and nineteenth centuries.⁷¹ At what moment was the doctrine of discovery a legal truth and at what moment did terra nullius become a legal fiction? It appears that at conquest and invasion Britain was not concerned with questions of the legality of conquest, but as the Australian legal order has become established the stench of the illegality of conquest has necessitated a reckoning with this question. This move has all the hallmarks of anxiety that Ngai refers to: in particular, there is a deferral and a displacement in the obfuscation of moving from discovery as legal truth to terra nullius as legal fiction. Bringing terra nullius into Australian law as a modern creation and transposing it back to 1788 shows the deep anxieties of the illegitimacy of that legal order.

F Love and Thoms

Mabo plays a key role in all judgments in the Love case. The ratio from Mabo provided the majority of the Court with the grounds to affirm Aboriginal and Torres Strait Islander peoples connection to Country outside of the native title case law context. While their individual reasons differed, 3 members of the majority (Bell, Gordon and Edelman JJ) found that Aboriginal connection to Australian land and waters meant that Aboriginal people couldn’t be considered to fall within the ordinary meaning of the word ‘alien’ because they could not be considered to belong to another place. Nettle J approached the issue differently, arguing that the Crown has ‘a unique obligation of protection’ to Aboriginal people such that they were not constitutional aliens. A further commonality of the majority reasoning was an emphasis on Indigeneity forming the grounds for Aboriginal Australians falling outside the aliens power rather than that of race.

The language, cadences, and justifications may be different between the individual judgments, but the Love case shows us that the ‘organising affect’ of the case remains a tone of settler anxiety. The tone of settler anxiety of the Love case points towards a continuation of the settler denial to cede and share power with Aboriginal and Torres Strait Islander peoples. It also suggests a latent acknowledgment of the illegitimacy of settler legal institutions.

Although Bell J was authorised to state the majority position, the 7 individual judgments and their contents suggest the judgment is dispersed in a way that is not the ordinary practice of the Court. The divided reasoning of the Court is particularly notable given Kiefel. Cj’s emphasis on the importance of unanimous reasoning soon after becoming Chief Justice.⁷² Wood, writing about Love, notes that:

The seven separate judgments demonstrate perhaps the Court’s discomfort in attempting to reconcile the irreconcilable, cognisant of their broader role in preventing or at least minimising the excesses of the other limbs of government.⁷³

Another impact of the choice to write individual judgments suggests that ‘the law’ itself is unsettled, which works to undermine the certainty with which all of the judgments are written and adds to the overall impression of disarray.

Edelman J’s judgment is a striking example from the majority where the language of the judgment oscillates between the lyrical and the dispassionate. Edelman begins his judgment with references to exclusion, exile, and hope. For example, he writes:

Throughout history, the lives of dispossessed and exiled persons and their descendants have been sustained, and their identities shaped, by the hope of returning to their places of belonging. The identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia.⁷⁴

The reference to dispossessed and exiled persons also take on a particular resonance when we read them with the knowledge that Edelman J is Jewish and is deeply affected by anti-Semitism and the Holocaust.⁷³ As a result, it is possible to read Edelman’s judgment as writing both from, and against a history, of dispossession and exile. There is an aspect of dispositioning and displacing in Edelman’s framing of the specific legal issues in a broader global context of exiled persons, and yet importantly, Edelman can’t escape his position as a settler and officer of colonial law. In part, Slater’s analysis of white settler Australians, noting that Edelman does not fit easily into this category, ‘who are troubled by colonial history and “Indigenous issues”, and want for a more just society and future’⁷⁵ speaks particularly to the framing of Edelman’s judgment.

Edelman juxtaposes the effusive language set out above with a clinical turn in an abrupt conclusion on the question of who can be included in the body politic: ‘The antonym of an alien to the community of the body politic cannot be a “citizen”. It is a “belonger” to the political community’.⁷⁶ Here Edelman has created a new legal subject in Australian common law – the belonger – without giving any detail or legal logic to this concept beyond a mere footnote – which is a departure from the common law’s purported method of legal reasoning. The quest Edelman embarks on – to determine categories of ‘belonging’ – raises far more questions than what he is seeking to determine: are settlers ‘belongers’ to the body politic and is that category of ‘belonging’ different to the spiritual ‘belonging’ that Edelman refers to earlier? Edelman’s reasoning here forms part of what Jeanine Leane writes about as the ‘continuing settler quest to write a nation’ and the ‘settler quest to belong’ that works to contain Aboriginal people.⁷⁷ As a result, the nature of his legal reasoning is anxious and reveals the deeply ingrained settler desire to belong, rather than a benevolent move to describe Indigenous belonging.

Nettle J’s judgment takes a different path in its focus and style. Nettle devotes considerable time in setting up the facts of the case to tracing the identities and residency statuses of Mr Love and Mr Thoms to Australia and their families.⁷⁸ Nettle’s judgment culminates in his reliance on Mabo [No 2]’s holding that the common law has always recognised Aboriginal rights and interests in lands and waters under Aboriginal law as ‘accommodated’ by the common law of real property. As a result, for Nettle:

To classify any member of such an Aboriginal society as an alien would have been to recognise that the Crown had power to tear the organic whole of the society asunder, which would have been the very antithesis of the common law's recognition of that society's laws and customs as a foundation for rights and interests enforced under Australian law. Consistently, therefore, with its recognition of Aboriginal societies as the source and sanctuary of traditional laws and customs, the common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to those societies and to each member in his or her capacity as such.⁷⁹

To suggest that it is contrary to the nature of the common law to exclude Aboriginal people from the body politic is either naïve or misleading about the history of the common law and its relationship with Aboriginal people. The dramatic tone and Biblical language that Justice Nettle uses is jarring, especially to suggest that to hold Aboriginal people are aliens (as indeed 3 of the judgments did) is ‘to recognise the Crown had power to tear the organic whole of the society asunder’. Maria Giannacopoulos further draws a connection between Love and Mabo through Justice Nettle’s judgment, arguing that both cases rely on ‘the rupturing motif conjured by the words “tear” and “fracture”, used in 2020 and 1992, respectively’ such that Love can be seen as a continuance of the ‘form of colonial silencing’ we see in Mabo.⁸⁰ We suggest that this continuance is also present in the case’s affective disposition – that of settler anxiety.

On the one hand, Nettle affirms the decision in Mabo of the common law’s recognition of native title. On the other hand, Nettle – in so emphatically appealing to the common law as ‘must be taken always’ to have understood the Crown’s obligation to protect Aboriginal society – upholds yet another legal fiction. As Irene Watson, who has written extensively of the lies at the heart of the Australian common law, queries

If we were to forgo the absurdity of the lie that we had become British subjects for a moment and consider the treatment the ancestors received while deemed British, many questions arise. Why were the common law rights of indigenous peoples – the right to land ownership, and the fundamental human right to life – not protected?⁸¹

It is a question that Nettle sidesteps in appealing to the common law’s consistency over time. There is also the sense from Nettle’s judgment of the righteousness or morality of the common law that is taken at the cost of the truth. Just as in Mabo, in upholding the enduring ‘goodness’ of the common law Nettle’s judgment is also underpinned by the same anxiety in the fragility of the system of laws such that to admit inconsistency over time would be to reveal the law’s capriciousness.

A similar dynamic can be seen in the other judgments in both the majority and minority in the way that the topic of the justiciability of the claim of settler sovereignty is addressed. There is a dissonance in the repeated recognition of Indigenous peoples’ ongoing connection to Country by the Court and the repeated denial of Indigenous sovereignty that adds to our reading of the tone of the judgment as one of settler anxiety. For example, Gordon J begins her judgment as follows:

The fundamental premise from which the decision in Mabo v Queensland [No 2] proceeds – the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.⁸²

In articulating a ‘deeper’ truth – noting that the language of depth suggests a sense of origin and points towards a moral claim – Gordon lays the foundation for an argument for Indigenous sovereignty. Yet later in the judgment Gordon makes it clear that this ‘deeper truth’ is not to be interpreted as a recognition of Indigenous sovereignty:

Recognition of Indigenous peoples as a part of the ‘people of Australia’ is directly contrary to accepting any notion of Indigenous sovereignty persisting after the assertion of sovereignty by the British Crown. Recognition of Indigenous peoples as part of the ‘people of Australia’ denies that Indigenous peoples retained, or can now maintain, a sovereignty that is distinct or separate from any other part of the ‘people’.⁸³

Gordon’s judgment, and the Love judgment more broadly, conforms with Lisa Slater’s analysis of the political work that settler anxiety is doing. Slater draws on Aileen Moreton- Robinson’s theorisation of white possessive logic, writing that:

Again and again, settlers re-enact territorialisation by identifying as modern subjects – the present and future – thus justifying the right to claim possession, denying Indigenous sovereignty and governing for everyone. The country belongs to those who came after, the settler.⁸⁴

This re-enactment of territorialisation is present in Gordon’s denial of Indigenous sovereignty. Gordon not only repeats this denial, but also articulates it in reference to both the past (‘retained’) and the present (‘can now maintain’) when she denies Indigenous sovereignty. The reference to maintain, with its connotation of continuance, projects that present into the future with the effect of articulating a future that emphasises settler belonging.

Tone in the minority judgments

Turning now to some examples of the tone of settler anxiety in the minority judgments, we see similar dynamics at play. For example, Kiefel CJ concludes that Love and Thoms are aliens because they are not citizens under Australian statute, setting up a dichotomy between alien and citizen (as opposed to Edelman’s dichotomy of alien and belonger, explored earlier in the article). The tone in which she makes her case is worth noting in some detail, particularly where she addresses the plaintiff’s argument and the claims that to be an alien means to belong elsewhere.

Closer to the heart of the plaintiffs’ case is the erroneous assumption that the connection to land necessary for recognition by the common law of native title may be used in an entirely different area of the law, to answer questions of a constitutional kind about the relationship between an Aboriginal group and its members and the Australian body politic. Its use for such a purpose is wrong as a matter of law and of logic. The error is compounded by the fact that race is irrelevant to the questions of citizenship and membership of the Australian body politic.⁸⁵

Kiefel begins with a terseness that cannot hide an irritation at the plaintiff’s case and her writing has a sense of crescendo. In the space of the first paragraph, the escalation from ‘erroneous assumption’ to ‘compounded error’ creates a sense of a panicked need for order and control. Kiefel isolates the ‘issue’ to be determined as confined to native title law only and does so in clipped sentences that convey a matter-of-fact logic that purports to not only make her reasoning beyond question but also work to avoid dealing with the broader context in which the question of Aboriginal and Torres Strait Islander peoples’ membership to the Australian political community arises. This is exemplified in the description of Indigenous connection to Country being relevant to the question of alienage as an error ‘compounded by the fact that race is irrelevant to the questions of citizenship and membership of the Australian body politic’.⁸⁶ Labelling this claim as a ‘fact’, also suggests an anxiety when read with the knowledge that there are several scholars, and several judgments in the majority decisions of the Love case, that argue to the contrary.

Kiefel’s terseness arguably reiterates an anxiety in avoiding the complexity that thinking about belonging in the settler state of Australia requires, because to do so would openly require the Court to question its legitimacy, and the broader authority of the Constitution itself – particularly noting the judgment was written in a political context where the Uluru Statement from the Heart acknowledges the sovereignty of Indigenous peoples.⁸⁷

As a final example in the Love decision, we suggest that in Gageler J’s reasoning we also see a tone of settler anxiety in the movement between deferral and anticipation in his judgment. This is particularly evident in Gageler’s exposition under the subheading ‘Rejection of the plaintiff’s argument’ and the following paragraph in particular:

Morally and emotionally engaging as the plaintiffs’ argument is, the argument is not legally sustainable. The common law antecedents of the Constitution provide no basis for extrapolating from common law recognition of a cultural or spiritual connection with land and waters within the territory of the Commonwealth to arrive at constitutionally mandated membership of or connection with the political community of the Commonwealth. The considerations which informed the common law development in Mabo cannot be transformed by any conventional process of constitutional interpretation or implication into a constitutional limitation on legislative power.⁸⁸

Gageler, like Brennan in Mabo, begins his explanation with deferral. He delays explaining his reasons until after articulating his recognition of the importance of Mabo and his state of the double negative of being ‘not unmoved’ by Aboriginal connection to Country and settler dispossession of Indigenous peoples.⁸⁹ Further, by suggesting that the plaintiff’s argument is ‘morally and emotionally engaging’ but ‘not legally sustainable’, Gageler suggests that, in this case, morality and emotions are separate from the law. Yet, as Manderson has argued, morality and emotion are woven into the very fabric of the law⁹⁰ and in this instance, we suggest that it can be read as a further example of settler anxiety as ‘provoked by the proximity to, and thus the necessity to share social space with, Indigenous people’.⁹¹

Examining the spectrum of judgments in the Love decision demonstrates that in 2020 settler anxiety continues to be a dominant tone in settler judgments about Aboriginal and Torres Strait Islander peoples. The parallel between the tone in the Mabo decision decided nearly 30 years beforehand is striking and more importantly, it suggests that tone is as Ngai tells us ‘always “about” something’⁹² – in this case, we suggest that ‘something’ is the inability of settler law to reckon with its shaky grounds.

G Conclusion

Legal judgments cannot be read as neutral, rational, and objective texts. One way we can see this is by analysing the tone of case law to consider what it reveals. Ngai’s theorisation of the tone of anxiety, and Slater’s of settler anxiety, offer particularly useful tools to consider the implications of High Court legal judgments in Australia with respect to settler relations with Aboriginal and Torres Strait Islander peoples. We look at the words, the metaphors, the expressions, the cadences, the omissions used in the language of the judgments and we consider their worldliness to situate the judgment in time, place and history. In looking at Brennan’s judgment in Mabo, and the various judgments in the Love case, we see that both cases reveal an anxiety about the status of the political and legal system we currently know as Australia. The focus in both cases on boundaries and limits of Indigeneity show us a deep-set anxiety about the potential for the legal system to come undone in different imaginings of law. In Mabo, the skeletal principle best illustrates the anxieties of settler judges to re-affirm the legitimacy of the colonial legal order. In Love, while the anxieties are fragmented in multiple directions, Kiefel’s boundary setting (‘erroneous assumption’; ‘wrong as a matter of law and of logic’) similarly demonstrates the need for ongoing control over the colonial order’s legal affairs. The Love decision grants spaces for the status of Indigenous peoples in the Australian legal system, and in the moment that it grants those spaces it instantly limits what the bounds of that space should be. Both cases either ignore, limit, or reduce Indigenous notions of sovereignty.

This article demonstrates that these cases have a tone of settler anxiety – a particular kind of anxiety that settlers have in settler-colonial societies, and that anxiety is borne from a deep knowing that there are others with a more authentic situatedness to land than what settlers have. Settler anxiety reveals the imposed colonial legal order’s fraudulence, and then the strategies of deferral and displacement that are used to contain ongoing Indigenous expressions of resistance.

Our article, in traditions greatly influenced by Said, offers an analysis of key decisions of Mabo and Love. Time and again the concern that underpins the anxiety we are exploring is the sharing of power: apart from Brennan’s skeletal principle, the years that followed Mabo saw a series of measures passed into legislation to further contain the possibilities of Native Title being read expansively. Reading the tone of the Love case suggests despite the time that has passed since the Mabo decision, the ‘organising affect’ of the judgment remains one of settler anxiety as demonstrated in the prioritising of settler belonging and the inability of settler law to reckon with its illegitimacy. At the time of writing this article, in the dialogue about the Voice Referendum, the assurances given by the Federal government were that the Voice would have no substantive powers beyond consultation, and there would be no right of veto. And even still, anxious settlers strongly rejected the proposition. Acknowledging that our legal system is robust, and that the skeleton would not break in sharing and ceding power, what might the alternatives look like? If settlers consider the Uluru Statement from the Heart alongside Indigenous strategies of recognition, resurgence, and refusal, questions emerge about what role settlers should play who are concerned about justice in a Colonial legal system. A starting point that we’ve explored in this article are the affective layers of Mabo and Love that unsettle the claims of objectivity and neutrality that underpin colonial law. Further we see potential for future scholarship in reading the tone of settler anxiety in colonial law’s many instruments, from the Constitution to the archives, to judgments in International Law. Even though the tone of settler anxiety has an aesthetic form, reading for settler anxiety moves beyond the aesthetic to the political domain. The tone of settler anxiety reveals a reluctance to material demands on power-sharing. By being explicit about the place of tone in settler judgment, we open a conversation about what a different tone might look like in settler legal writing, one where settlers acknowledge standpoint and power imbalances, and their manifestations on questions of justice.

Acknowledgements

The authors would like to thank the anonymous reviewers for their helpful comments and suggestions as well as Heather Roberts and the participants of the ANU critical writing workshop in 2023 who generously provided comments on earlier versions of this paper. Any errors remain solely those of the authors.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Sarouche Razi

Sarouche Razi is an interdisciplinary researcher and legal practitioner with expertise in the legal assistance sector, creative arts practice in law, critical legal and pedagogical theories, police and state accountability, and decolonising the law. He has worked primarily in legal service delivery in the community controlled and Aboriginal community controlled sector, and has been involved in significant court representation relating to historical injustices, and deaths in custody for First Nations Australians. Sarouche teaches a prison legal course at the Australian National University where he teaches on abolition, decarceration, and critical pedagogy. He is completing his Doctoral Thesis exploring biomythography as a method for legal writing, and mnemocratic power to describe (settler) state control over memory and process in the Coroner’s court. He also works with the NSW Legal Assistance Forum, and Tangata Restorative Justice, an Oceanic led approach to restorative justice in Melbourne. Sarouche’s first graphic novel, co-written with Dr Anne MacDuff and Kirsten Hoffman, Once upon a time in Australia: conversations about how our MeToo movement exposed the troubles of truth in law is published with Counterpress (https://counterpress.org.uk/publications/once-upon-a-time-in-australia/#1637942748124-84bd907a-c40e887e-292b).

Amy Hamilton

Amy Hamilton is a PhD Candidate and member of the ANU Centre for Law, Arts and the Humanities. Her research focuses on Australian citizenship and the broader questions of belonging, identity and attachment that citizenship provokes.

Notes

1 Brennan refers to this duty all the way back to his swearing in ceremony in 1981 in his contrast of settled principle against the development of law, suggesting its importance to Brennan since he took office. See Ceremonial Sitting on the Occasion of the Swearing in of the Honourable Mr Justice Brennan as a Justice of the High Court of Australia, Canberra, 1981, pp 14–15. (‘Brennan swearing in speech’).

2 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 29 (Brennan J), Authors’ emphasis (‘Mabo’).

3 Love v Commonwealth of Australia Thoms v Commonwealth of Australia (2020) 270 CLR 152 at 178 [38] (Kiefel CJ), Authors’ emphasis (‘Love').

4 We use the terms Indigenous here to include all Aboriginal and Torres Strait Islander peoples. For a discussion on terminology, please see the AIATSIS note on this: https://aiatsis.gov.au/explore/indigenous-australians-aboriginal-and-torres-strait-islander-people.

5 Pelly (2020).

6 Ngai (2005).

7 Slater (2019), Slater (2020).

8 Ngai (2005), p 28.

9 Saunders (2020).

10 Kwaymullina (2017), p 16.

11 Razi (2023) doi:10.1080/1535685X.2023.2209445.

12 Mabo at 42 (Brennan J).

13 Watson (2017), pp 475–76.

14 Watson and Motha (2022).

15 Pether (1998), p 118.

16 See Giannacopoulos (2020), pp 741–44.

17 Australian Bar Association, ‘Australian Bar Association Calls for Respectful Discussion of the Decision in Love’, https://austbar.asn.au/news-media/australian-bar-association-calls-for-respectful-discussion-of-the-decision-in-love, 17 February 2020. See also other commentary noted in Synot (2020).

18 Synot (2020).

19 Love at [81] (Bell J).

20 Behrendt (2002); see also Rodoreda and Bischoff (eds) (2021), p 3; Love at 44 [127] (Gageler J).

21 On the point about Love’s controversy and political implications, see Synot (2020).

22 Lynch and Williams (2018), pp 1135–38.

23 See, for example, Behrendt (2002), Berns (1996); Pether (1998).

24 See, for example, Wood (2021a); Wood (2021b); Synot (2020); Arcioni and Thwaites (2020).

25 See, for example, Watson (2015); Dodson and Strelein (2001); Moreton-Robinson (2015); Martin and Mirraboopa (2003).

26 Dodson (2021), p 209.

27 Moreton-Robinson (2015), p 68.

28 Rush (1997), p 149.

29 Pether (1998), p 126.

30 Berns (1996), p 105.

31 Chalmers (2022).

32 Giannacopoulos (2020).

33 Giannacopoulos (2019), p 117–118; Giannacopoulos (2011).

34 Giannacopoulos (2019), pp 127, 131.

35 For a reflection on the relationship between affect and close reading, see Fennell (2023).

36 Said (1978); Said (1995).

37 Ngai (2005), p 43.

38 Ngai (2005).

39 Ngai (2005), p 41.

40 While we have encountered references to tone in analyses of case law such as Berns (1996) p 107 we argue that these references are similarly underexamined.

41 Ngai (2005), p 28.

42 Ngai (2005), p 43.

43 Ngai (2005), p 28.

44 Ngai (2005), p 30.

45 Said (1983).

46 Said (1983), p 35.

47 Said (1983), p 26.

48 Briggs (2019).

49 See generally, for example, Mawson (2019).

50 Ngai (2005), p 210.

51 Ngai (2001), p 15.

52 Ngai (2005), p 210.

53 Ngai (2005), p 210.

54 Slater (2020), p 268.

55 Slater (2020), pp 274–75.

56 Ngai (2005); See also Reichman (2017) in relation to tone, reasonableness and the law generally.

57 See also Giannacopoulos (2011).

58 Slater (2020), p 278.

59 Slater (2020), p 274.

60 Wolfe (2006).

61 Brennan (1995).

62 Brennan (1995).

63 Mabo at 18 (Brennan J).

64 Elsewhere this becomes a debate between Law and Lore, but what is clear in all the framing, is that there is a hierarchy and the Western conception of law sits atop it.

65 Mabo at 43 (Brennan J), Authors’ emphasis.

66 Mabo at 45 (Brennan J), Authors’ emphasis.

67 Mabo at 29–30 (Brennan J), Authors’ emphasis.

68 Most notably Bentham. See Wacks (2012), p 202.

69 Attorney-General (NSW) v Brown (1847) 1 Legge 312 cited in Mabo at 27 (Brennan J), Authors’ emphasis.

70 Miller et al. (2010), p 8.

71 Fitzmaurice (2007); Chalmers (2020).

72 Kiefel (2017), pp 7–8; Lynch and Williams (2018), pp 1135–38.

73 Wood (2021a), p 181.

74 Love at 131 [391] (Edelman J).

75 Slater (2020), p 818.

76 Love at 132 [394] (Edelman J).

77 Leane (2014), p 2.

78 Love at 73 [222]-[235] (Nettle J).

79 Love at 93–94 [272] (Nettle J), Authors’ emphasis.

80 Giannacopoulos, (2020), p 743.

81 Watson (2002), p 263.

82 Love at 101 [289] (Gordon J).

83 Love at 122 [356] (Gordon J).

84 Slater (2019), p 20.

85 Love at 11 [31] (Kiefel CJ), Authors’ emphasis.

86 Love at 11 [31] (Kiefel CJ).

87 Uluru Statement from the Heart (2017).

88 Love at 44–45 [128] (Gageler J).

89 Love at 44 [127] (Gageler J).

90 Manderson (2015).

91 Slater (2020), p 280.

92 Ngai (2005), p 8.