Race in Law and Legal Practice

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The Australian conception of race in part grounds its conception of the law, even in 2015. For example, the medical marijuana debate silences the traumas of Aboriginal and culturally and linguistically diverse (CALD) people who are disproportionately vulnerable to, and disproportionately targeted by police for, recreational drug use. The CALD label moreover homogenises the distinct needs of white non-English-speaking background people on the one hand and people of colour on the other. As a result, it homogenises the legal challenges created and contextualised by xenophobia and racism respectively.

Public personages today even imply that 40% of Australians are 'multicultural' (taken from Australian Bureau of Statistics figures) given they have one or more grandparent or parent born overseas, or themselves were born overseas. This percentage obviously includes large numbers of British, German, Italian, and Greek migrants, who are sociologically white in 2015, if perhaps they were not before. White Australian first, second and third generation migrants are not the subject of racism, albeit they may suffer from xenophobia, colourism, misdirected bigotry and classism. This muddies the waters even further: to claim multiculturalism on the basis of figures inflated by white immigrant Australians dilutes more urgent discussions specifically about race, and not ethnicity or migration recency.

Race is convenient to talk about, but not convenient to be embroiled in.

1: Isolation

We view race in isolation. It is the subject of specialised reports, and funding limitations in other reports reduce discussion of CALD issues to offhand references: The Australian Institute of Family Studies "Experiences of Separated Parents Study" (October 2015), the Sentencing Advisory Council "Major Drug Offences: Current Sentencing Practices" (March 2015), the Australian Law Reform Commission "Equality, Capacity and Disability in Commonwealth Laws" (August 2014).

Eatock v Bolt [2011] FCA 1103 was a case which politicised Aboriginality: Mr Bolt in a widely publicised column criticised light-skinned Aboriginal persons for supposedly exploiting affirmative action programmes intended to uplift Aboriginal people. Ms Eatock and eight other Aboriginal persons sued in the Supreme Court of Victoria for racial vilification pursuant to section 18C of the Racial Discrimination Act 1975 (Cth). The judgment considered whether the allegations were reasonably likely to "offend, insult, humiliate or intimidate" Aboriginal people, as per the legislative requirement. The judgment was not constrained to consider the broader sociological and historical factors which fed into the allegations, including the miscegenation resulting from the Stolen Generation and the systematic rape of Aboriginal women by white men which shows that light skin in Aboriginal people is itself the product of racism.

Mabo v Queensland (No 2) [1992] HCA 23, on the other hand, discussed specifically the claim to traditional custodianship of the Murray Islands by the Meriam people in establishing native title. That native title is capable of being recognised, however, is not the end of the discussion: the threatened closure of remote Aboriginal communities in Western Australia risks dispossessing people from not only their physical homes, but their cultural and customary connections to the land, cutting off potential future claims to native title in those areas. In both cases, race issues are isolated from both their past and their future because of the overriding demands of precedent-based statutory interpretation. 

This isolation places people of colour in the unenviable position of having to choose between their race and another identity - occupation, status, gender, or yet another. In effect, the 'race card' is divorced from its context and played against the person of colour every day in the guise of 'national security', 'free speech', 'police powers' or 'meritocracy', and they are unable to respond to the racialised elements of their oppression, even using the law, without being accused of playing that very same race card. Interpersonal retaliation is equated to systemic and institutional oppression, and is often criticised to a greater extent. People of colour are marginalised in the society and marginalised again in using the law for protection or for vindication.

2: Erasure

Law and legal practice can find it expedient to erase race discussions and exclude racial minorities from participation in forming and applying laws. The Family Law Act 1975 (Cth), for example, was drafted at a time when certainly ethnic minorities existed in Australia, but the concept of the nuclear family as constituted by one man married to one woman (and their biological child or children) espouses the concept of the Western nuclear family which is foreign in many cultures - some of which were present in Australia in the early 1970s. Amendments regarding the involvement of grandparents were only introduced in 2006, when many cultures specifically emphasise the involvement of multiple generations in raising children.

There is also the legalistic fallacy to which even progressive-minded people turn in order to justify institutional silence in issues requiring race considerations. The legalistic fallacy proceeds on two axes: one, that the absence of laws which are racist on their face such as the Pacific Islands Labourers Act 1901 (Cth) creates a racially equitable society; and two, that the enactment of anti-racial discrimination laws ensures racial equity. Both must be untrue if we take recent quantitative data at face value. The Asian Australian Lawyers Association placed Asian representation in partnerships in the legal profession at 3.1% whereas Asians make up 9.6% of the Australian population, and an Australian National University study conducted in 2009 showed that people with Chinese names had to apply for 68% more jobs in order to get the same number of interviews as an applicant with an Anglo name using one of four standardised resumes. Then come the frequent microaggressions and the casual cultural ignorance which flows as a result of a falsely white media representation of Australian society. Legislation does nothing without application; the absence of legislation does nothing more than remove a lawful exercise to openly discriminate, and more often gives rise to the kind of sociolegal obscurantism in which initiatives like Operation Fortitude are designed and approved.

Aggravating the situation is the fact that the people who control the narrative are almost invariably ignorant of race issues. They form a significant part of the context in debates surrounding, to cite only a few, the Subclass 457 visa, refugees and asylum seekers, foreign investment, and police powers. Emphasis is placed entirely on injustice as a general principle and attack on professional and social integrity (i.e. the rule of law), rather than the impact on yellow, red, brown and black bodies victimised by the application of laws intended to protect and assist Australians. We are in dire need of explicitly racialised perspectives on the creation and practice of law, particularly amongst the lawmakers and civil servants who draft and vote on bills, and commentators and academics who assess the impact of legislation and case law.

3: Entrenchment

The law entrenches the creeping, insidious effect of racism in modern Australia. The lack of public perspectives grounded in considerations of race and ethnicity mean that high-ranking members of executive government find licence to plan and publicly announce extralegal measures and expect to be able to implement them. Do anti-discrimination laws protect people of colour from being targeted by their own government?

Part of the answer, empirically speaking, can be found in the grossly disproportionate incarceration rates of Aboriginal offenders. If we accept that Australian criminal law is just and fair, and leaving aside for the moment the generational abuse and marginalisation borne by Aboriginal peoples which lead members of those communities to antisocial behaviour, we are inclined to consider that the practice of law may be affected by the involvement of law enforcement professionals and the legal minds which interpret and apply the law - and this usually completely unconsciously. Patterns emerge over the long-term: racial profiling arises as a result of human application of the law as influenced by mainstream and interpersonal socialisations, and the limited data in Australia point to the systemic unfair application of law to vulnerable people in vulnerable areas and stages of life. Professor Gordon and Dr Henstridge in Haile-Michael & Ors v Konstantinidis & Ors analysed LEAP records between 2005-2008 and found that of all males living in North Melbourne or Flemington and born between 1987 and 1993, African descent people were targeted at rates 2.4 times greater than their percentage of residence. 

We return, though, to the assumption that the law is just and fair: how can we be sure that it is, when the people involved in drafting the laws mostly share a specific lens of the world with those involved in planning Operation Fortitude, the Melbourne sting designed to weed out people with expired visas? (Did they know that the greatest numbers of visa overstayers are United Kingdom and United States nationals?)

The same goes for Judges and lawyers, particularly experienced and venerated ones: it is difficult to fault lawyers and Judges for their failure to address broader social questions. One cannot solve a systemic problem on the basis of an interpersonal factual matrix, albeit that matrix arises in part from the system.

4: Positive Reinforcement

It follows that issues of race can rarely be seriously argued in courts, and Judges are rarely equipped to take judicial notice of sociological context in their reasons. They have occasionally seen fit to identify particular social consequences arising from statutory interpretation; however, discussions of race are set aside in favour of applying strict principles of statutory interpretation. The recent decision in North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41, for example, considered what is admittedly a heavily racialised piece of legislation allowing for paperless arrests purely on the basis of whether the police, an executive agency, would be exercising a judicial power and thus breaching the separation of powers. 

Bugmy v The Queen [2013] HCA 37 effectively demonstrates the point: Mr Bugmy was sentenced at trial on the basis that his difficult childhood had receding relevance to the sentencing factors as he aged. The decision was affirmed in the Court of Criminal Appeal. In the High Court, it was held that childhood deprivation does not diminish with time and with repeated offending - which created a net zero impact which did nothing but restore the status as before. An Aboriginal defendant, then, is on the same footing in sentencing factors under the Sentencing Act as a non-Aboriginal defendant (without allowing for internalised bias). Was this equality an outcome intended by the Court and the legislature? Does this equality do justice to the Aboriginal defendant?

This is where judicial activism runs into difficult terrain. Prima facie it is improper for a judge to consider any factor in making findings other than the relevant law and the facts established by the evidence, including taking judicial notice of social science where it has not consistently been established by a pattern of research conclusions. Much has been said about the propriety or otherwise of taking contextual factors into consideration when deciding a matter, but for the purposes of social activism it is perhaps most prudent for a Judge to refrain from taking into account matters not established by the evidence before the Court. Not only would this draw attention away from the most pertinent issues before the Judge, but it would open the Court to the explicit manipulation of personal prejudices incompatible with the perceptions of integrity that Courts currently enjoy.

For their part, lawyers' attentions are focused on winning the case for the client rather than proving a sociological point, and they quite properly do not turn their attentions to this type of evidence.

Conclusion

Race is a sociological and political challenge to law and legal practice in 2015 Australia. For all that we proudly claim that we are a multicultural society, it is not possible to accept the way that legal and political narratives have shaped the treatment of people of colour without accepting that people of colour are criminal, irrelevant, or incapable of self-advocacy. If we accept that people of colour are none of these things – what comes next for the legal system in treating this subset of Australians in the way that the other subset is treated?

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