Law, Lawyers and Justice

Through Australian Lenses

Kim D Weinert, Karen Crawley, Kieran Tranter, Kim D Weinert, Karen Crawley, Kieran Tranter

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000048032
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book engages with the place of law and legality within Australia's distinctive contribution to global televisual culture.

Australian popular culture has created a lasting legacy – for good or bad – of representations of law, lawyers and justice 'down under'. Within films and television of striking landscapes, peopled with heroes, antiheroes, survivors and jokers, there is a fixation on law, conflicts between legal orders, brutal violence and survival. Deeply compromised by the ongoing violence against the lives and laws of First Nation Australians, Australian film and television has sharply illuminated what it means to live with a 'rule of law' that rules with a legacy, and a reality, of deep injustice. This book is the first to bring together scholars to reflect on, and critically engage with, the representations and global implications of law, lawyers and justice captured through the lenses of Australian film, television and social media.

Exploring how distinctively Australian lenses capture uniquely Australian images and narratives, the book nevertheless engages these in order to provide broader insights into the contemporary translations and transmogrifications of law and justice.

Part I
The unsettled law and justice of Australia

Chapter 1
Australian lenses on law, lawyers and justice

Kim D. Weinert, Karen Crawley and Kieran Tranter

THE NIGHTINGALE

In 2019, Jennifer Kent’s The Nightingale,¹ the follow-up film to her well-received genre horror first film The Babadook,² caused controversy at the Sydney Film Festival. Set in 1825 in the British penal colony of Van Diemen’s Land, the film tells a highly graphic story of rapes, murders and revenge that some audience members were unable to sit through.³

The Nightingale is an Australian story. It is an Australian production and has an Australian director. It was filmed on location in the haunting Gothic forests of Tasmania, and it is set during the period of Australian colonial penal history. Many of the cast are Australian actors. But its Australianness is more than the nationalities of its production, personnel and setting. The Nightingale projects something deeply insidious and horrifying about law and justice within Australia. Those who enact the law in the film – the British military and its governing regime – were the abusers of the young Irish convict Clare (Aisling Franciosi) and the murderers of her husband and young child. Their law was a law of rights – of ownership of this woman and her body – that was promoted and protected by the overarching legality of the penal regime. Law and justice are in opposition in The Nightingale. The rule of law is revealed as a naked exercise of biopower in the furtherance of colonial occupation. As the film descends into a vengeance chase by Clare and her reluctant Aboriginal tracker Billy/Mangala (Baykali Ganambarr), film-goers become witnesses to the genocide of Tasmania’s Aboriginal people in what is now recognized as the Black War.⁴ Through Kent’s lens, this violence is shown as a pogrom, as racial violence emanating from careless anger and utter dehumanization. The Nightingale projects law and justice in Australia as a bloody mess composed of gender, race, bodies and land ground together by pure violence. This is an unflinching and unsettling representation of law and justice – something that would be easier to walk away from than to watch and deal with.

This book gathers chapters on law, lawyers and justice through Australian lenses. Like The Nightingale, what is revealed has an unsettled nature. It would be easy to walk away; it would be easy to historicize and – like a certain Australian prime minister – to refuse to say ‘Sorry’ and to place the trauma of Australia into a distant colonial past.⁵ The contributors to this volume certainly do not do this. Engaging with law and justice through Australian lenses reveals that its violent legality is profoundly unjust, that cherished notions from the jurisprudence of the North – the rule of law, sovereignty, rights – function as weapons of the settler state and that the actual site of law is not the institutions of courts, law offices and parliaments, but always bodies and the land.

This book emerges from a lacuna in the ever-developing field of law and popular culture,⁶ which has found a diverse and growing audience among scholars and students of law. There is something liberating in seeing law beyond the posited rules and institutions of the legal system. The field of law and legality is pervasive: it does not just manifest in formal texts, officers and practices, but inundates all cultural life; it is animated, demonstrated and critiqued through cultural arte-facts. In recent years, law and popular culture has become an expansive field of study, building upon more established ‘law and literature’ media of fiction and film to embrace television,⁷ video games,⁸ street art,⁹ music,¹⁰ comics,¹¹ visual art¹² and the multimodalities of fan prosuming.¹³

A core location for law and popular culture – especially in its seeking out law in non-traditional mediums – has been the Australian legal academy. Australian scholars have made substantial contributions to the foundational theorizing and practice of law and popular culture, exemplified by the work of Margaret Thornton,¹⁴ Desmond Manderson,¹⁵ William P. MacNeil¹⁶ and Alison Young.¹⁷ Following these founding contributions, a range of Australia-based scholars have forged important contributions within law and popular culture, often called ‘cultural legal studies’; they include Edwin Bikundo, Karen Crawley, Penny Crofts, Kirsty Duncanson, Marett Leiboff, Edward Mussawir, Timothy D. Peters, Honni van Rijswijk, Cassandra Sharp and Kieran Tranter.

This Australian law and popular culture movement has an interesting dimension. Often these scholars’ engagement is with global texts and franchises – in a globalized media space and a globalized academy, such examinations and critiques are both needed and vitally important. There cannot be a sort of Trump trade war nationalism where only scholars who share the nationality of the cultural text have legitimacy in its legal exegesis. Australian popular culture is particularly awash with cultural products from the United States, the United Kingdom, Japan and Korea. As a settler state, Australia’s importation of culture is a defining characteristic; however, this international, global focus of analysis could be seen as disconnecting the scholar from their own life and land. As shown by The Nightingale, Australia’s colonial history, geography and economy, as well as its past and present social anxieties, have had a particular legacy in law, legality and governing that is written in and through Australia’s own cultural artefacts. So, while Tranter might write repeatedly about the legalities of time and memory that materialize through the very British science fiction series Doctor Who, that does connect with Australian concerns as living legal subjects, caught in a vortex of imagined pasts and projected futures, it is worked through denotations of the ‘Sceptred Isle’, aliens speaking perfect BBC English, bow-ties, memories of Empire and London Metropolitan police boxes.¹⁸

This does not mean that Australian law and popular culture scholars are purely cultural expats, watching, writing and yearning for representations of living from another hemisphere. In the foundational Lex Populi, William P. MacNeil spends some time with the Kerrigans from The Castle,¹⁹ seeing in the film a complex set of projections around particular Australian concerns with class, race, land and ownership against the background of the common law Mabo and Wik native title decisions.²⁰ That legal reworkings of the foundational myths of the settler state in the Mabo decision go to the core of Australian culture is the premise of Felicity Collins and Therese Davis’s Australian Cinema After Mabo.²¹ Like MacNeil’s exploration of The Castle, these authors identify a distinct inversion of earlier settler state social imaginaries in Australian films from the late 1990s through to the early 2000s,²² showing how Australian law and its legal preoccupations manifest in culture.

The legalities, violence and trauma of the settler state projected through Australian cultural artefacts have been identified by other law and popular culture scholars. When he is not out of this world via various non-Australian science fiction franchises, Kieran Tranter has engaged with George Miller’s violent Mad Max films²³ as projecting a distinctly Australian integration of the motor vehicle into the imagining and structuring of governing regimes.²⁴ Honni van Rijswijk has drawn upon First Nation Australian author Alexis Wright’s fantastic, dystopian novel The Swan Book²⁵ to emphasize the interconnectedness of suffering, law and violence. The novel is set in a future of cataclysmic climate change where the Northern Territory Intervention has endured and intensified; van Rijswijk writes that, to understand the protagonist’s suffering,

means to mourn land and animals, laws, language and culture, and also to understand that land, animals and laws mourn. The argument of The Swan Book is that these harms cannot be isolated: the rape of women and children is connected to state practices of incarceration and punishment, to poverty, abuse of the rule of law, and to forced assimilation. The failure of law to register the interconnectedness of these harms in law’s archive is part of law’s violence.²⁶

Manderson’s Kangaroo Courts and the Rule of Law²⁷ explores D. H. Lawrence’s 1922 novel Kangaroo,²⁸ about the sojourn to Australia of an English author and his wife and their interaction with a group of ex-Diggers galvanizing towards fascism. Paralleling Lawrence’s feverish imagined Australia with Carl Schmitt’s Weimar concerns with the terminal decline of the West due to the ‘neutrality’ of positivism and liberalism, Manderson begins to articulate the dilemmas of modernism – the dreams turned nightmares of both rati...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Preface
• Notes on contributors
• PART I The unsettled law and justice of Australia
• PART II Australian gendered identities and law
• Index