Thoms had not left Australia since 2003, nor had Love since 1985, but in 2018 both were convicted of assault occasioning bodily harm, receiving eighteen- and twelve-month prison sentences, respectively. Section 501(3A) of the Migration Act 1958 required that the then Minister for Home Affairs, Peter Dutton, cancel the visa of anyone sentenced to imprisonment for twelve months or longer, triggering their removal from Australia. Thoms and Love appealed to the High Court, arguing that the Mabo judgment recognised the ‘connection which Aboriginal people have with land and waters in Australia’, and accordingly had ‘recognised that Aboriginal persons “belong” to the land’.

In international law, the status of non-citizen is generally considered coterminous with ‘alien’. But Thoms and Love contended that the relationship between First Nations peoples and land in Australia was incompatible with alienage; each was a ‘non-citizen, non-alien’, precluding their removal. To establish indigeneity, the plaintiffs proposed a test based on Justice Gerard Brennan’s Mabo judgment: Aboriginal or Torres Strait Islander descent; self-identification; and recognition by an Elder or person holding traditional authority.

The last of these criteria worried the High Court’s judges. For Chief Justice Susan Kiefel, in a statement echoed by Justices Stephen Gageler and Patrick Keane, determining legal status by reference to the authority of Elders was tantamount to ‘attribut[ing] sovereignty to Aboriginal groups’. Since Mabo, the judges claimed, Australian courts had consistently rejected Indigenous sovereignty. The High Court has, in fact, rejected it for even longer: in Coe v Commonwealth (1979), Justice Harry Gibbs held that ‘[t]he contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain’. Instead, as Chief Justice Murray Gleeson and Justices William Gummow and Kenneth Hayne put it in 2002:

what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty … that is not permissible.

Judicial assertions of the Crown’s exclusive sovereignty and the concomitant denial of First Nations sovereignty provide the impetus for Russell Marks’s Black Lives, White Law: Locked up and locked out in Australia. In the last decade, First Nations activists and scholars, including Professor of Law and Tanganekald and Meintangk woman Irene Watson, and Palawa activist and lawyer Michael Mansell, have asserted the importance of recognising First Nations people’s continuing sovereignty. Similarly, Teela Reid, a Wiradjuri and Wailwan lawyer and activist, has demanded that Australia ‘embark on a reckoning with the truth of its past’ through recognising the violence experienced by First Nations peoples and their unceded sovereignty.

Marks frames his contribution to this argument as a response to the over-representation of First Nations peoples in Australia’s prisons. As he writes, thirty-one years after the Royal Commission into Aboriginal Deaths in Custody sought to reduce First Nations people’s incarceration rate, Indigenous incarceration has increased colossally. As the Uluru Statement from the Heart put it, First Nations peoples in Australia ‘are the most incarcerated people on the planet’. Marks presents the statistical evidence:

If you’re an Indigenous man, you are now more than fifteen times more likely to be locked up than a man who isn’t Indigenous. If you’re an Indigenous woman, you’re more than twenty-one times more likely to be locked up than non-Indigenous women. Even more glaring are the disparities among children. In Western Australia, for instance, an Indigenous child is more than fifty times more likely to be locked up than a non-Indigenous kid.

Black Lives, White Laws argues that following the violent and illegal implementation of Crown sovereignty in Australia, settler Australia has subjected First Nations peoples to a criminal justice system that denies their sovereignty with devastating results. Marks presents his case in two parts. The first focuses on the historical implementation of criminal law jurisdiction over Indigenous peoples – the establishment of exclusive sovereignty. The second looks at the current practice of Australia’s criminal justice system, focusing on the Northern Territory, where Marks has worked as a defence lawyer for the North Australian Aboriginal Justice Agency (NAAJA).

For Marks, the key features of Australia’s criminal justice regime were established early: the asymmetrical governance of settlers and Australia’s first peoples in courts that practised ‘settler law’; and the denial of a parallel Indigenous legal system. Settlers tried for murdering First Nations peoples were typically acquitted on the basis that Indigenous peoples were not Crown subjects, as the defence counsel argued in the 1827 acquittal of Nathaniel Lowe. But crimes against settlers by First Nations peoples were punished with incarceration and execution.

Violence between First Nations people progressively came under settler jurisdiction through the nineteenth century. The standard justification was that Indigenous people were too backward to meet the threshold for sovereignty, and thus required governance by settler law. As Justice William Burton put it in R v Murrell (1836), ‘the various tribes have not attained … amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own’.

Courts gradually recognised the difficulties inherent in applying settler law to Indigenous peoples who rarely understood it, often didn’t speak English, and lived their lives predominantly in terms of the laws of their own communities. The solution, according to Marks, was the judicial maxim ‘sentence, but leniently’. Courts would make a symbolic show of sovereignty – the trial and conviction of the accused – before a performance of clemency: a suspended sentence, justified either because the crime was an act required under tribal law or would otherwise be punished under tribal law.

Sentence, but leniently was an imperfect solution, and it relied on an imperfect understanding of Indigenous law. Defence lawyers representing First Nations clients accused of sexual assault or domestic violence would often attempt to excuse the violence on the basis that Indigenous society was violently patriarchal. Courts accepted these claims. But as Marks points out, this ignored contrary evidence about First Nations cultures. According to Women’s Business: Report of the Aboriginal Women’s Task Force (1986), ‘settler courts’ punishments for very serious crimes like rape and murder were “significantly milder” than punishments offenders would receive under Aboriginal law’. Where violence occurred, First Nations women argued that Indigenous law was not to blame, but the introduction by settlers of ‘a standard of violence and a culture of abusing alcohol’.

The resulting backlash against lenient sentencing ignored this evidence. Instead, it began from the premise defence lawyers argued and courts accepted – Indigenous communities were inherently violent – and proceeded to justify the aggressive implementation of settler law. This backlash, ostensibly motivated by concerns over the safety of First Nations women and children at the hands of a violent Indigenous culture, is exemplified by the 2007 Northern Territory Emergency Response (NTER). But direct implementation of exclusive sovereignty hasn’t made First Nations women and children safer. It has locked them up. By 2017, the number of First Nations women imprisoned in the Northern Territory tripled; for children it doubled.

Marks draws a direct line between the logic of early cases such as R v Murrell and the NTER. Again, First Nations peoples in Australia were adjudged incapable of sovereignty. The result has been the implementation of a settler sovereignty expressed through a legal system that actively discriminates against the country’s first peoples. The criminal justice process remains a key front in the extension of this colonial regime across Australia; stereotypes of violent (or drunk, or drug-addicted) First Nations peoples are among the principal weapons in this cause.

The Royal Commission into Aboriginal Deaths in Custody recognised that the Australian history of Indigenous dispossession, removal, and forced assimilation was a key cause of the rate of incarceration of First Nations peoples. Among its proposals was self-determination. As Marks argues,

empirical research demonstrates the human need to be self-determining. The more people perceive that they have some measure of control over their lives, the healthier they tend to be – and the less often they experience or perpetrate violence, self-harm, suicide, mental illness.

But First Nations peoples haven’t been given this opportunity. Instead, maximum sentences have been increased. The Northern Territory has implemented mandatory minimum sentences. Remand is used to induce guilty pleas. As Professor of Indigenous Health and Mununjali and South Sea Islander woman Chelsea Watego has argued, punitive responses to domestic violence and the expansion of definitions of domestic violence have resulted in skyrocketing convictions of Indigenous women. Traumatised children are sent to violent and authoritarian youth detention centres – when they aren’t sent to adult prisons. Public drunkenness laws allow police to lock up people on the basis that they appear drunk, regardless of whether they have consumed alcohol.

If this is intended to reduce incarceration, it is not working. The Northern Territory has the highest recidivism rate in Australia. As Marks points out, aggressive state intervention is likely responsible: research shows that ‘punishing an already traumatised person may induce more of the unwanted behaviour’. At the same time, police who have killed First Nations people are acquitted. Alice Springs judge Greg Borchers described one defendant as behaving ‘like a primitive person’ and accused a woman of participating in ‘that great Indigenous fashion of abrogating your parental responsibility’, but was found not to have committed serious judicial misconduct. In this context, organisations like NAAJA have a critical advocacy role, but Marks laments the organisation’s reluctance to use its power to speak out against injustice.

Concluding, Marks provides glimpses of an alternative future. The Uluru Statement from the Heart demands recognition of the unceded sovereignty of First Nations peoples in Australia. Australia’s reliance on incarceration is not ‘a fact of nature’ but a product of choice; First Nations legal systems have never used it. Alternatives to incarceration have positive effects. Marks concedes he doesn’t know the solution; Black Lives, White Law is pre-eminently a demonstration that ‘the status quo offers no solution’. But empowering First Nations peoples, respecting Indigenous law, and recognising that prison is not necessary point towards a better future.

Though Marks does not discuss Love v Commonwealth; Thoms v Commonwealth (2020), the case appears to fit into his framework. First Nations men are convicted of crimes and respond by asserting their rights as members of Indigenous communities who have inhabited these lands for tens of thousands of years. They are confronted with a judiciary that denies their rights and asserts the exclusive sovereignty of a Crown that dispossessed them and whose law systematically discriminates against them. But Kiefel, Gageler, and Keane were in the minority; Love and Thoms won.

The majority judgments reveal an account of Australian law that complicates Marks’s story. They did not recognise First Nations sovereignty: their arguments were ‘directly contrary to accepting any notion of Indigenous sovereignty persisting after the assertion of sovereignty by the British Crown’. But they held that Indigenous rights could restrict Crown sovereignty. For Justice Virginia Bell, for example, although the power to determine and expel unlawful aliens ‘was an attribute of every sovereign state … the exercise of the sovereign power of this nation does not extend to the exclusion of the Indigenous inhabitants from the Australian community’. Love and Thoms, as First Nations people, could not be classified as aliens, and could not be removed from Australia. Indigenous rights, in this instance, trumped sovereign power.

Marks claims that ‘settler law doesn’t even recognise First Nations law’. But Love suggests that First Nations law may have more authority than he gives it, as rights attaching to indigeneity – a status determined in part by the authority of Elders – restricted the exercise of sovereignty. Indeed, though native title law does not involve direct recognition of Indigenous laws and customs, as Brennan put it in Mabo, it ‘has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’. In other words, native title is grounded on the continued observation of First Nations laws and customs.

Brennan himself conceded that sovereignty ‘carries the power to create and to extinguish private rights and interests in land’. But High Court judges have contemplated placing native title on a surer footing. In Coe, former Whitlam government attorney-general and High Court judge Lionel Murphy suggested that First Nations land rights could only be extinguished by paying compensation. In Mabo, Justices William Deane, Mary Gaudron, and John Toohey all argued that Indigenous consent or compensation was required to extinguish native title. Love’s restriction of sovereign power in the name of Indigenous rights represents both a continuation and an expansion of these earlier arguments.

Black Lives, White Law provides a scathing attack on the failures of Australia’s criminal justice system, highlighting how people from police to politicians have disenfranchised First Nations peoples, inflicting acute mental and physical suffering on them. But Marks’s treatment of ‘settler law’ as a monolithic institution that upholds a one-sided regime favouring the Crown’s exclusive sovereignty neglects how High Court judges have worked to curtail sovereignty in the name of Indigenous rights. Marks defines sovereignty as the ‘the power to govern, to make laws, to set the rules about who’s in and who’s out and what happens here’. But Love shows that sovereignty in Australia does not always extend this far regarding First Nations peoples. If rights based on Indigenous laws and customs are potentially superior to sovereignty, then ‘sovereignty’ may not be the only form of legal authority. Sovereignty, like incarceration, is not natural. It is a term and practice of governing with its own history. In Australia, recent High Court developments have resulted in its reduction. If the use of incarceration is a choice, perhaps the focus on sovereignty is too. 

This article, one of a series of ABR commentaries addressing cultural and political subjects, was funded by the Copyright Agency’s Cultural Fund.