Innervating Colonialism: Exploring the Retraction of Indigenous Rights Through Two Sentencing Provisions

Abstract

This essay reflects on the contention that the global phenomenon of neoliberalism explains the contemporary retreat from Indigenous rights recognition in Australia in the context of two legislative provisions concerning the use of Aboriginal law in sentencing that was introduced in the mid-2000s by two different governments. Each sentencing provision purported to address claims of judicial tolerance of violence against Aboriginal women and children, specifically judicial misperceptions of Aboriginal law regarding this. But the provisions reflect polarised policies regarding recognition of Aboriginal law: one was introduced by a territory government that explicitly pursued a policy of respectful engagement with indigenous knowledges and the advancement of Indigenous self-determination; the other was introduced by a federal government as part of a larger imposition in that territory of a policy of overt intervention and control into the lives of Aboriginal peoples. The federal provision effectively rendered the territory provision nugatory. What the essay finds is that while neoliberalism facilitated the retraction of Indigenous rights, it does not fully explain that retraction. The retraction is better understood as part of a longer trend of colonialism that has never been disrupted, and that has enlisted to its ends various contemporary discourses. In this case, one can identify feminist logics and advocacy (hoping to support the interests of Indigenous women) are enlisted to serve colonialism's purposes; more nuanced and anti-essentialist feminist positionings may also be twisted to this end. A further finding of this essay is that even the legislative provision that attempted to respect Aboriginal rights and recognise Aboriginal law could not achieve what its drafters intended, because the framework into which it was inserted had not been decolonised. The story of these two provisions offers some support to the contention that Australia has never desisted in colonialism, and that colonialism will draw upon (and twist where necessary) other discourses to facilitate its ends of continually dispossessing and delegitimising first nation peoples here.