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LITTLE BLACK DUCK: An Australian race to the legal bottom

NATIONAL: Race has always lingered in the shadows of Australian law, writes NICOLE WATSON.

The rules of legal storytelling, otherwise known as judgments operate to silence Aboriginal voices and make racism appear normal.

I first confronted this reality 20 years ago, when, as a law student, I studied the High Court’s decision in Tuckiar v R.

Tuckiar was a Yolngu man who was convicted of the murder of Constable Albert Stewart McColl, at Woodah Island off the coast of Arnhem Land, on 1 August 1933.

McColl had been a member of a police party that travelled to Woodah Island for the purpose of investigating the deaths of some Japanese fishermen.

Soon after its arrival the party stumbled upon a group of Aboriginal women. The women were handcuffed and taken back to the party’s camp.

The police subsequently became aware of the presence of some ‘natives’ nearby. The party splintered, with some members leaving the camp to investigate. McColl remained with the women. By the time that the other members of the party returned to the camp, McColl and one of the women had disappeared. His body was found the following morning. McColl had died as a result of a spear wound to the chest.

The Crown’s evidence largely consisted of confessions allegedly made by Tuckiar to two Aboriginal men; Parriner and Harry.
According to Parriner, Tuckiar told him that he had seen the police party take a group of Aboriginal women to their camp, one of whom was his wife.

Sometime later McColl and Tuckiar’s wife walked away from the camp. Tuckiar then killed McColl.

Harry’s evidence differed somewhat from Parriner’s. In particular, Harry alleged that Tuckiar told him that he had seen McColl having sexual relations with his wife.

The allegation that McColl had sexual relations with an Aboriginal woman incensed Darwin’s European society. At Tuckiar’s trial, both his lawyer and the judge went to great lengths to protect McColl’s reputation from what they considered to be a grave slur. The High Court later determined that their actions resulted in Tuckiar being deprived of a fair trial.

It is doubtful that Tuckiar was even aware of what went on at his shambolic trial. Tuckiar could not speak English and was alienated from the proceedings, which were conducted entirely in English.

Virtually every Australian law student will learn about Tuckiar v R, for its relevance to duties owed by lawyers to their clients. But the decision is also important for its reflection of a society drenched in racism.

This was a time when judges routinely referred to Aboriginal men as ‘boys’.

Tuckiar’s wife was not even afforded the respect of a name, and was simply called a ‘lubra’. The reality that the Aboriginal women in the story had been handcuffed and unlawfully detained by police for questioning barely caused a stir. Only one member of the High Court, Justice Starke, acknowledged that their detention was without legal basis, while also stating that such actions were ‘necessary’ if the police were to achieve the object of their expedition.

I can still remember sitting in class, listening to my tutor dissecting the legal principles from Tuckiar v R. My young self could not understand how people who were so intelligent could be oblivious to the racism which I considered to be obvious.

The High Court judgments, however, were only a snapshot of a much bigger story, of how race shaped everyday life in 1930s Australia, including the dispensation of justice. Only five years before the death of Constable McColl, a police patrol killed scores of Aboriginal people in Central Australia, in what is now remembered as the Coniston Massacre. No police officer was ever brought to justice for this atrocity.

At the same time, Aboriginal prisoners were routinely escorted in neck chains and subjected to punishments deemed inappropriate for
Europeans.

The very man who presided over Tuckiar’s trial, Judge Thomas Alexander Wells, once argued that flogging was the only form of punishment that the ‘natives’ understood.

It was also at this time that the Aboriginals Ordinance 1918 (Cth) comprehensively deprived Aboriginal people of their freedom.

In Darwin, where Tuckiar’s trial was held, Aboriginal people were subject to a curfew, and compelled to wear identification tags.

Also missing from our classroom discussion was the issue of Tuckiar’s fate. He disappeared on 9 November 1934; the day after the High Court handed down its decision to set him free. Over the years there has been much speculation that Tuckiar was murdered by police, who disposed of his body in Darwin Harbour. That mystery, however, has never been solved.

Twenty years ago, I believed that all of these facts were as relevant to the story of Tuckiar v R, as were any of those mentioned in the High Court judgments. I still do.

I also wonder how future lawyers will come to know our people, whose names appear in the law reports they will study.

Will those names be mere code for abstract legal principles? Or will they be remembered as human beings, with complex histories, whose
lives were largely shaped by the raced society into which they were born?

•Nicole Watson is a Murri lawyer and researcher with the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. She is a monthly columnist for Tracker.

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