11 - Race-ing the Law

Summary

Introduction

Australian law texts conventionally speak of Australia ‘receiving’ the British legal tradition and its ‘long and distinguished heritage’ of rights, freedoms and privileges (ALRC, 2016: para 2.2). They do not dwell on the fact that the British claim over these lands and waterways relied on the fiction that the lands’ First Peoples were legally ‘no one’ – devoid of philosophies, polity, social structures and laws the British considered equal to their superior European ways (Watson, 2014).

As Distinguished Professor Aileen Moreton- Robinson (2021) asks, ‘What logics are at play when fiction is accepted as truth?’ Indeed, First Peoples could only be considered ‘no one’ through the European ideas of race that configured them as inferior, entitling the ‘superior’ British to assume sovereign possession of these lands as ‘settlers’ – not ‘invaders’. This legal fiction has been maintained by colonial and, since then, the Australian courts (Watson, 2014).

Race is a founding logic of Australian law and legal philosophy, and its social, economic and political systems (Moreton- Robinson, 2021). It is evident in the birthing of the nation, distinguishing who belonged and who did not, motivating the new parliament's first substantive laws: the Pacific Island Labourers Act 1901 (Cth) and the Immigration Restriction Act 1901 (Cth), the legal foundations of the ‘White Australia’ policy (Nielsen, 2016; Moreton- Robinson, 2021). Australian law continues to operationalize race as the status assigned ‘to those who are not members of the white race’, rendering First Peoples and people of colour hyper- visible yet separate from and ‘in contrast to the invisible omnipresent white race within law that defines itself by what it is not’ (Moreton- Robinson, 2021). This logic pervades Australian legal, political and social systems as a racial ideology privileging white normativity (Ransley and Marchetti, 2001; Moreton- Robinson, 2021).

Yet race is not talked about – at all or enough – in the teaching and research of the legal academy (Burns and Nielsen, 2018: 2–3). Too few Australian lawyers, judges, academics and researchers demonstrate racial literacy or critique the deployment of race by and in law. Instead, generations of lawyers have learned to ignore the racial logics embedded in legal thinking and jurisprudence (Moreton- Robinson, 2021), duty- bound to the liberal ideals of equality and a colour- blind vision of the rule of law. Law schools and legal education are indeed part of the ‘imperial project’ (Burns et al, 2018: 13; see also Watson and Burns, 2015).