As some of you know, at the beginning of this year I commenced a Juris Doctor at The University of Sydney. The main assessment piece for Foundations of Law was to write an essay about law’s foundations. I chose to write about the impact of normative narrative (dominant stories shared by members of a cultural or social group) on the law and in turn, the law’s failure to achieve justice for Aboriginal and Torres Strait Islander People. The essay had a word limit of 2500, which limited what I could write about, but enabled me to summarise the effect of normative narrative since colonisation on First Nations people through the law. I am sharing my essay here to hopefully counter some of the misinformation that is being spread in the lead-up to the Voice referendum. The Uluru Statement from the Heart also called for Truth. As a child of the 1970s, I didn’t learn the Truth at school and am cognisant that most Australians of voting age born before and after me didn’t either. There are, of course, more thorough examinations of the impact of colonisation on Aboriginal and Torres Strait Islander people than my essay (as noted in the citations) and many much more qualified people to write about this topic but I wanted to use my platform here to share a summary of my learnings from some of those experts.

Normative Narratives, the Law, & Structural Racism: A Case Study on the Law’s Failure to Achieve Justice for Aboriginal and Torres Strait Islander People.

Fairness, as an essential element of law’s conscience,[1] underpins its legitimacy.[2] Fairness combines ‘two ostensibly inconsistent ideals’.[3] Fairness as justice is a moral ideal encompassing the notions of equity and liberty.[4] Fairness as the impartial application of legal rules is a procedural ideal.[5] In this essay, I argue that normative narratives regarding Aboriginal people render unconvincing law’s claim to fairness. Normative narratives refer to the dominant stories shared by members of a cultural or social group about what is right or wrong, desirable or undesirable, moral or deviant. Normative narratives often serve to protect the interests of the dominant societal group.[6] By examining the influence on legislation and common law of four normative narratives that have underpinned and justified the subjugation of Aboriginal people since colonisation—savage native, dying race, criminality, and threat/subordination—I assert that normative narratives, as a core foundation of law, have undermined justice for Aboriginal people by entrenching inequalities to the point they have become structural.[7] Despite this bleak assessment, I conclude on a hopeful note, reflecting on the potential for the reconciliation narrative to influence law and, in turn, improve outcomes for First Nations people.

1. Savage native

‘Not only were they uncivilised, but they were very probably the most uncivilised people yet encountered in the British Empire: …“they certainly rank low, even in scale of savages…—a less enlightened state we shall exclaim can hardly exist”.’[8]

Despite a ‘deep past’[9] of Aboriginal customary law[10] and sophisticated agricultural and aquacultural practices[11], colonial settler perceptions and treatment of Aboriginal people were shaped by a discourse that proclaimed ‘abject’[12] Aboriginal people required civilising into progressive European culture.[13] Perceived by British settlers as ‘savages’,[14] ‘thoroughly uncivilised’,[15] ‘a non-social, indeed pre-social being’,[16] who roamed the land as hunters and gatherers,[17] and whose law amounted to ‘lewd superstitions’,[18] Aboriginal people were perceived to not have ‘attained either the numbers or the status of ‘civilised nations’ that could be recognised as sovereign states governed by their own laws’.[19] The ‘legal fiction[20] of terra nullius (nobody’s land) gave legal validity[21] (and moral justification[22]) to the colonial possession of land and the application of British law to Aboriginal people as subjects of the King, as did the false normative narrative of a peaceful settlement that downplayed Aboriginal resistance and overlooked coloniser violence.[23] In the context of this violence and the dispensing of summary justice, Aboriginal people were simultaneously placed inside the law (at least to the extent of their interactions with British subjects) but outside its protection.[24]

2.     Dying race

‘I desire to see the state of the Aborigines of Australia improved, I desire to see them freed from the yoke of error; to see the duties of humanity amply and practically fulfilled; to see all due protection extended to this unhappy race….’[25]

In the 19th century, British concern regarding the treatment of Indigenous people in its colonies underpinned the establishment, in 1835, of the Aboriginal Protection Society (APS).[26] Although the APS had humanitarian goals, including equality before the law[27], it did not seek the preservation of Aboriginal culture.  Instead, it promoted the protection of a ‘dying race’[28] through assimilation with white Australia.[29]

In Australia, The Board for the Protection of Aborigines was established by the NSW Government on 2 June 1883.[30] While initially the Board’s activity was limited, it achieved significant control over Aboriginal people with the enactment of the Aborigines Protection Act 1909 (NSW).[31] Exercising its powers under the Act, the Board sought to control the movement, activities, and welfare of Aboriginal people through racial segregation and curfews, and restrictions and regulations on marrying and access to alcohol, social security entitlements, employment and wages, education, and healthcare.[32] Aboriginal employees were paid below award rates, and often wages were deposited into government trust funds and not passed on to workers.[33] In 2021, a class action on behalf of an estimated 10,000 First Nation workers for stolen wages in Queensland was settled with the state government for $190m.[34] Although hailed as justice for claimants, the settlement fell short of the estimated $500m of stolen wages,[35] involved a 12-year legal fight, may not be fully distributed due to missing claimant details or the death of claimants,[36]and does not compensate for mental distress and suffering.[37]

The most catastrophic policy for Aboriginal people under protectionist schemes was the forced removal of children.[38] In 1915, amendments to the NSW Act gave the Board the power to remove any Aboriginal child at any time and for any reason from their family.[39] Tens of thousands of children were subsequently removed from their homes.[40] These children, known as the Stolen Generation[41], were placed in Aboriginal Missions or co-race institutions where physical, emotional and sexual abuse was commonplace.[42] Other children were fostered or adopted by white families.[43] In all cases, removed children lost connection with culture, land and community.[44] Children removed were more likely to suffer low self-esteem, depression, and other mental illnesses.[45] They were less likely to have a post-secondary education, much less likely to have stable living conditions, and three times more likely to have been incarcerated.[46] Further, intergenerational trauma refers to the transmission of distress caused by the dislocation from culture, family, and communities to new generations of Aboriginal people.[47]

3.     Criminality

‘For many decades, dysfunctional Indigenous families have fed children into the juvenile justice system, which serves as an apprenticeship for prison; those children grow up to form the next generation of failed families.’[48]

Aboriginal and Torres Strait Islander people are the most incarcerated people on the planet.[49] Aboriginal and Torres Strait Islander adults have an incarceration rate of 13.5 times that of adult non-Indigenous Australians, and Aboriginal and Torres Strait Islander youths aged 10-17 have an incarceration rate of 17.8 times that of non-Indigenous youths.[50]

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) concluded that ‘the most significant contributing factor bringing Aboriginal people into conflict with the criminal justice system was their disadvantaged and unequal position in the wider society’.[51] According to this view, ‘the structural conditions of poverty create fertile ground for the crimes of the powerless.’[52] Others argue that the overrepresentation of Aboriginal people in the criminal justice system is ‘because they are over-represented in crime, particularly violent crime’.[53] Comparing the relationship between Aboriginal crime rates and Indigenous-targeted policies since colonisation, proponents of this argument challenge the proposition that disempowerment causes crime and empowerment reduces it.[54]

The Aboriginal criminality narrative[55] is evident in mass media as well as criminology.[56] Anti-discrimination laws provide limited protection. In 2016, amid an intense public debate on the competing rights of freedom of speech and freedom from racial vilification,[57] The Australian newspaper published a cartoon by Bill Leak that portrayed an Aboriginal father holding a beer can and unable to remember his son’s name.[58] The Australian Human Rights Commission President, Gillian Triggs, stated that, in her opinion, Leak’s cartoon fell within the protection of s 18D of the Racial Discrimination Act 1975 (Cth).[59]

RCIADIC reported that the racism, stereotyping of Indigenous peoples and inaccurate reporting of the media have a profound impact on the lives of First Nations people.[60] Media representations influence the formation of racial stereotypes even if people do not consciously endorse these stereotypes and can contribute to implicit biases that shape people’s perceptions and behaviours towards racial minority groups.[61] Researchers have shown that seventy-five per cent of Australians hold an implicit bias against Aboriginal and Torres Strait Islander peoples.[62] Given that Aboriginal and Torres Straits Islanders comprise 3.8%[63] of the population and that 60% of white Australians say that have never met an Aboriginal person,[64] it is reasonable to assert that these biases are driven by racist narratives in mass media.[65]

Media representations of Aboriginal criminality reflect and strengthen neo-colonial ideology under which the incarceration of First Nations people is normalised and legitimised.[66] In this context, policies and practices have developed within the criminal justice system that disadvantage Indigenous people without triggering outrage,[67] for example, Aboriginal deaths in custody, strong-handed policing and arrest, mandatory sentencing, failure to recognise Indigenous customary law, restricted access to bail, and increased risk aversion regarding probation and parole.[68]

Normative narratives, to the extent that they influence the attitudes and stereotypes of judicial officers, may also result in explicit or implicit judicial bias.[69] Explicit racial prejudice is consciously held and intentionally expressed through discriminatory words or behaviour of judicial officers.[70] Implicit judicial bias is more difficult to identify. It can manifest as “testimonial injustice”—favouring the evidence or testimony of some people over others, unconsciously believing them to be more credible.[71] It can also manifest in the application of legal principles such as common-sense tests of “reasonableness”, which are influenced by one’s worldview.[72] Judicial ignorance and devaluing of Aboriginal and Torres Strait Islander culture and history also bias judicial decision-making.[73]

Research on judicial bias in relation to sentencing shows that taking contextual factors into account for the same offending patterns, Aboriginal and Torres Strait Islander people are, in some circumstances, more likely to be imprisoned and receive longer sentences than non-Indigenous Australians.[74] This is despite a recognition by the courts and legislation in some States that sentencing should consider cultural considerations and socioeconomic disadvantage when sentencing Aboriginal and Torres Strait Islander people.[75] The court has, however, stopped short of providing that a person’s ‘Aboriginality of itself is a mitigating factor’.[76] Instead, the general principle of individualised justice applies.[77] Offenders can make a submission to the court regarding their personal socio-economic circumstances and the environment in which they have grown up.[78] The burden of proof is an additional demand on First Nation offenders, who may also face economic, language and cultural barriers in court proceedings.[79] Also, because the judiciary retains discretion in assessments of disadvantage, as well as aggravating factors, such as the severity of the offence and risk of reoffending, there is a potential for bias to influence decision-making.[80] At the other extreme, mandatory sentencing legislation limits the ability of the judiciary to exercise discretion and has been criticised as perpetuating systemic inequality.[81]

Aboriginal people report lower levels of trust in the judiciary compared with Non-Indigenous people.[82] Aboriginal litigants are less likely to agree that the judicial officer was not biased and indicate disproportionately that they strongly disagree that the judicial officer was not biased.[83] Low levels of confidence in the judiciary can deter a claimant’s willingness to access justice.[84] Low levels of confidence also undermine compliance with the law, which may contribute to higher rates of offending and incarceration.[85]

4.     Threat and subordination

‘Farmers and miners have every right to be alarmed at yesterday’s long-awaited High Court decision in the Wik case.’[86]

Although the judiciary has been perceived at times to advance First Nation’s rights, judgements have endorsed only a restricted recognition of Aboriginal rights that do not threaten the Crown’s sovereignty[87]. In Mabo v. Queensland (No. 2)[88], the High Court overturned the doctrine of terra nullius and held that Aboriginal people had native title rights.[89] Although hailed by many as significant for the recognition and advancement of Aboriginal rights,[90] others criticised the judgement for subordinating the rights of Aboriginal people by denying sovereignty and providing that native title must generally give way to the rights held by others.[91] Native title is extinguished without compensation for land that has evidently been taken by the Crown[92], such as land for which the grant of freehold estates or leases or the construction of public buildings. Also, Aboriginal people must prove their tribe’s or clan’s uninterrupted connection with the land since colonisation, which is a high bar given the impact of colonisation on traditional customs and culture and the reliance of Aboriginal culture on oral history, which is not typically recognised as fact under common law.[93] For most Aboriginal communities, the cost and difficulties of claiming native title through the courts are prohibitive.[94] Some of the procedural barriers to claiming native title were addressed with the enactment of the Native Title Act 1993 (Cth) but in return, Indigenous people made significant concessions in terms of their substantive rights.[95]

In 1996, the High Court handed down another significant native title judgement, Wik Peoples v Queensland, holding that pastoral leases do not extinguish native title.[96] Although the Wik’s judgement held that where there was a conflict in rights, native title was extinguished by a lease, the judgement triggered a fierce backlash by politicians, miners and pastoralists who accused the High Court of judicial activism and stoked fear of an Aboriginal land grab of non-Indigenous private property.[97] The Sydney Morning Herald reported the Wik decision was “A decision for chaos” and printed a photograph of a farmer ‘looking forlornly down at his land under the headline “Family’s Land Dream Turns into Nightmare”’.[98] ‘Even city people began to fear for their suburban backyards’.[99] Native title was positioned by mass media and politicians as a threat to Australia’s economic development,[100] implying that Indigenous sovereignty and the rights of Aboriginal people to use their land are subordinate to the economic rights of developers and farmers.[101] It was in this context of ‘psychological terra nullius’[102] that the Native Title Amendment Act 1988 (Cth) was passed, which had the effect of extinguishing native title in particular circumstances or significantly cutting back statutory rights which native title holders had obtained as part of the NTA compromise in 1993.[103]

Today, First Nations criticisms of the Voice to Parliament[104] argue that as an advisory body without any real power, Aboriginal rights will continue to be subordinated to that of the Australian government.[105] They perceive the Voice as a tokenistic gesture that is an inferior form of reconciliation when compared with a treaty. Others object, along with prominent white Australians opposing the Voice, that it is racially divisive and discriminatory, arguing the constitution should be colourblind.[106] While this ‘stock story’ protects Voice critics from accusations of explicit racism, colour blindness ideology denies substantive justice.[107]


In this essay, I have argued that normative narratives regarding Aboriginal and Torres Strait Islander people render unconvincing laws claim to fairness. Four dominant narratives—savage native, dying race, criminality, and threat/subordination—through their influence on legislation and common law, have entrenched inequalities to the extent that they have become structural. However, while this essay paints a bleak picture of the past, it also provides hope. In demonstrating that narrative is a core foundation of law, we are alerted to the potential of narrative for improving outcomes for Aboriginal and Torres Strait Islander people. Indeed, the global human and civil rights narrative after World War II underpinned a yes vote of over 90% in the 1967 referendum, which granted the Commonwealth powers to make laws for Aboriginal people.[108] It remains to be seen whether the reconciliation narrative,[109] as embodied in the Uluru Statement from the Heart,[110] will prevail in the upcoming Voice referendum and beyond.

[1] See, eg, Alan Calnan, ‘The Nature of Reasonableness’ (2020) 105 Cornell Law Review 81, 82; Peter Charles Hoffer, ‘Law’s Conscience: Equitable Constitutionalism in America’ (The University of North Carolina Press, 1990) 7; Chief Justice Tom Bathurst, ‘The Law and Society’s Moral Conscience’, Law Society Journal (LSF) Online (Blog Post, 25 February 2020)  <>.

[2] See, eg, Tom R. Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’ (2003) 30 Crime and Justice (Chicago, Ill) 283, 283; Josh Bowers and Paul H. Robinson ‘Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts or Legitimacy and Moral Credibility’ (2012) 47(2) Wake Forest Law Review 211, 211.

[3] Calnan (n1) 86; See also, John Tasioulas, ‘Justice, Equity and Law’, Routledge Encyclopedia of Philosophy (Web Page, 1998) pt 1 <>.

[4] See, eg, Calnan (n1) 86; Tasioulas (n3) pt 1; John Rawls, ‘Justice as Fairness’ (1958) 67(2) The Philosophical Review 164, 165-166.

[5] See, eg, Calnan (n1) 86; Tyler (n2) 283.

[6] See, eg, Teun A. van Dijk, ‘Prejudice in Discourse: An Analysis of Ethnic Prejudice in Cognition and Conversation’ (John Benjamins Publishing Company, 1984) 13; Sensoy Ozlem and Robin DiAngelo, ‘Understanding the Structural Nature of Oppression Through Racism’ (Teachers College Press, 2017) xxiii. Normative narratives that serve to protect the dominant group are also referred to as ‘stock stories’: Lisa Sarmas, ‘Story Telling and the Law: A Case Study of Louth v. Diprose’ (1994) 19(3) Melbourne University Law Review 701, 702-703.

[7] The argument that normative narratives entrench structural racism aligns with the proposition that power and the law are intertwined: see, eg, Edmond N. Cahn, ‘Justice, Power and Law’ (1946) 55(2) The Yale Law Journal 336, 338.

[8] Bruce Buchan, ‘Subjecting the Natives: Aborigines, Property and Possession Under Early Colonial Rule’ (2001) 45(2) Social Analysis 143, 145, quoting W Tench, ‘A Complete Account of the Settlement at Port Jackson, in 1788’, (1793) edited by T. Flannery (Text Publishing, 1996) 252-253.

[9] Stephanie Mawson, ‘A Deep Past of Pre-Colonial Australia’ (2021) 64(5) The Historical Journal, 1477, 1477.

[10] See, eg, Australian Law Reform Commission, ‘Recognition of Aboriginal Customary Laws’ (Report No 31, August 2010) [4.37] (‘Recognition of Aboriginal Customary Laws’).

[11] Mawson (n9) 1487-1488.

[12] Bruce Buchan, ‘Subjecting the Natives: Aborigines, Property and Possession Under Early Colonial Rule’ (2001) 45(2) Social Analysis 143, 145.

[13] See, eg, Benjamin Walton, ‘Creating Europe: The Discourse of Civilisation’ [2014] 2013/2014 Interstate Journal of International Affairs Online] para 2; Saliha Belmessous, ‘Assimilation and Empire: Uniformity in French and British Colonies, 1541-1954’ (Oxford University Press, 2013) 59; Buchan (n12) 143; Larissa Behrendt, ‘Finding Eliza: Power and Colonial Storytelling’ (University of Queensland Press, 2016) 76; Chris Cunneen, ‘Indigenous Incarceration: The Violence of Colonial Law and Justice’ in Scraton, P. and McCulloch, J. (eds), The Violence of Incarceration (Routledge Taylor and Francis Group, 2009) 209, 210; Recognition of Aboriginal Customary Laws (n10) [23].

[14] See eg., R v Ballard or Barrett [1829] NSWSupC 26; (1828) NSW Sel Cas (Dowling) 2 (13 June 1829) (Forbes C.J. and Dowling J); R v Boatman or Jackass and Bulleye [1832] NSWSupC 4; (1832) NSW Sel Cas (Dowling) 6 (23 February 1832) (Dowling J); R v Lowe [1827] NSWSupC 32; [1827] NSWKR 4 (18 May 1827)( Forbes C.J. and Stephen J.); see generally Buchan (n12) 143-144.

[15] Buchan, (n12) 144, citing W Dampier ‘A New Voyage Around the World’ (Hummingbird Press, 1988).

[16] Buchan, (n12) 144, citing J.J. Rousseau ‘A Discourse on the Origin of Inequality’ in The Social Contract and Discourses, translated by G.D.H. Cole (Dent, 1973) and Adam Ferguson ‘An Essay on the History of Civil Society’ (Edinburgh University Press, 1966).

[17] Bruce Pascoe challenges the hunter-gatherer narrative in ‘Dark Emu: Aboriginal Australia and the Birth of Agriculture’ (Magabala Books, 2014) 2.

[18] R v Murrell and Bummaree [1836] NSWSupC 35 (5 February 1836) (Burton J).

[19] Chris Cunneen and Amanda Porter, ‘Indigenous Peoples and Criminal Justice in Australia’ in Deckert, A. and Sarre, R. (eds), The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice (Palgrave Macmillan, 2017) 667, 667; see also Buchan (n12) 146.

[20] Larissa Behrendt, ‘The Long Path to Land Justice’ (Eddie Koiki Mabo Lecture, James Cook University, 2006) 3,5; Recognition of Aboriginal Customary Laws (n10) [5.60].

[21] The Privy Council confirmed (although without specifically stating) the doctrine of settlement and terra nullius in Cooper v Stuart (1889) 14 App Cas 286, 29; Buchan (n12) 146-148.

[22] See, eg, Ashley Barnwell, ‘Keeping the Nation’s Secrets: “Colonial Storytelling” within Australian Families’ (2021) 46(1) Journal of Family History 46, 46.

[23] For the peaceful settlement narrative see, eg, Barnwell (n22)  46; Tahlia Nelson, ‘Rewriting the Narrative: Confronting Australia’s Past in Order to Determine our Future’ (2018) 40(1) NEW: Emerging Scholars in Australian Indigenous Studies 20, 21. Cf Recognition of Aboriginal Customary Laws (n10) [22-24]; Henry Reynolds, ‘The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (UNSW Press, Rev. ed, 2006) 95-96; Cunneen (n13) 210; Cunneen and Porter (n19) 668; see also the diary entry of Joseph Banks: Joseph Banks, Endeavour Journal, State Library of NSW (Journal, 15 August 1769 to 12 July 1771) 375 (Web Page) <*dtlujr*_ga*Mjg0NTUyODAzLjE2Nzg0ODIwNjY.*_ga_CYHFMM592Q*MTY4NTA3MjM2Mi45LjEuMTY4NTA3MjQwNS4xNy4wLjA.>.

[24] Cunneen and Porter (n19) 668. See also Cunneen (n13) 211; Recognition of Aboriginal Customary Laws (n10) [23-24].

[25] R v. Bonjon [1841] NSWSupC 92 (16 September 1841) (Willis J) Port Phillip Patriot, 20 September 1841, 1

[26] Belmessous (n13) 74.

[27] Belmessous (n13) 93.

[28] See, eg., Jean Woolmington, ‘Aborigines in Colonial Society: 1788 – 1850: From ‘Noble Savage’ to ‘Rural Pest’ (Cassell Australia Ltd., 1973) ix; Russell McGregor, ‘Imagined Destinies: Aboriginal Australians and the Doomed Race Theory, 1880 – 1939’ (Melbourne University Press, 1997) ix, 14–22; Katherine Ellinghaus, ‘Absorbing the ‘Aboriginal Problem’: Controlling Interracial Marriage in Australia in the Late 19th and Early 20th Centuries’ (2003) 27 Aboriginal History 183, 186; C. D. Rowley, ‘The Destruction of Aboriginal Society’ (Australian National University Press, 1970) 124; Mark Francis, ‘Social Darwinism and the Construction of Institutionalised Racism in Australia’ (1996) 50/51 Journal of Australian Studies 90, 98; Bruce Elder, ‘Blood on the Wattle: Massacres and Maltreatment of Aboriginal Australians Since 1788’ (New Holland Publishers (Australia) Pty. Ltd., 3rd rev ed)1988) 260.

[29] Belmessous (n13) 60.

[30] Museums of History NSW, ‘Aborigines Welfare Board, 1883-1969’ Aboriginal Resources: An Overview of Records (Web Page) <>.

[31] Aborigines Protection Act No. 25 1909 (NSW). Similar legislation was implemented in other states and territories: Parliament of Australia Senate Standing Committees on Legal and Constitutional Affairs ‘Unfinished Business: Indigenous Stolen Wages’ (2006) Life Under the Protection Acts ch2 (Web Page, 2007) <>  (‘Unfinished Business’).

[32] Unfinished Business (n30) ch 2; Recognition of Aboriginal Customary Laws (n10) [25]; John Maynard, ‘Capturing the Lived History of the Aborigines Protection Board While We Still Can’ The Conversation (Online, 4 September 2015) <>.

[33] Ibid.

[34] Pearson v Queensland (No 2) [2020] FCA 619. Similarly, a class action claim for Stolen Wages from Indigenous workers in Northern Territory has been settled for $50m: Minnie McDonald v Commonwealth of Australia (Federal Court, VID312/2021, commenced 15 November 2021). A claim for Stolen Wages from Indigenous workers in Western Australia has been filed in the Federal Court: Mervyn Street v State of Western Australia (Federal Court of Australia, WAD237/2020, commenced 19 October 2020).

[35] Rosalind Kidd, ‘Hard Labour, Stolen Wages—National Report on Stolen Wages’ (2007) Australian Indigenous Law Review 11(3) 105, 106.

[36] Marian Faa, ‘Thousands of Indigenous Australians risk missing payments from $190m stolen wages class action’ ABC (Online, 23 Sep 2020) <>.

[37]Western Australia Stolen Wages Taskforce, ‘Reconciling the Past: Government Control of Aboriginal Monies in Western Australia, 1905-1972’ (2008) 82; Thalia Anthony, ‘Stolen wages: Northern Territory Class Action will Hold the Commonwealth to Account’ The Conversation (Online, 18 June 2021) <>.

[38] Australian Human Rights Commission, ‘Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families’ (1997) 11 (‘Bringing Them Home’).

[39] Ibid 226.

[40] Ibid 31.

[41] The term ‘Stolen Generations’ is credited to Peter Read, ‘The Stolen Generations: The removal of Aboriginal children in New South Wales 1883 to 1969’ (NSW Department of Aboriginal Affairs, 1981).

[42] Stories of abuse are described throughout the Bringing Them Home Report (n38), for example on pages 66, 128, 168, 227.

[43] Ibid 10.

[44] Ibid 173.

[45] Ibid 161.

[46] Ibid 12.

[47] Bringing Them Home (n35) 4; See also William Aguiar and Regine Halseth, ‘Aboriginal Peoples and Historic Trauma: The Processes of Intergenerational Transmission’ (National Collaborating Centre for Aboriginal Health, 2015) 5; J.J. Sigal, V. F. Dinicola, and M. Buonvino, ‘Grandchildren of Survivors: Can Negative Effects of Prolonged Exposure to Excessive Stress be Observed Two Generations Later?’ (1988) 33(3) The Canadian Journal of Psychiatry 207, 207; M. E. Bowers and R. Yehuda, ‘Intergenerational Transmission of Stress in Humans’ (2016) 41(1) Neuropsychopharmacology: Official Publication of the American College of Neuropsychopharmacology 232, 232.

[48] Editor, ‘Family Failure the Root Cause’, The Australian (online 5 August 2016) <>.

[49] Australian Bureau of Statistics, Prisoners in Australia, 30 June 2022 (Web Page, 24 February 2023) <> (‘Prisoners in Australia’); See also Tahlia Anthony, ‘Fact Check: are first Australians the most imprisoned people on Earth?’, The Conversation (online, 6 June 2017) <>; Andrew Leigh, ‘The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia’ (2020) 96(313) The Economic Record 187, 195.

[50] Prisoners in Australia (n49); Australian Government Productivity Commission, Closing the Gap, (Annual Data Compilation Report, July 2022) (Web Page) <>.

[51] Victorian Department of Justice, ‘Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody’ (Review Report Volume 1, Oct 2005) 75; See also Royal Commission into Aboriginal Deaths in Custody (National Report, 1991) Vol 1, 15.

[52] Cunneen and Porter (n19) 3; See also Chris Cunneen, ‘Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues’ (2006) 17(3) Current Issues in Criminal Justice 329, 334-335; Victorian Aboriginal Justice Agreement, ‘Underlying Causes of Aboriginal Over-Representation’, (Web Page) <>.

[53] See, eg, Don Weatherburn, ‘Arresting Incarceration: Pathways out of Indigenous Imprisonment’ (Aboriginal Studies Press, 2014) 2; Don Weatherburn, J Fitzgerald and J Hua, ‘Reducing Aboriginal Overrepresentation in Prison’ (2003) 62(3) Australian Journal of Public Administration 65, 65; Don Weatherburn, ‘Disadvantage, disempowerment and Indigenous Over-Representation in Prison’ (Children’s Court Section 16 Meeting, October 2014) 7 (Disadvantage and Disempowerment’).

[54] Disadvantage and Disempowerment (n53) 5.

[55] The Indigenous criminality narrative is as old as the father of criminology, Cesare Lombroso. Influenced by Darwin’s theory of evolution, Lombroso drew a racist parallel between native savages and criminals. Lombroso suggested that there was a distinct biological class of people that were prone to criminality. These born criminals had ‘atavistic’ (primitive) features and were at a more primitive stage of evolution: Cesare Lombroso, ‘Crime: its Causes and Remedies’ (Forgotten Books, 2018) xxiii.

[56] See, eg, Ruth McCausland, ‘Special Treatment – The Representation of Aboriginal and Torres Strait Islander People in the Media’ (2004) 4 Journal of Indigenous Policy 84, 86; Howard Sercombe, ‘The Face of the Criminal is Aboriginal’ (1995) 19(43) Journal of Australian Studies 76, 76; Heather Goodall, ‘Constructing a Riot: Television News and Aborigines’ (1993) 68 Media Information Australia 70, 70; Amanda Porter and Eddie Cubillo, ‘Not Criminals or Passive Victims: Media Need to Reframe Their Representation of Aboriginal Deaths in Custody’ The Conversation (online, 20 April  2021) <>; Jonathan Cannon, ‘Reading Between the Crimes: Online Media’s Representation of Aboriginal and Torres Strait Islander Peoples Interaction with the Criminal Justice System in Post-Apology Australia’ (Master of Criminal Justice Theses, Edith Cowan University, 2018) 37; Amy Thomas, Andrew Jakubowicz and Heidi Norman, ‘Does the Media Fail Aboriginal Political Aspirations? 45 Years of News Media Reporting of Key Political Moments’ (Aboriginal Studies Press, 2019) 23; Wendy Bacon, ‘A Case Study in Ethical Failure: Twenty Years of Media Coverage of Aboriginal Deaths in Custody’ (2005) 11(2) Pacific Journalism Review 17, 22.

[57] See, eg, Nathan Kennedy, Submission to Attorney General, Proposed Amendments to the Racial Discrimination Act 1975 (Cth) (RDA) as set out in the Freedom of Speech (Repeal of s. 18C) Bill 2014 (Exposure Draft Bill) (30 April 2014); John William Tate, ‘Bill Leak, Andrew Bolt and Section 18C: Freedom of Speech and the Limits of Political Criticism in Australia’ (2018) 9 The Western Australian Jurist 130, 130.

[58] ABC, ‘Bill Leak Cartoon in The Australian an Attack on Aboriginal People, Indigenous Leader Says’ ABC (online 4 August 2016) <,-indigenous-leader-says/7689248>.

[59] Section 18C of the Racial Discrimination Act 1975 (Cth) makes it unlawful for someone to do an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity, however, under section 18D, section 18C does not render unlawful anything said or done reasonably and in good faith in making or publishing a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment (s18D(c)(ii)).

[60] Royal Commission into Aboriginal Deaths in Custody (National Report, 1991) Vol 2, 184.

[61] See, eg, Tuen A van Dijk, ‘The Role of the Press in the Reproduction of Racism’ in Messer, M., Schroeder, R., Wodak, R. (eds) Migrations: Interdisciplinary Perspectives (Springer, 2012) 15; Kim Bullimore, ‘Media Dreaming: Representation of Aboriginality In Modern Australian Media’ (1999) 6 Asia Pacific Media Educator 72, 73; Prejudice in Discourse (n6) 3; Australian Law Reform Commission, ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’ (Final Report No. 138, December 2021) 121-126 (‘Without Fear or Favour’); P. Devine, ‘Stereotypes and Prejudice: Their Automatic and Controlled Components’ (1989) 56(1) Journal of Personality and Social Psychology 5, 5; J.F. Dovidio, K. Kawakami, & S L Gaertner, ‘Implicit and Explicit Prejudice and Interracial Interaction’ (2002) 82(1) Journal of Personality and Social Psychology 62, 62.

[62] Siddharth Shirodkar, ‘Bias Against Indigenous Australians: Implicit Association Test Results for Australia’ (2019) 22(3-4) Journal of Australian Indigenous Issues 3, 3.

[63]Australian Bureau of Statistics, Estimate of Aboriginal and Torres Strait Islander Australians, 30 June 2021 (Web Page, 21 September 2022) <>.

[64] Luke Pearson, ‘6 in 10 white Australians claim they have never met an Indigenous person… But so what?’ SBS (online 29 November 2016)>.

[65] Bullimore (n61) 73.

[66] ‘The constant linking of Indigenous people with criminality and disorder isolates them from the mainstream of the nation and positions them as an evil social element. It places them in a structural position which provides legitimation for the use of extreme measures of force’: Chris Cunneen, ‘Conflict. Politics and Crime: Aboriginal Communities and the Police’ (Routledge, 2001) 118. See also Chris Cunneen, ‘Colonial Processes, Indigenous Peoples, and Criminal Justice Systems’ in Sandra M. Bucerius, and Michael Tonry (eds), The Oxford Handbook of Ethnicity, Crime, and Immigration (Oxford Academic, 2014) 386, 392. For an analysis of mass media’s role in the perpetuation of power imbalances, see, eg, Roger Fowler, ‘Language in the

News: Discourse and Ideology in the Press’ (Routledge, 1991) ch 6.

[67] Monash Law Students Society, ‘Indigenous Representations and Criminal Justice System Impact’ Monash Law Students Society (Blog Post, 19 April 2021) <>.

[68] Harry Blagg et al.,, ‘Systemic Racism as a Factor in the Overrepresentation of Aboriginal People in the Victorian Criminal Justice System’ (Equal Opportunity Commission, September 2005) 36l see also Cunneen (n19) 670ff.

[69] Without Fear or Favour (n61) 103-133, 391-422.

[70] See eg, Chris Cunneen, ‘Judicial Racism’ (1992) 44(2) Aboriginal Law Bulletin (Online) <>; Without Fear or Favour (n61) 392.

[71] Without Fear or Favour (n61) 409.

[72] Ibid 404.

[73] Ibid citing Vanessa Cavanagh and Elena Marchetti, ‘Judicial Indigenous Cross-Cultural Training: What is Available, How Good Is It and Can It Be Improved? (2006) 19(2) Australian Indigenous Law Review 45.

[74] Ibid 413.

[75] See, eg., R v Fernando (1992) 76 A Crim R 58 [62]–[63] (Wood J); Crimes (Sentencing) Act 2005 (ACT) s33(1)(m), s40A(b); Penalties and Sentencing Act 1992 (Qld) s9; Criminal Law (Sentencing) Act 1988 (SA) s 9C; For further discussion see Australian Law Reform Commission, ‘Pathways to Justice–Inquiry Into The Incarceration Rate Of Aboriginal And Torres Strait Islander People’s (Report 133, January 2018) [6.17-6.45] (‘Pathways to Justice’); Janet Manuell, ‘The Fernando Principles: The Sentencing of Indigenous Offenders in NSW’, (Discussion Paper for NSW Sentencing Council, December 2009) 5[16]; Lucy Jackson, ‘Casenote: Bugmy v R (2013) 302 ALR 192’ (2014) 810) Indigenous Law Bulletin 27, 27.

[76] Pathways to Justice (n70) [6.32] citing Legal Aid NSW, Sentencing Aboriginal Offenders (2004).

[77] Bugmy v The Queen [2013] HCA 37, [36], [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); see also Pathways to Justice (n70) [6.1-6.114].

[78] Bugmy v The Queen [2013] HCA 37, [36], [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); see also Pathways to Justice (n70) [6.1-6.114]. For further discussion on the sentencing of Aboriginal offenders and presenting a case for individualised justice, see Stephen Norrish, ‘Sentencing Aboriginal Offenders – Striving for Equality Before the Law’ (Conference Paper, Legal Aid Commission Workshop, 2017) 14; Sophia Becket, ‘The Bugmy Bar Book: Presenting Evidence of Disadvantage and Evidence Concerning the Significance of Culture on Sentence’ (Web Page, 2001) 1 <>.

[79] Australian Human Rights Commission, ‘Inquiry into Access to Justice’ (Submission to the Senate Legal and Constitutional Affairs Committee, 20 October 2009) 3; Dr Diana Eades, ‘Judicial Understandings of Aboriginality and Language Use’ (2016) 12 The Judicial Review 471, 471.

[80] For discussion on judicial discretion in sentencing, see, eg., Sarah Krasnostein, ‘Aboriginality, Disadvantage and Sentencing’ Human Rights Law Centre (Blog Post)>; Thalia Anthony, ‘Indigenising Sentencing? Bugmy v the Queen’ (2014) 35(2) Sydney Law Review 451, 451; Stephen Norrish, ‘Sentencing Aboriginal Offenders – Striving for Equality Before the Law’ (Conference Paper, Legal Aid Commission Workshop, 2017) 3.

[81] Judith Bessant, ‘Australia’s Mandatory Sentencing Laws, Ethnicity and Human Rights’ (2001) 8(4)

International Journal on Minority and Group Rights 369, 369.

[82] Without Fear or Favour (n61) [1.32]; citing Eddie Cubillo from ’30th anniversary of the RCIADIC and the ‘white noise’ of the justice system is loud and clear’ (2021) 46(3) Alternative Law Journal 185-192, 189 ‘Indigenous Australians cannot help but feel the irony of statements made about the Rule of Law, and ‘one law for all’ when they bear the brunt of ‘criminal justice’ laws that are apparently universal on their face but are typically deployed to control and coerce Indigenous peoples’.

[83] Without Fear or Favour (n61) [5.151].

[84] See, eg, Judicial Commission of New South Wales ‘Community Confidence in the Justice System: The Role of Public Opinion’ Handbook for Judicial Officers (Web Page) <;>.

[85] Ibid. See also discussions on incarceration as a ‘rite of passage’ for Indigenous men, for example, E Ogilvie and A Zyl ‘Young Indigenous Males, Custody and the Rites of Passage’ (Australian Institute of Criminology, April 2001) 1; citing Chief Justice Wayne Martin, ‘For kids in the leafy western suburbs of [Perth], being sent to detention would be a horrendous prospect. It would be unthinkable. It would bring shame on their family. It would just be their worst nightmare. For Aboriginal kids, it does not have the same effect, because their cousin is in there, their brother has been there, and their father has been in prison. It just does not hold the same threat, the same effect, the same effective sanction. Tragically, in some communities, Aboriginal kids see it as just what you do, one of the things that you do as part of growing up—that you end up in detention or prison—because so many family members have been there’: Parliament of Australia Senate Standing Committees on Finance and Public Administration ‘Access to Legal Assistance Services: Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services ’Chapter 5: Reasons for High Indigenous Imprisonment Rates (Webpage, October 2016) [5.6] <>.

[86] Australian Financial Review, ‘Wiks Decision Disappointing’ AFR (online, 24 December 2006) <>.

[87] For a discussion of the subordination narrative, see Thomas Amy, Andrew Jakubowicz and Heidi Norman, ‘Does the Media Fail Aboriginal Political Aspirations? 45 Years of News Media Reporting of Key Political Moments (Aboriginal Studies Press, 2019) 8.

[88] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 [2] (Mason CJ, Brennan J, Deane J, Toohey J, Gaudron and McHugh JJ, dissenting Dawson J).

[89] Native title refers to the rights and interests to land and waters that flow from Aboriginal traditional law and customs. Where native title exists, the laws and customs of the Indigenous people who have a connection with the land determine the rights conferred (for example, to reside, hunt, fish or hold ceremonies) and who may exercise those rights. Native title is extinguished if the tribe or group loses its connection with the land: Jeff Kildea, ‘Native Title: A Simple Guide A Paper for those who wish to understand Mabo, the Native Title Act, Wik and the Ten Point Plan’ Human Rights Council of Australia (Revised Edition incorporating the Senate’s amendments, July 2008) 5>.

[90] Larissa Behrendt, ‘Mabo: Ten Years On’ (The Blackburn Lecture, Centre for International and Public Law Australian National University, 6 June 2002) 1; Behrendt (n20) 5; Paul Keating, (The Redfern Speech, 10 Dec 1992) <>.

[91] Behrendt (n90) 2, 4; Phillip Falk and Gary Martin, ‘Misconstruing Indigenous Sovereignty: Maintaining the Fabric of Australian Law’ in Aileen Moreton-Robinson (ed) Sovereign Subjects (Routledge, 2020) 33, 38.

[92] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 [83] (Dawson J).

[93] Behrendt (n90) 1; Behrendt (n20) 1, 6; Kildea (n89) 4; Michael Dodson,’Indigenous Culture & Native Title’ (1996) 21(1) Alternative Law Journal 2, 2.

[94] Behrendt (n90) 1; Kildea (n89) 6, 8; Dodson (n92) 2; Ben Smee, ‘Native Title System ‘Embeds Racism’, Australia’s First Indigenous Silk Says’ The Guardian (Online, 19 July 2018); Maureen Tehan, ‘A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of Native Title Act’ (2003) Melbourne University Law Review 523, 523ff.

[95] Kildea (n89) 9.

[96] Wik Peoples v Queensland [1996] HCA 40, (1996) 187 CLR 1 [2] (Toohey J, Gaudron J, Gummow J and Kirby JJ, dissenting Brennan CJ, Dawson J, McHugh J).

[97] Behrendt (n20) 5; Behrendt (n20) 6; John Williams and Fiona Wheeler, ‘‘Restrained Activism’ in the High Court of Australia’, in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts (Oxford University Press, 2007) 19, 33; see also Tanya Josev, ‘Twenty Years After the High Court’s Wik Decision, How Does the ‘Judicial Activism’ Charge Stand Up?’ The Conversation (Online, 11 April 2016) <; Larissa Behrendt ‘White Picket Fences: Recognizing Aboriginal Property Rights in Australia’s Psychological Terra Nullius’ (1999) 10(2) Constitutional Forum 50, 50; Amanda LeCouteur, Mark Rapley and Martha Augoustinos, ”This Very Difficult Debate about Wik’: Stake, Voice and the Management of Category Memberships in Race Politics’ (2001) 40(1) British Journal of Social Psychology 35, 35.

[98] Behrendt (n96) 50.

[99] Kildea (n89) 13.

[100] See eg., Lenore Taylor ‘Bad Blood on Wik’ AFR (Online, 19 November 1997) <>; Clemence Due, and Damien W. Riggs, ‘Representing ‘Australian Land’: Mainstream Media Reporting of Native Title’ (2010) 3(1) International Journal of Critical Indigenous Studies 26, 26ff; Michael Meadows, ‘Deals and Victories: Newspaper Coverage of Native Title in Australia and Canada’ (2000) 22(1) Australian Journalism Review 81, 81ff; Clemence Due, ‘Laying Claim to “Country”: Native Title and Ownership in the Mainstream Australian Media’ (2008) 11(5) Media Culture Journal <>.

[101] Behrendt (n90) 5; Behrendt (n20) 5.

[102] Behrendt (n90) 4.

[103] Kildea (n89) 14. Indeed, research on the outcomes of Native Title agreements and tribunal determinations suggests Aboriginal people have received only minimal benefits: Ciaran O’F, Aircheallaigh, ‘Unreasonable and Extraordinary Restraints: Native Title, Markets and Australia’s Resources Boom’ (2007) 11(3) Australian Indigenous Law Review 28, 28.

[104] For information on a Voice to Parliament see eg., Reconciliation Australia ‘A Voice to Parliament’ Reconciliation Australia (Web Page) <>; Gabrielle Appleby, ‘The Voice: What is It, Where Did it Come From, and What Can it Achieve?’ The Conversation (Online, 29 March 2003) <>.

[105] See eg., Michael Mansell, ‘Depending on Your Reasons, it’s Okay to Oppose the Voice’ SBS (Online, 21 April 2023) <>.

[106] See eg., Audrey Courty, Peter Dutton says Indigenous Voice will ‘Re-Racialise’ the Country in a Speech Linda Burney Describes as ‘Disinformation’ ABC (Online, 22 May 2023); Rita Pahini, ‘ NSW Liberal Democrats to take ‘firm stand’ against the Voice’ Sky News (Online, 21 April 2023) <>; Alexander Downer, ‘The Risks of Pushing for a Voice to Parliament’ AFR (Online, 31 Jan 2023) <>; Ralph Babet, ‘Voice of Racism: We Need to Unite as Australians, Not Divide on Racial Grounds’ The Spectator (Online 28 Jan 2023) <>; Pauline Hanson, ‘Indigenous recognition a regression to a racist Constitution, Pauline Hanson (Webpage, 5 August 2021) <>; Warren Mundine, ‘Don’t Paint Indigenous Opponents to the Voice as Race Baiters’ The Centre for Independent Studies (Web Page, 9 December 2022) <>; Josh Butler, ‘Tony Abbott tells CPAC an Indigenous Voice to Parliament Would Promote ‘Discrimination’’ The Guardian (Online, 1 October 2022) <>;

[107] Evan P. Apfelbaum, Michael Norton and Samuel Sommers, ‘Racial Color Blindness: Emergence, Practice, and Implications’ (2012) 21(3) Current Directions in Psychological Science: A Journal of the American Psychological Society 205, 205; Eduardo Bonilla-Silva, ‘The Structure of Racism in Color-Blind, “Post-Racial” America’ (2015) 59(11) The American Behavioral Scientist 1358, 1358; , Jennifer C. Mueller, ‘Producing Colorblindness: Everyday Mechanisms of White Ignorance’ (2017) 64(2) Social Problems 219, 219ff.

[108] Russell Taylor, ‘Indigenous Constitutional Recognition: The 1967 Referendum and Today’ Parliament of Australia (Web Page, Papers on Parliament No. 68) <>>; See also, Waller, Lisa and Kerry McCallum, ‘How Television Moved a Nation: Media, Change and Indigenous Rights’ (2018) 40(7) Media, Culture & Society 992, 992.

[109] Reconciliation Australia, ‘The Reconciliation Barometer?’ Reconciliation Australia (Web Page) <>; Iva Mencevska, ‘Truth Telling in Australia’s Historical Narrative’ (2020) 5(1) NEW: Emerging Scholars in Australian Indigenous Studies 1, 4.

[110] First Nations National Constitutional Convention, ‘Uluru: Statement From the Heart’ (Central Land Council Library, 2017)