Settler Sovereignty: Jurisdiction and indigenous people in America and Australia, 1788–1836
Harvard University Press, $49.95 hb, 314 pp
The federal government’s intervention in Aboriginal communities in the Northern Territory is, above all, an exercise of power. It illustrates for all to see that the government can interfere with the smallest details of domestic life in a blatantly discriminatory way, regardless of Australia’s international obligations and professed belief in racial equality. It declares to the world that adult Aborigines can be treated like children. Both the present and previous government would argue, in a time-honoured way, that it is for the communities’ own good.
At much the same time, there has been a determined stand against any recognition of Aboriginal traditional law in the courts, even in the consideration of sentencing. If anything, there is less concern at present about customary law than there was in the 1930s and 1940s. The Law Reform Commission’s detailed report on traditional law in the 1980s was ignored by parliaments and politicians, who appreciated that most Australians have little understanding of, or sympathy for, the idea of legal pluralism. The belief that there can be only one set of laws that should apply equally to everyone is deeply ingrained. And yet, for much of our history, we were proud members of an empire, where legal pluralism was ubiquitous, where the common law lived comfortably with a great variety of local legal systems.