Issue 10, Semester 2
By Tess McGuire
Content warning: Colonisation
One of the most profound disservices of my legal education over the past three years was the discussion of Kartinyeri v The Commonwealth in Constitutional law. The focus and reason for examining the case in class was to demonstrate different approaches to interpretation; ‘formalist’ versus ‘functionalist’. A valid aspect of the case, sure. But my god does this pale in comparison to the historical significance and the myriad of legal and political issues at play.
I distinctly remember sitting in class, when the question, ‘which style of judgment did you relate to?’ was posed. It was then disconcerting to hear people ‘relate’ to certain judgments, as they were making these statements without full knowledge of the facts.
Why do I raise this two years later? Well, I was reminded of this experience at the start of semester by both Indigenous students I tutor Constitutional law, who recalled their similar sense of discomfort when I asked them about the class. I have also been lucky enough to revisit the case in ‘Encounters: Indigenous Australians and Law’, where we spent three hours with experts, Ann Genovese, Maureen Tehan and Mark McMillan, interrogating the case and its true context. What I learned only exacerbated my sense of frustration towards the limited background students are afforded in Constitutional law.
Only discussing the case to discern the difference between ‘formalism’ and ‘functionalism’ is to gloss over the historical significance, impact and consequences of the case. It is at best, lacklustre, and at worst, a perpetuation of the coloniser narrative. The reading guide frames the case as concerning ‘the extent of Commonwealth power under section 51(xxvi)’. Again, of course this is true. But Kartinyeri is so much more.
Kartinyeri was also the High Court manifestation of a political witch hunt of Ngarrindjeri women. It was a David and Goliath battle of Indigenous women fighting to protect their sacred land against the sanctioned destruction by the newly-elected Howard government. It was a clash of two systems of law and culture that saw the dominant, Anglo-Australian system, subject the Ngarrindjeri nation to a demeaning level of scrutiny and inquisition.
The Hindmarsh Island bridge dispute was one of the most significant political controversies of 1990s Australia, during the post-Mabo, post-Wik outrage. It arose because Adelaide developers, Tom and Wendy Chapman wanted to develop a marina/golf course complex on Hindmarsh Island that would require a bridge. Shortly before construction, Ngarrindjeri women turned to the Federal Minister for Aboriginal Affairs, Robert Tickner (yes, of Tickner v Chapman that you read in Administrative law) who issued an emergency declaration preventing the work, and appointed (our national treasure) Professor Cheryl Saunders AO*, to investigate the cultural significance of the area.
After discussions with Ngarrindjeri women, Saunders’ report concluded:
‘Hindmarsh and Mundoo Islands and the waters surrounding them have a supreme and cultural significance for the Ngarrindjeri people within the knowledge of Ngarrindjeri women which concerns the life force itself. If destroyed, the Ngarrindjeri people believe they will be destroyed.’
‘The area is, as Doreen Kartinyeri said, drawing an analogy with the significance of Uluru for the people of central Australia, the most important place for Aboriginal people of the lower South.’
These assertions of significance were so contested there was a Royal Commission(!) established to investigate whether the Ngarrindjeri’s description of their ‘women’s business’ was a fabrication in order to prevent the construction of the bridge. The Commission concluded that it was. This was regardless of the fact many Ngarrindjeri women refused the jurisdiction of the Commission and did not appear. A powerful statement was read on their behalf, which stated:
“Our law for Aboriginal women prohibits us from talking about this business, not only to any men, but also to those not privileged to be given that information.”
“Women’s business does exist, has existed since time immemorial and will continue to exist where there are Aboriginal women who are able to practice their culture.”
It is after all of this (and more) that Doreen Kartinyeri, an extraordinary woman, historian, and Ngarrindjeri elder, became lead plaintiff in this constitutional challenge to the Howard government's’ use of the race power to legislate the Hindmarsh Island Bridge Act.
If I’ve learned anything in this law degree, it is that the law is not neutral and it is superficial to read it as so. To my mind, Kartinyeri is a demonstration of how the law can be a tool to subordinate and repress the voices of Indigenous women, in order to subject their sacred land to desecration and destruction. It is the story of a violent, white, patriarchy. Though I don’t expect every element of the case to be revealed in the first class of Constitutional law, addressing the historical significance in a more meaningful way, would only serve to enhance understanding and discourse.
Tess McGuire is a third year JD student.