Terror Australis: White Sovereignty and the Violence of Law
1. The central contention of this paper is that Australian law is a regime born of, and sustained through racial violence. This paper does not accept that there is an absolute separation between the workings of Australian law and the workings of white sovereignty. To make this argument I bring together two distinct instances of Australian law in order to show the inextricability of law/sovereignty and racial violence. The events of Tampa and most recently the Anti-Terrorism laws are both implicated in the production of a sovereignty that denies the violence of its origins as well as the violence of its contemporary manifestations. This argument requires a thorough reworking of common sense notions of the nature and function of Australian law. In this paper, law is not understood as a system that offers peace, order and neutral organisation. On the contrary, law is posited as a regime of violence that disguises its status as such by circulating a series of knowledges about itself which operate to deny its relation to violence. These knowledges circulate in the Tampa Federal Court judgement and in the Anti-Terrorism laws in ways that reproduce the Australian nation as a white possession.
The Unofficial Laws of the Local
2. The events of Cronulla in December 2005 evoked my memories of the racial politics of the south western Sydney High School I attended during the late 1980's. The weekly school assemblies were opportunities to assign criminality to the school population which was constituted by students who, like me were born in Australia but were clearly marked as not belonging. The language of non-belonging was not uttered in the explicit lexicon of race but was manifested in the legally constituted discourses of crime and disorder. For six years, on a weekly basis the Deputy Principal told us ethnics that we were hooligans, hoons and thugs. So here I was, Australian born at my local Australian high school but unable to occupy the position of Australian or local. Memories such as these attach to me in ways that I cannot shake off. Even now that through the passage of time I am distanced from the experiences of my suburban high school and am situated in the enlightened space of the university, I find the themes of exclusion and non-belonging repeat. I am acutely aware that the recognition of these repetitions is a burden I bear for not having the privilege of being race unconscious.
3. The Sydney Morning Herald reported the battle for Cronulla beach as being between the 'mobs of youths chanting racist slogans and carrying Australian flags' who attacked the 'youths of Middle Eastern appearance' (SMH 11/12/05). Further reporting informed that 'a group later made its way back to Cronulla for a retaliatory strike, where men of Middle Eastern appearance are reported to have bashed a local man unconscious' (SMH 11/12/05). This particular representation does not burden white youths with ethnic descriptors. In sharp and deliberate opposition 'Middle Eastern' is properly capitalised as it is deployed to give ethnicity to the non-belonging youths. This framing of the battle for Cronulla beach continues the work of disavowing the connection between whiteness and violence even as the local youths are reported as being violent. The opposition set up in the reporting between the 'men of Middle Eastern appearance' who bashed the 'local man unconscious' repeats the familiar yet unspoken: the impossibility for youths with ethnicity to be local. This in turn creates the so-called locals as the un-raced, rightful owners of Cronulla beach. The beach is represented as being their possession to fight for. After all, if they chant racist slogans whilst carrying the Australian flag their violence comes to signify as something other than criminal ethnic violence. White violence at Cronulla beach is subtly sanctioned by creating a discursive distinction between legitimate violence and ethnic criminal violence. This legitimisation of violence can be identified in the words of Prime Minister John Howard who said that 'it's important that we do not rush to judgement about these events. I do not accept there is underlying racism in this country. I have always taken a more optimistic view of the character of the Australian people' (The Age 13/12/05). Who are the 'Australian' people that Howard is optimistic about? Why should this event be shielded from immediate judgement? Who is it that can occupy the position of not accepting that there is underlying racism in Australia? And importantly for this paper, which institutionalised locations of power come under the critical spotlight when one goes against Howard's wishes and does precisely what he suggests should be avoided?
4. I live within walking distance of Brighton-le-Sands where 'riot police were also called...to control groups of brawling youths who had reportedly thrown projectiles at police' (SMH 11/12/05). This description posits the role of law and police as one that is to 'control groups' and to therefore restore peace and order. This common sense construction of law and policing is highly ideological in that it erases the violent colonial relations of power that have allowed white law to occupy such a position. Rockdale City Council, the council in which Brighton-le-Sands is situated, describes itself as being situated on 'historic' Botany Bay. The violence done in the name of invasion and of empire is transformed and made static through the word 'historic'. And yet it was colonial images of violence supported by the flag of empire that came to mind as I watched the reporting of flag burning at Brighton-le-Sands. It was the British flag that Cook had forced into the earth upon invasion and it was in such manoeuvres that white sovereignty began to be violently asserted. As Schlunke puts it, 'in 1770 James Cook arrived on the shores of Australia...The single ship was followed by a fleet and soon a flood. A systematic dispersal of Aboriginal people occurred which used massacre, reservations, diseases and 'removal' of children amongst other techniques' (2002: 12). When framed in this way, the location of Botany Bay that appeared to be under threat by ethnic violence can be seen as having been constituted by a form of white sovereign violence which continues to be retrospectively legalised. The law relies on forms of visible disorder like the 'brawling youths' who need to be controlled by 'riot police' to continue to naturalise the law's function as restoring order and not as being implicated in the ongoing project of white sovereignty which requires all locations to be treated unproblematically as legitimately white possessions. Representations of explicit violence perform the ideological function of producing the impression that law is free from violence since it is simply a remedy for it.
5. For Schlunke 'the beach is the common figuring of the space between the sea and the land. In a popular Australian context 'we' are said to define ourselves through the beach with egalitarian sands and sunbaked easy-going bodies' (2002: 2). Importantly she writes that 'when refugees are written and spoken of the beach disappears to be replaced by shores and borders' (2002: 2). These representations, Schlunke argues, represent the shore as vulnerable and as threatened by the 'un-negotiated penetration by strangers' (2002: 2). So if the beach disappeared when the Tampa refugees were violently denied entry from the outside in, can the beach also disappear when the threat comes from the other direction, from the inside? At this historical juncture I contend that the beach is even more than before metonymically symbolic of white Australia. This is an Australia that has to be protected on two fronts. It must be protected from the lebs and wogs who are already inside and from the refugees who threaten from the outside. Both of these forms of so-called defence, position the nation, the border or the beach as an incontestably white possession. They position white sovereignty as being one, singular and incontestable. This is a sovereignty that denies the violence it is founded upon. When the violence of white locals is subtly endorsed this promotes a sense of white entitlement to land, sea and shore. The colonial and violent logic that underpins both the denial of entry at the border to refugees and now the denial of the beach to lebs and wogs, is not the exclusive domain of white extremists. The violence of white extremists is open and visible as they fight on the beaches in the name of nation. I suggest that the operations of Australian law are also about producing the nation. The multiple forms of violence that law takes to this end are often invisible.
Preventative Detention is required by Law
6. When the 438 refugees on board the Tampa were being 'preventatively detained' in the most dangerous of conditions mid-ocean it was so that Australia's borders might not be breached. What sort of nation is imagined by those who seek to legalise this type of exclusion? And importantly, how could law be mobilised to bring about and then retrospectively justify something so violent? The refugees on board the Tampa, even before they had entered Australia, even as they were declared illegal and therefore outside the nation, were subjects of and subject to Australian law and its inbuilt violence. By being kept at bay, by being violently denied mercy or entry to Australia, they were made to represent the antithesis of the Australian nation, even though it was precisely their exclusion that constructed the Australian border in that historical moment. The Tampa refugees were made to function as the outside of the nation (Perera, 2002). The refugees functioned as the outside of the law even as they were incorporated and inside the very operations of both the nation and the law. The power to decide to exclude is an effect of white sovereign power. Every time this power is activated it denies the violence that enables it.
7. The Migration Act of 1958 set the stage for the Tampa incident, creating the enabling conditions for compulsory and indefinite imprisonment of refugees. When the Tampa refugees were held in oceanic detention it was because the statutory rules relating to compulsory detention of 'unauthorised arrivals' were not activated. If the Migration Act had been applied at the time of the Tampa incident, the refugees would have had to be permitted to enter the country. Whilst this outcome would have been highly problematic in and of itself given that the refugees would have been compulsorily taken into immigration detention, the non-application of the statutory law in this case meant that the refugees were denied the right to apply for protection visas. The statutory law of the Migration Act was not applied because there was another more useful law that could be used to defend white Australia. That law was the executive power.
8. The logic of preventative detention also underpins the Anti-Terrorism Bill (No. 2) 2005 which is the latest legislative effort by the Government to fight terrorism. Division 105 of the Anti-Terrorism legislation concerns itself primarily with the prevention of an imminent terrorist act. This legislation is part of the criminal code and yet what it is attempting to do in the prevention of imminent acts seems to exceed the alleged limits of criminal law. Ordinarily, for a crime to be proven the elements of mens rea and actus reus need to be present. In the context of the Anti-Terrorism laws, it seems aporetic that Division 105 aims to prevent something imminent from occurring. How can it be proven that something was inevitable if it has been prevented from occurring? To prevent something inevitable from happening is to ultimately make it unprovable. This runs contrary to established principles of criminal law which demand that both a physical act and an intention to do the act must be present for a successful prosecution. In this legislation, intention which is usually ascertained in conjunction with a physical act is invoked in the absence of an act. Thus the term imminence operates to assume criminality before the fact. This aporia is not just an isolated instance of bad legal logic. These logical inconsistencies operate productively to simultaneously constitute and disguise Australian law's violence.
9. The Anti-Terrorism Bill has been met with alarm by commentators who suggest that in pursuing its objectives the 'preventative detention order regime breaches the human rights to be free from arbitrary detention and due process and cannot be said to be subject to an effective procedure of judicial review that provides adequate safeguards against violations of the human rights of the persons affected' (Charlesworth, Byrnes, McKinnon, 2005). Whilst these criticisms are incredibly important and draw attention to highly problematic aspects of the effects of the law, they do not explicitly name the racial dimensions of this law. These critiques also serve to position this particular legislation as 'bad' law since it is capable of breaching human rights protocols, leaving other laws and the violent nature of law itself un-interrogated. I suggest that these new laws warrant critical attention but this attention must also turn on what violence law is capable of, since violence is not external to law. Criticisms of Anti-Terrorism legislation must take into account that when the Tampa refugees were preventatively detained mid-ocean this was also Australian law operating. The oceanic preventative detention of the refugees was administrative law being used to assign criminality to persons who had committed no crime. The legislative version of preventative detention will statutorily enshrine the power to designate as criminal those who have not committed a criminal act. These executive powers of assignment are exercised through the logic of white sovereignty.
Executive Power as White Sovereign Power
10. Executive power was explained by Justice French in the Tampa judgement by saying that 'the executive power of the Commonwealth is vested in the Queen, is exercisable by the Governor General as the Queen's representative and extends to the execution and maintenance of this Constitution and the laws of the Commonwealth. It is also limited by those terms in so far as it will not authorise the Commonwealth to act inconsistently with the distribution of powers and the limits on power for which the Constitution provides. Nor will it authorise the Commonwealth to act otherwise than according to the rules of the Commonwealth' (2001). If this definition were 'followed' then it stands to reason, that the government be obligated to follow statutory law- that is- the Migration Act . This would have meant bringing the refugees into Australia and allowing them to apply for protection visas. And yet the reason the appeal was brought in Tampa was because the government was not compelled to conform to law. So what was 'law' in yet another moment of aporia? How was it possible for the Federal Court to enable the government to take this position on refugees on the grounds that refugees were 'illegals' at the very moment that the government was bypassing law?
11. When Justice French claims to follow established legal precedent on the proper exercise of executive power his decision is insulated from critique that his repetitions function to reproduce the violence that founds and maintains the white sovereign nation. He states that 'the executive power of the Commonwealth covers a wide range of matters, some of greater importance than others. Some are connected with Australia's status as an independent, sovereign nation state. The greater the significance of a particular executive power to national sovereignty, the less likely it is that, absent clear words or inescapable implication that the parliament would have intended to extinguish the power...these powers may be exercised for good reasons or for bad. That debate however is not one for this court to enter' (2001). French's suggestion that his court and his utterances are not part of the debate obfuscates the fact that he is already implicated in the exercise of white sovereign power. With his disclaimer, he insulates his judgement from accusations that it is a racial exercise because he sets up sovereignty, the right to police borders, as incontestable. The only thing being done then in 'finding' that this power exists, according to this logic is providing 'protection' for the border. This is precisely where the border is being violently instituted. This is the gate being shut on those who threaten the whiteness of the nation. And this is precisely where the discussion about law's violence is being shut down. The story of violence against refugees is narrated as the story of the nation having to defend itself. In this decision the incontestability of white sovereignty is being produced, in fact it is being legislated, by and through the institution of the Federal Court. The Federal Court disavows its central role in re-producing and then policing national borders by suggesting they are simply accessing law that is always already there. These moments of disavowal render racial violent exclusion invisible. Violence is re-written as acts of protection or as the pure application of law.
12. In the Tampa judgement Justice French declared that his court was not part of the contentious debate relating to sovereign power. The latest Anti-Terrorism laws are further de-limiting the appropriate realms for debate about the nature of law and sovereignty in Australia. Schedule 7 s4 ss3 defines seditious intention amongst other things as bringing the Sovereign into hatred or contempt, urging disaffection against the Constitution and or either House of Parliament or promoting feelings of ill will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth. The legislation is written in a way that suggests that violence can only move in one direction. Whilst violence is being represented as being capable of being directed towards the institutions of sovereign power, those institutions do not signify as themselves being sites from which violence can emanate. This Anti-Terrorism statutory framework will function as though it has no problematic origin. When it is applied its legitimacy need only stem from the fact that as statutory law it must be applied and followed. When courts position themselves as simply 'finding' and 'applying' law they actively generate the legal fiction that the law has mystical, and not violent foundations.
13. In the Tampa case, 'the law' in the guise of the Federal Court decided to exclude by invoking sovereignty. Sovereignty was invoked as if from the heavens and applied un-problematically. Law and sovereignty operated as though their own foundations were/are mystical (Derrida, 1992: 11). This exclusion that kept the refugees at bay, proceeded along the assumption that both law and sovereignty are one and singular. When the sovereign decides to exclude refugees, this is violence. When the sovereign is invoked as a category that is singular and requires no interrogation, this is an instance of a deeper violence. Whilst the Tampa judgement is about sovereignty it is also the category that is insulated from critique (Kerruish, 2002: 273). Whilst the court does justice to the question of sovereignty by finding it to be a category requiring no questioning, the question of sovereignty remains aporetically, non-justiciable.
14. Contemporary Australian law signifies as the law, precisely because of what it excludes. When law signifies as being neutral, as being one and as mystical in its foundation it hides the violence of its origins as well as the violence involved in its continuing operations. Aileen Moreton-Robinson argues that 'Australia was acquired in the name of the King of England. As such patriarchal white sovereignty is a regime of power that derives from the illegal act of possession and is most acutely manifested in the form of the Crown and the judiciary...The possessive logic of patriarchal white sovereignty is predicated on exclusion; that is it denies and refuses what it does not own- the sovereignty of the Indigenous other' (2004: 5). Moreton-Robinson's work is inscribed with repetition. References to patriarchal white sovereignty permeate her text and her analysis. Her repetition forces me to ask why I understand her repeated reference to patriarchal white sovereignty as repetition, but do not necessarily think it repetition when 'law' or 'sovereignty' are continually invoked without descriptors attached to them, in cases like Tampa as well as in Anti-Terrorism legislation? These strategic repetitions in her text highlight the role that repetition plays in naturalising dominant and normative meanings that accrue around concepts such as 'law' and 'sovereignty'. With the ideological function of these categories hidden, they come to signify as the normal, neutral and in that sense the only legitimate form of 'law' and 'sovereignty'. To be considered non-ideological is precisely the ideology of patriarchal white sovereignty. According to Moreton-Robinson this is achieved by 'informing and circulating a coherent set of meanings about white possession as part of common sense knowledge' (2004: 4).
15. Moreton-Robinson's work is critical to re-theorising 'law' and 'sovereignty' precisely because she disrupts the common sense assumptions that are instrumental in perpetrating racial violence, whether it is literal or symbolic. The invisible power of patriarchal white sovereignty comes from its ability to appear neutral and transparent (2004: 6). By identifying the racial and patriarchal dimensions of sovereignty, and by naming it as a power regime born from illegality, Moreton-Robinson's work disrupts the common sense notion that Australian law and sovereignty are categories free of violence. Her work offers an important challenge to legal scholarship to find ways to disrupt the highly ideological 'common sense' notions of law and sovereignty and to make visible the idea that law and sovereignty do not exist in the singular only.
16. Whilst the High Court Mabo decision has been important for overturning the doctrine of terra nullius what this overturning was not capable of achieving was to bring the nature of white sovereignty under interrogation. The court stated in another of its disclaimer moments that it could not inquire further into an area it said would fracture the Australian legal system (Watson, 2002: 259). Thus this is a moment where sovereignty is positioned as existing outside of law. However it is the 'finding' that sovereignty is outside the reach of justice that betrays that sovereignty is always already inside the legal order. Law and sovereignty are then indissociable in the way that they operate. When the Australian legal system was established through force it attempted to eradicate all other forms of law that might judge its legitimacy. It continually declares certain questions, including the one about its own legality, to be non-justiciable. Non-justiciability therefore is the legal category that makes it illegal to question the law's foundation. It is also the category of the non-justiciable then is the legal process through which the violence of law is relegated to the realm of the invisible. The latest attempt at insulating white sovereignty from critique has been enshrined in Anti-Terrorism legislation.
17. John Howard's assertion that 'there is no underlying racism in Australia' in response to violence on Sydney's beaches is unsustainable. The Australian legal system, which founds and sustains Australia, is born of racial violence and perpetuates itself in a series of manoeuvres which always have a relation to race. And yet it is also the legal system that is most guilty of disguising the violence on which it depends. I have not discussed terrorism in this paper even though I have discussed some parts of the Anti-Terrorism legislation. This is because I have tried to demonstrate that the law itself must be critically questioned precisely for the way in which it sustains its own violent white power by exercising it against others who are deemed to be antithetical to it. The very title, Anti-Terrorism legislation, is a contradiction in terms. Terror and violence are not external to law but are built into the very core of Australian law. Law's self generated knowledges require critical examination to highlight them as being precisely the locations from which violence emanates.
Maria Giannacopoulos is a final year Ph.D. student and tutor in the Department of Critical and Cultural Studies at Macquarie University. Her doctoral research and publications are concerned with the intersections of law, sovereignty, violence and race.
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