Writing, Space and Authority: Producing and Critiquing Settler Jurisdiction in

Western Australia

Kieran Dolin, University of Western Australia

Abstract:

On the edge of Stirling Gardens in central Perth, Western Australia, five large,

old-fashioned pen nibs stand in a curved line, their tips in the ground. Anne

Neil’s sculpture, “Memory Markers”, commemorates the history of this site,

which includes the Supreme Court. Taking this sculpture as an emblem of

writing, which in the context of its setting highlights the relations between

literature and law, the paper explores the image of the pen in the ground. As a

symbol of literacy, it evokes the powerful network of discourses – particularly

law, science and religion - that underwrote the imperial project. It signals, in

Michele Grossman’s terms, “the event of literacy [that] radically interrupts and

disrupts - but never eliminates - pre-existing Aboriginal epistemologies”. The

paper goes on to explore the sculpture as a symbol of the assertion of

jurisdiction, the speaking of law in and over colonised space. It analyses a group

of written texts associated with this site, from colonial legal assertions of

jurisdiction over Aboriginal people in Edward Landor’s The Bushman (1847),

through a proclamation under the Aborigines Act 1905 (WA) to Stephen

Kinnane’s Indigenous family memoir of life under that Act, Shadow Lines (2004).

Keywords:

Writing; law; colonialism; place; Aboriginal life writing; jurisdiction.

On the western edge of Stirling Gardens in the central Perth, formerly known as

Government Gardens, a group of large, old-fashioned pen nibs stands in a curved

line, their tips in the ground (Illustration 1). Created by Anne Neil, they form a

sculpture called “Memory Markers”. The five identical nibs are 3.5 metres high

and made of cast aluminium. The image of vestigial pens acknowledges the part

played by writing and record keeping in the Victorian era, according to a nearby

plaque, particularly the recording of memories of those who used the gardens in

the nineteenth century. As if in homage to the setting, and to call in question any

simple binary between nature and art, the nibs appear planted in the earth, and

their tips are engraved with a design of leaf and seedling shapes drawn from

plants grown in the Gardens.

With the stark design of the nibs, this sculpture can be immediately read as an

icon, even an emblem, of writing. In exploring its significance, I draw on the work

of Michel de Certeau, who has argued that writing is “a gesture which has at once

the value of myth and of ritual” in the modern West.1 It attains this mythic

significance by symbolically articulating the heterogeneous social practices that

are fundamental to Western modernity.2 In this light, the image opens up

questions about the kinds of writing that have been produced in or about this

site, their cultural functions and their authority. Moreover, it invites a

metaphorical reading: the placement of the nibs, angled with their tips seemingly

embedded in the ground, resembles spears that have landed in or been thrust

into the earth. Thus, the sculpture offers a double image – that of writing, and

that of a weapon – and functions not only to memorialise a settler history of

1 See Michel de Certeau, The Writing of History, trans. Tom Conley (New York: Columbia University Press, 1988), 5.2 Michel de Certeau, “The Scriptural Economy,” in The Practice of Everyday Life, trans. Steven F. Rendall (Berkeley: University of California Press, 1984), 133-34.

2

place and culture of writing, but also to register the dispossession of the original

inhabitants, the Noongar people, and the particular role of writing in that

process. As Barbara Dundas, the heritage consultant on this project, stated when

briefing Perth City Councillors on the design: “The pen proclaimed the Swan

River Colony in 1829 as the start of British Settlement in Western Australia.

Through written record, land was assigned to new settlers, dispossessing the

aboriginal people of their traditional lands.”3 “Memory Markers” therefore

accords with Peter Goldsworthy’s observation in his novel Three Dog Night that

the pen is “the terrible whitefeller spear”.4 It endows the site with an image that

summons up its history, especially the event of colonial foundation, while also

inviting new acts and analyses of writing in the present.

The project documentation for “Memory Markers” avers that the grouping of

several pens implies the plurality of “histories … recorded on this site”.5 The

design therefore reflects an understanding of “heritage’ that properly

acknowledges the pluralism of modern society, as well as the plurality of

historical interpretations. In this context it is important to remember that not all

groups in society have historically had equal access to literacy, or the means or

inclination to record their memories of this place. As Michele Grossman has

argued, in Australia writing has been “a key element of imperial domination”,

and “the event of literacy” was profoundly damaging for Aboriginal people:

3 Barbara Dundas, unpublished introduction to “Memory Markers” for City of Perth councilors (email correspondence with the author 27 January 2015). In this account of the double symbolism of “Memory Markers,” I have drawn on correspondence with the artist, Anne Neil, and the heritage consultant on the project, Barbara Dundas.4 Peter Goldsworthy, Three Dog Night (Ringwood: Penguin, 2003), 254.5 ‘Project – Stirling Gardens Entry Artwork, Barrack Street, Perth City,’ unpublished memorandum supplied to the author by Anne Neil (email correspondence 27 January 2015).

3

the event of literacy radically interrupts and disrupts - but never

eliminates - pre-existing Aboriginal epistemologies by displacing and

disenfranchising Aboriginal ways of viewing and being in the world, and

by introducing new ways of organising meaning and knowledge that

would subsequently be taken up in varying ways and degrees by

Aboriginal peoples themselves.6

In this paper I shall analyse a selection of texts connected with this site, that have

reflected on “the event of literacy” and the conflict of epistemologies it

introduced, or that illustrate the uses of writing to displace or subsequently to

reclaim “Aboriginal … ways of being”, focusing particularly on issues of law.

Viewed in its particular location, at a place that was originally on the edge of the

river, part of what the Noongar people called Boodjargabbeelup, the place of

river, water and the land, and is today public gardens that contain the Supreme

Court building and the municipal offices of the City of Perth, adjacent to

Government House and the Anglican cathedral, the group of nibs evokes those

forms of knowledge and power transmitted in writing that were essential

elements of the apparatus of colonial rule: law and politics; the Christian

religion; and science. Canadian critic Gary Boire has called law “in many ways …

6 Michele Grossman, ‘When They Write What We Read…,’ Australian Humanities Review 39-40 (September 2006). http://www.australianhumanitiesreview.org/archive/Issue-September-2006/grossman.html (accessed 25 April 2014). For a study of early writing by Aboriginal people, see Penny Van Toorn, Writing Never Arrives Naked: Early Aboriginal Cultures of Writing in Australia (Canberra: Aboriginal Studies Press, 2006).

4

colonialism’s first language”, and argued that for the colonizing powers written

law “became a method both of writing the new land into ordered existence and,

later, of reading its inhabitants out of resistance and into control”.7 In words that

parallel Grossman’s, he describes the imported law’s method as “simultaneously

one of erasure and inscription”.8 Thus, Australia was constructed as a terra

nullius, its Indigenous laws and stories ignored, its places renamed. Boire further

argues that in both colonial and postcolonial literature, this law is consistently

subjected to “hybridisation, adaptation and deconstruction”.9

“Memory Markers” evokes this process of “inscription’: its nibs’ visibly

sticking into the ground suggests the imposition of written forms of knowledge

and understanding onto the “new” land, the overwriting of older, pre-existing

Indigenous knowledges. In this light, the sculpture may well stand not only for

law, but also for the very logos of modern Western culture – the confluence of

language, reason, science, law and the Word of Christianity. At the heart of this

episteme has been a positivist theory of language, in which words accurately

capture the truths of the external world. This philosophy not only applied in the

scientific sphere: around the same time as the Swan River colony was founded,

English jurists such as Jeremy Bentham and John Austin had begun to argue that

law should aspire to the regularity and predictability of a science, through the

philosophy of legal positivism.10 Under this theory, law was distinguished from

other fields of normativity, and had its source in the command of a sovereign. As

7 Gary Boire, “Symbolic Violence: Law, Literature, Interpretation – An Afterword”, Ariel 3, no..1-2 (2004): 231.8 Boire, “Symbolic Violence”, 233.9 Boire, “Symbolic Violence”, 235.10 For an account of the development of jurisprudence as “legal science”, see David Sugarman, “A Hatred of Disorder: Legal Science, Liberalism and Imperialism”, in Dangerous Supplements: Resistance and Renewal in Jurisprudence (London: Pluto Press, 1991), 34-67.

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the century wore on, positivism also gathered authority in the cultural sphere,

through the realist movement. A phrase of Desmond Manderson’s captures the

scientific ambitions of this epistemology: “The positivists, of course, legal or

literary, think that language is capable of skewering the world precisely”.11 His

metaphor suggests the violence of representation in all the privileged fields of

colonial knowledge, with their desire to possess, seize and know the other, and

ties in with the visual resemblance of the pen nibs to spear tips.12

In political terms, the image of inscription on the earth represents the

assertion of sovereignty. In the realm of the law, as Lisa Ford has shown in her

study, Settler Sovereignty, “sovereignty is practised through jurisdiction”.13 While

the concept of sovereignty has become known in literary and cultural studies

through Giorgio Agamben’s analysis of modern law’s reliance on states of

exception and their relationship with biopolitics, jurisdiction is a less familiar

notion.14 From its Latin origins, the word “Juris-diction”, literally means “the

speaking of law”. Marianne Constable probes the connection between speech and

law more deeply, arguing that jurisdiction “concerns the speaking of law – by law

and about law – in a place where legal speech is warranted”.15 This complex

formulation can be unpacked by considering the several ways in which the word

is used: “The speaking of law; the place of the speaking of law; the authority of a

11 Desmond Manderson, “Between the Nihilism of the Young and the Positivism of the Old: Justice and the Novel in D. H. Lawrence”, Law and Humanities 6, no. 1 (2012): 11.12 See Jacques Derrida, Writing and Difference, trans. Alan Bass (1976; London: Routledge, 2001), 113.13 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (Cambridge: Harvard University Press, 2010), 2. 14 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998).15 Marianne Constable, “Speaking the Language of Law: A Juris-Dictional Primer”, English Language Notes 48, no. 2 (2010): 9.

6

legal court or actor; the extension of power over subjects or subject-matter; the

geographic area over which such power extends”.16 I would therefore argue that

this sculpture, placed as it is, in the domain of law and the Crown, recalls the

fundamental assertion of sovereignty and jurisdiction.

Cornelia Vismann has argued that, “The primordial scene of nomos [or law]

opens with a drawing of a line in the soil. This very act initiates a specific concept

of law, which derives order from the notion of space”.17 “Memory Markers”

replicates that originary gesture, with a nineteenth-century writing tool. Thrust

into the ground, the pens symbolise the linked “will to power”, and “will to

knowledge”, of settler society, its assertion of its desire to manage the space that

it has arrogated for itself.18

The legal concept of jurisdiction has recently attracted attention as a useful

concept for literary studies, with its intertwining of ideas of “space, law and

language”.19 In a study of sixteenth-century English law and literature, Bradin

Cormack argues that “law reproduces itself as jurisdiction … [which] becomes

most visible when, historically, the law engages a novel question, one to which it

has not been fitted, … as when, for example, … a law developed in one country

16 Constable, “Speaking”, 1.17 Cornelia Vismann, ‘Starting from Scratch: Concepts of Order in No Man’s Land,’ quoted in Nan Goodman, ‘Introduction: Making Space for Juris-Dictions,’ English Language Notes 48, no. 2 (2010): 11.18 The terms of this interpretation are drawn from Michel de Certeau, Writing of History, 6, and from Michel Foucault, The Will to Knowledge: The History of Sexuality, Volume I, Trans. Robert Hurley (London: Penguin, 1998), 99-100.19 The quoted phrase is from Goodman, “Introduction”, 1ff; the above-cited work of Marianne Constable is part of that special issue of English Language Notes; see also Bruce Holsinger, “Vernacular Legality: The English Jurisdictions of The Owl and the Nightingale”, in The Letter of the Law: Legal Practice and Literary Production in Medieval England, ed. Emily Steiner and Candace Barrington (Ithaca: Cornell University Press, 2002), 154-84; and James Simpson, The Oxford English Literary History, Volume II 1350-1547: Reform and Cultural Revolution (Oxford: Oxford University Press, 2002), 1.

7

and for one people comes to be applied in and for another’.20 Cormack further

argues that literature and jurisdiction are functionally related, that both involve

what Jacques Rancière calls “distributions of the sensible”. For Cormack,

jurisdiction is not merely a procedural or preliminary matter, but a substantive

legal concept, “a power to do justice”.21 His considered appropriation of this

concept for historicised literary studies is potentially highly useful for an

integrated legal-cultural analysis of settler societies. In the Australian context,

the assertion that English law had jurisdiction over Aboriginal people was one of

the defining methods of “settler sovereignty’.22 Such a moment of legal liminality

occurred in the gardens where the sculpture stands, in the old Court House, with

the trial of Weewar for the wilful murder of another Aboriginal man, in 1842.

That event, and the writing it generated, is the first of these jurisdictional acts

that this paper examines.

I

Weewar was a Bindjareb Noongar who speared a member of the Canning River

clan named Dyung, in what he said was an act of retaliation in accordance with

their law.23 The lawyer appointed to represent Weewar, Edward Landor, argued

strenuously that the court did not have jurisdiction to try him, that the assertion

20 Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature and the Rise of the Common Law, 1509-1625 (Chicago: University of Chicago Press, 2007), 24.21 Cormack, Power to Do Justice, 4-5, citing Rancière, The Politics of Aesthetics: The Distribution of the Sensible, trans. Gabriel Rockhill (London: Continuum, 2004).22 Ford, Settler Sovereignty.23 Information drawn from the Kaartijin Noongar – Noongar Knowledge website: http://www.noongarculture.org.au/impacts-of-law-pre-1905/ (accessed 5 August 2015).

8

of British sovereignty did not imply a coexistent jurisdiction, that the Indigenous

peoples were not subjects of British law, but in fact operated under their own

laws, and that Weewar may indeed have already been punished under those

laws. Landor also argued against the prevailing narrative that the colony was

acquired by occupancy; he proposed that in truth it had been conquered and that

therefore, Aboriginal people were only subject to British laws to which they

consented. The presiding magistrates rejected these arguments and, despite the

unprecedented nature of the case, concluded that “sovereignty and jurisdiction

were coextensive, and Aboriginal people were amenable to British laws”.24

Weewar was sentenced to death, but this was commuted to life imprisonment on

Rottnest Island, or Wadjemup in Noongar, a place associated with the spirits in

the Noongar belief system.25

Five years later, Landor published a book about his experiences in Perth, The

Bushman, or Life in a New Colony (1847).26 Professing to speak as a “colonist”, he

wrote in “the hope of making colonial subjects more familiar to the general

reader, and more popular”.27 To achieve these goals he mixed comic anecdotes

and social observation, amateur ethnography and commentary on colonial

politics. Some of his anecdotes were sketches of hunting episodes and courtroom

successes. His first appearance in a Western Australian court was to represent

24 Ann Hunter, A Different Kind of Subject: Colonial Law in Aboriginal-European Relations in Nineteenth-Century Western Australia 1829-1861 (North Melbourne: Australian Scholarly Publishing, 2012), 148. Hunter notes that the outcome of the 1836 NSW decision in R. v Murrell on this question did not appear to have been reported in Perth newspapers, and there were no official law reports published at this time (134).25 See Glen Stasiuk, “Wadjemup: Rottnest Island as black prison and white playground”, PhD thesis, (Murdoch University, 2015), p. 32. Stasiuk has also directed a short film, “Weewar”, in Deadly Yarns 2 (Ronin Films, 2006).26 E. W. Landor, The Bushman, or Life in a New Country (London, 1847).27 Landor, The Bushman, 436. Subsequent references to this text will be incorporated parenthetically in the body of the argument.

9

the chief mate of the ship on which Landor himself had travelled to the colony,

who had been charged with stealing a bottle of spirits from the ship’s store.

During cross-examination, the ship’s captain, who had brought the charge,

claimed that Landor had supplied liquor to the crew and got them drunk, a fact

which Landor accepted, and then put to the jury as the source of the “stolen”

bottle. Landor enhances this story by setting out his cross-examination of the

complainant in the form of dramatic dialogue. So memorable is Landor’s

rendering of this incident that it is included verbatim in the official history of the

Supreme Court.28

By contrast, Landor does not mention the trial of Weewar. However, he does

reiterate the arguments he advanced in that case as part of a discussion on

policy: “Is jurisdiction a necessary incident of sovereignty? Do a people become

subject to our laws by the very act of planting the British standard on the top of a

hill?” (192) Significantly, in this altered, literary context, his own identifications

are avowed: “We have a right to our Australian possessions, but it is a right of

Conquest, and we hold them by the grasp of Power” (188). The implications of

this argument are draconian: far from arguing for a pluralism of English and

Aboriginal systems of criminal law, he recommends that a simple code be drafted

for Aboriginal people, “in the nature of military law, which would be intelligible

to the natives themselves” (194). Unfortunately, it would also strip them of the

rights they hold as British subjects. In essence, Landor imagines a new

jurisdiction which would advance the project of sovereignty, by extending the

28 Geoffrey Bolton and Geraldine Byrne, May It Please Your Honour: A History of the Supreme Court of Western Australia from 1861-2005 (Perth: Supreme Court, 2005), 20.

10

inscription of colonial space. The Bushman includes a remarkable figure for this

process:

It is well known in the colonies that the laws propounded in certain

dispatches are more powerful and more regarded and reverenced than

any others, human or divine. A kind of moral gun-cotton, they drive

through the most stupendous difficulties and rend rocks that appeared to

be insuperable barriers in the eyes of common sense or common justice.

Judges are compelled to yield to their authority, and do violence to their

own consciences whilst they lay the healing unction to those of their

lawgivers. (193)

Gun-cotton was an explosive mixture of acids dipped in cotton.29 In this

extraordinary metaphor, in which the pen in the ground becomes a charge,

Landor shamelessly presents a legal poetics of conquest, fantasizing a statute the

language of which could resolve all the problems of the colony. Using an analogy

that comprehends both physical and moral obstacles to underscore his faith in

the power of the legal speech-act, he implicitly reveals the violence at the heart

of colonial law. Faced with conflicting imperatives, conscience and tradition

versus the pragmatics of colonisation, he invokes legal positivism, law conceived

as the command of a sovereign, to imagine a law which can both “rend rocks”

and heal conflict. This contradiction that bespeaks a strange desire for a law that

serves as balm to a guilty conscience.

29 See ‘gun-cotton’ in OED Online: http://www.oed.com (accessed 29 June 2015).

11

The convoluted syntax of that sentence reveals an aporia, a logical and ethical

knot that has been disclosed by Landor’s mixed metaphors. It appears to suggest

that judges may without blame implement a statute that violates their own

consciences. However, the final clause, “whilst they lay the healing unction to

those of their lawgivers”, actually directs the assuaging effects of legal language

to others, to the consciences of the legislators. This twisted logic reflects a

residual anxiety about the morality of the proposed law.

In 1850, shortly after Landor’s book was published, the United States

Congress passed the Fugitive Slave Act, requiring the northern states to return

escaped slaves to their owners, and precipitating a crisis of the sort discussed by

Landor. Lemuel Shaw, the Chief Justice of Massachusetts, and a known

abolitionist, presided at a trial in which he had to rule on the constitutionality of

the new Act; Shaw felt bound to uphold and follow it. This episode in legal

history has been read as inscribing the triumph of positive law over the older

natural law theory, in which law was believed to inhere in and guide the human

conscience.30 Whether the case should be understood in these terms or not, its

violent effect on the lives of the escaped slaves was undoubted. Violence is the

other dimension of Landor’s “gun-cotton” metaphor. In “Violence and the Word”,

Robert Cover argues that legal interpretation cannot “be properly understood

apart from” what he calls “the violence it occasions”.31 Judicial decisions activate

the force of law, therefore “judges [sit] atop a pyramid of violence”.32 Yet Cover

30 See Robert M. Cover, Justice Accused (New Haven: Yale University Press, 1977). For a political critique of Shaw’s decisions, see Brook Thomas, ‘The Legal Fictions of Lemuel Shaw and Herman Melville,’ Critical Inquiry 11, no. 1 (1984): 244-51.31 Robert M. Cover, “Violence and the Word”, Yale Law Journal 95, no. 8 (1986): 1601.32 Cover, “Violence and the Word”, 1609.

12

points out that this connection is routinely obscured in accounts of the legal

system. The judges’ work of adjudicating, of “understanding what ought to be

done” in a case is “rigidly separated” from the implementation of their decision.33

Cover’s analysis of the centrality and occlusion of violence in the law helps to

explain Landor’s admission of violence and his immediate appeal to an

anaesthetising evasion of responsibility.

Though Landor’s rhetoric may have been florid, his policy ideas reflected

mainstream opinion among the colonists. A statute providing for summary trial

and punishment of Aboriginal people received imperial assent in 1849, and its

terms were extended several times later in the century. As I show below,

historical studies of the laws governing Aborigines in Western Australia have

recognised the pivotal role of this legislation in developing the possibilities and

implications of the decision on jurisdiction in the trial of Weewar. After

reviewing subsequent legislative provisions that affected Aboriginal people in

Western Australia, including the comprehensive powers of the Chief Protector

granted by the Aborigines Act 1905 and the Native Administration Act 1936, Paul

Hasluck concluded in 1942 that it “makes a mockery of the pretension that

[Aborigines] had the full legal status of a British subject”.34 Deprivation of legal

rights was accompanied by the assertion of “absolute control” over Indigenous

lives.35 Later writers express a similar view: Ann Hunter describes the regime set

33 Cover, “Violence and the Word”, 1627.34 Paul Hasluck, Black Australians (1942; Nedlands: University of Western Australia Press, 1970), 143.35 Hasluck, 161. “Still Black, though British” is the title of the chapter. For recent legal reviews, see Larissa Behrendt et al, Indigenous Legal Relations in Australia (Melbourne: Oxford University Press, 2009), 24, and Heather Douglas and Mark Finnane, Indigenous Crime and Settler Law: White Sovereignty after Empire (Basingstoke: Palgrave, 2012), 45. Kate Auty, Black Glass (Fremantle: Fremantle Arts Centre Press, 2005) is an excellent critical genealogy of the summary jurisdiction set up under the 1936 Act.

13

up by the Aboriginal summary punishment law as “a system without lawyers,

lower standards of evidence, and no interpreters, [which] set up discriminatory

practices on principles that have lasted in subsequent legislation”.36

Simultaneously, there was diminishing acknowledgment of Aboriginal law and

custom, which “were relegated to outside the boundaries of the colonial legal

system”.37 Heather Douglas and Mark Finnane conclude that the summary

processing of Aboriginal cases “became the basis for protracted discrimination in

criminal justice in Western Australia”. However, their research also questions

the extent to which the project of “absolute control” was realised: they argue that

“the exercise of settler jurisdiction in the nineteenth century was never

accomplished with finality”, drawing on cases in which Aboriginal defendants

continued to argue that their actions were to be judged under Aboriginal law,

and on anthropological research concerning the survival of customary law within

the “territorial ambit of Australian jurisdiction”.38 Thus, Landor’s claim that

certain laws function like “moral gun-cotton” suggests that the rock in his

analogy may symbolise a reality that is not as “amenable” to the written law as

the jurists thought. To assess the limits of this assertion of jurisdiction, I turn to

an exemplary instance of legal writing from this policy regime, and to an

Indigenous family memoir that explores the lives of those subjected to its

operation.

II

36 Hunter, Different Kind of “Subject”, 220.37 Hunter, 223.38 Douglas and Finnane, 87.

14

Writing, as a “technology of jurisdiction”, is the preferred means of authorizing

law and inaugurating legal relations in western legal systems.39 One of its most

obvious forms is the government proclamation, such as the announcement under

the Aborigines Act 1905 (WA) declaring “the City of Perth to be an area in which

it shall be unlawful for aborigines or half-castes not in lawful employment to be

or remain”.40 This legal speech act was devised by A. O. Neville, the Chief

Protector of Aborigines, in 1927, halfway through his time in office, to extend the

policy of separating the races, adding the force of law to their cultural

marginality in the capital city. This order and the statute under which it was

made illustrate the “intensification of control” over Indigenous lives that took

place under the so-called “protection legislation,’ of the early twentieth century.41

(See Illustration 2.) The comprehensive reach of settler sovereignty is captured

in the contradictory phrase describing the governor’s power: “whenever in the

interest of the aborigines he thinks fit …”.42

Stephen Kinnane offers an intimate account of the “lived experience’’ of this

jurisdiction in his “inter-generational life writing” text, Shadow Lines (2003).43

Through family memories, access to archives, and journeys to significant places,

Kinnane constructs his family story as a counter-narrative that witnesses to the

39 Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (London: Routledge, 2012), 62.40 Government Gazette of Western Australia, 18 March 1927, 1. 41 See Larissa Behrendt et al, Indigenous Legal Relations in Australia (Melbourne: Oxford University Press, 2009), 24.42 Italics added.43 See Goodman, “Introduction”, 3, for the idea of a “lived experience” of jurisdiction. On the genre, see Martina Horakova, “Contemporary Life Writing: Inscribing Double Voice in Inter-Generational Collaborative Life Writing Projects”, in A Companion to Australian Aboriginal Literature (Rochester: Camden House, 2013), 55.

15

continuing operation of Indigenous law. His maternal grandparents, Jessie

Argyle, a Miriwoong woman from the East Kimberley who was removed from

family and country as a child in 1906, and Edward Smith, an Englishman from

suburban London who emigrated to Western Australia as a young man,

experienced many of the provisions of that legal and administrative regime

through their life together. The law’s “new definitions of race were marked on

[Jessie’s] skin” when she was taken from her mother.44 Three quarters of the

minimal wage that she earned when sent out as a domestic servant was withheld

by Neville’s department to “finance the management of her life”, as Kinnane puts

it.45 Shadow Lines provides an inside view of the operation of this system of

control, its extent and limits, its technologies and effects. Through this counter-

narrative, Kinnane reveals the existence of a “performative gap” between the

word of the law and the adaptive and complex lives of its subjects, between the

proclamation and reception of a jurisdictional decision.46 The “neat lines of

demarcation” of the legislators were undermined by what Kinnane calls “shadow

lines of negotiation that we all use to make sense of our differences and our

interconnections”.47 By revealing the play of difference and interconnection in

the lives of three generations, Shadow Lines deconstructs the alliance between

writing, space and authority promulgated under settler sovereignty, and the

racial ideology it sought to codify. The love between Jessie and Edward, and the

creation of a “space for coexistence, even if … at times uneasy”, in their home,

44 Stephen Kinnane, Shadow Lines (Fremantle: Fremantle Arts Centre Press, 2003), 45. 45 Kinnane, Shadow Lines, 173.46 The quoted phrase is from Timothy Gould, “The Unhappy Performative”, in Performativity and Performance, ed. Andrew Parker and Eve Kosofsky Sedgwick (New York: Routledge, 1995), 29.47 Kinnane, Shadow Lines, 12, 379.

16

where blacks and whites could mix socially, and where Aboriginal people could

stay in white, inner suburban Perth, in defiance of the law, is only one of many

instances of “deconstruction, adaptation and hybridization” that this text

reveals.48

Kinnane’s archival research suggests that the immediate motive for declaring

central Perth a prohibited area was a carnival site called White City, where

Aboriginal and white men engaged in boxing and buckjumping contests for prize

money: “In the ring you could take out a man in a fair fight, then return to the

camps in glory with a purse of money. It attracted both a black and a white

audience. There was no other place like it in the city”.49 For Neville, White City

was an emblem of misrule and licentiousness, inverting the hierarchy and

separation of the races, and his stipulation that Aborigines could only come into

Perth for purposes of “lawful employment” was designed to counteract the types

of sociality fostered by the amusement centre, and thus to limit the number of

Aboriginal people in the city. Despite initial satisfaction with the prohibited area

policy, in 1937, ten years later, Neville introduced a pass system, to further

regulate and control access to the city, and to require Aborigines to produce

written evidence of their right to be there, if called upon. Kinnane reports that as

this jurisdiction was extended, not only police and Native Affairs inspectors, but

many other white people in positions of authority “took it upon themselves to

demand to see passes”.50

The governing trope of Shadow Lines celebrates the development of hidden

practices of resistance, expedients that escaped notice in the panoptic system of

48 Kinnane, Shadow Lines, 309; Boire, “Symbolic Violence”, 231.49 Kinnane, Shadow Lines, 213.50 Kinnane, Shadow Lines, 266.

17

control. Michel de Certeau’s account of the role of “tactics” in everyday life seems

useful here, as Kinnane imagines others like Jessie, who “had spent their lives

seeking out the cracks as a means of evading authority”.51 In particular, they

found ways of negotiating central Perth. Kinnane presents a double-sided picture

of this city: officially “a city of prohibition and starkly drawn boundaries”, in

which their exclusion was monitored closely by Neville, the police and zealous

citizens; but at the same time, “The city was a place of meeting, of the crossing of

railway lines, of rivers and creeks linked by corridors of black spaces”.52 Kinnane

recovers an alternative geography of Perth known to Aboriginal people in the

decades of segregation, which included river banks, railway reserves and other

liminal or secluded places that together constituted “small holes in the net where

people could get together”.53 One of those spaces was Government Gardens,

behind the Supreme Court and Government House on the reclaimed lands near

the river, in the “shadow” cast by the edifices of settler power. From the early

1920s Jessie and other women working as domestic servants in white families

regularly met here, to keep in touch with each other. In this quiet space they

were safe from police patrols and “white onlookers”. Here too they

photographed each other and, as Kinnane puts it, “began recording their own

lives in the city”.54 As well as making these gardens a place of memory for this

“Stolen Generation“, the photographs serve Kinnane as crucial supplements to

those kept on file by the authorities, personal records of a vital and adaptive

culture in the shadows of a system of exhaustive control.

51 Michel de Certeau, The Practice of Everyday Life, trans. Steven Rendall (Berkeley: University of California Press, 1984), 29. Kinnane, Shadow Lines, 287.52 Kinnane, Shadow Lines, 353, 210.53 Kinnane, Shadow Lines, 172.54 Kinnane, Shadow Lines, 173.

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Those files are, however, an important though disturbing source for his book.

They reveal the extent of governmental surveillance over Aboriginal lives: “My

grandmother’s file is as thick as a telephone book”.55 They contain language that

Kinnane finds distressing but not surprising. They tell him “more about the

people who constructed them than about” their subjects. Cornelia Vismann, in

her study of the function of files in legal systems, regards it as a rule “that files

only become an object of discourse when they encounter their opposite”, such as

when they are scrutinized by other disciplines.56 Thus, Kinnane’s self-reflexive

writing, which combines an awareness of linguistic, aesthetic and historiographic

elements, critiques the racial order created and enforced by the law. He further

traces shifts within this system by attending to differences in voice of individual

actors, and in material and ideological factors affecting their decisions. But

equally importantly, the extracts from official files included in this book are also

opposed by a secret correspondence that Jessie and Edward exchanged as their

relationship grew. With Jessie confined to the Moore River Settlement, and

Edward working in Shark Bay, hundreds of kilometres away, letters passed by

intermediaries were smuggled into and out of the Settlement whenever possible.

With the contingencies of delivery by this unofficial method, the letters might

easily be delayed or received out of order: “They were jumbled and furtive

communications”.57 Nonetheless, across the generations of this narrative, the

privileged technology of writing is appropriated to resist the power of the official

word.

55 Kinnane, Shadow Lines, 127.56 Cornelia Vismann, Files: Law and Media Technology (Stanford: Stanford University Press, 2008), 12.57 Kinnane, Shadow Lines, 183.

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After they were married in 1930, Jessie and Edward rented a house in North

Perth, just outside the prohibited area. Both had previously lived in other

people’s houses or in institutions, so this was the first home either could call

their own. For Jessie, it offered sanctuary and privacy as well as comfort,

protection from the control of the Aborigines Department: “It was where she

could shut the door on the Department, so she told my mother. It was where she

could welcome her own mob”.58 The home here is imagined as a kind of

jurisdictional boundary, or in a well-known image, “a castle or fortress”.59 Jessie

acted in accordance with this belief, and made the house a meeting-place for

Aboriginal men and women in Perth, where Aboriginal mothers could leave their

children, and women could stay if they needed a base in the city. Yet this practice

conflicted with Neville’s vision of interracial marriage as a tool of assimilation

and “biological absorption”.60 The family was subject to surveillance, and

received written threats of legal action, including reminders that despite her

marriage, Jessie was still subject to the authority of the Department. In

jurisdictional terms, the marriage, and the home, were “contested territory”,

where the terms of the legislation were asserted, and Jessie and Edward

professed to accept them, but in private acted in accordance with their own

wishes, and exercised a freedom of association that allowed Jessie to keep up

friendships and establish networks of care.61

One of the oddest experiences in this “contested territory” occurred in the late

1940s, when Jessie found herself at the centre of a seeming conflict of

58 Kinnane, Shadow Lines, 232.59 David Delaney, “Home as Nomic Setting: Seeing How the Legal Happens”, English Language Notes 48, no. 2 (2010): 65.60 Kinnane, Shadow Lines, 252.61 Kinnane, Shadow Lines, 239.

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jurisdictions. A young Electoral Office worker visited the house, as part of a drive

to ensure that all married woman were enrolled to vote, and insisted that Jessie’s

name be included on the electoral roll. When she questioned whether she as an

Aboriginal person came within the compulsory voting rule, he “stopped, checked

his paperwork, looked a bit perplexed, and stood his ground” (342).62 Not only

did Jessie get the vote there and then, but she also arranged to be driven to and

from the polling booth! Thus, Jessie was able to take advantage of these ironically

intersecting rules, aided by an official’s exclusive interest in his own jurisdiction.

As a text, Shadow Lines crosses the jurisdictional border between literature

and history: its critique of the curtailment of personal freedom and of what

Robert Cover called the “social organisation of violence” implemented under the

Aborigines Act is expressed as much through a commitment to aesthetic values

and a self-reflexive attention to language in the public and private spheres as to

documentary evidence.63 Kinnane positions himself within the story as the

inheritor and investigator of his family’s past, varying the tone of his narration

between the lyrical and the analytical, interspersing his experiences with

recreations of his forebears’ lifeworlds derived from historical research and

imaginative insight. Integral to this ambitious composite is an alternative spatial

history.

Kinnane’s narrative begins with a journey to his grandmother’s country, a

journey which establishes his place in the kinship system: “This place, my skin,

has become my starting point, a place from which I am linked and claimed. Being

my grandmother’s beginning point also, there’s an important symmetry, a

reconnection to her belonging within country that was disrupted with her

62 Kinnane, Shadow Lines, 342.63 Cover, ‘Violence and the Word,’ 1628.

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removal”.64 A parallel journey to London, Edward Smith’s homeland, follows, in

which Kinnane retraces his grandfather’s movements from his diaries,

photographs and mementos, and observes the altered streetscapes and social

body of the old imperial centre. On this journey of reconstruction, his dominant

experience is of alienation, rather than ‘re-connection’: “There are no people

looking for someone returning to their homeland. There are no old women

wanting to teach me the nuances of homeland culture, or how to throw a fishing

line. … There is no homecoming like that. My English relatives have all died”.65

Instead, he seeks out the written traces of a family marked, even in Edward’s

time there, by separation and loss, a “paper family”.66

Geographical disorientation is a significant contributor to Kinnane’s

alienation in London. In the other parts of Shadow Lines he exhibits a deep

understanding of “country”, and his descriptions of journeys and places

incorporate an awareness of landforms and biosystems that underlie the cleared

fields and built environments in which the narrative is set. Indigenous

knowledges infuse his accounts of place, augmenting the text’s historical

consciousness with a topographical palimpsest. Travelling to Bridgetown, where

Jessie had her first experience of domestic service, he recognises “the lands of

the Whadjug, Bindjareb, Geneang, Wardandi and … Bibulman” beneath the fences

and other traces of settler jurisdiction:

It’s been smoothed out, cut into paddocks, cleared and woodchipped, but

it’s still Noongar country …. There are stories of thousands of years of

64 Kinnane, Shadow Lines, 17.65 Kinnane, Shadow Lines, 54.66 Kinnane, Shadow Lines, 63.

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connection and care, and decades of post-contact transformation and

misunderstanding that are layered into the valleys of the land.67

In this characteristic passage, Kinnane reveals an understanding that narrating

his grandmother’s story entails what Peter Minter calls writing about

“Country”.68 His voice is circumspect: he admires the earth as a “law/lore-full

entity”, affirming that it has been a storied landscape for millennia, but as a

visitor disclaiming any right or wish to retell those stories.69 Similarly, in the

scenes set in Perth and in Miriwoong country in north-western Australia,

Kinnane grounds his own perceptions and his representations of his forebears’

experiences upon a relational “concept of country” in which “people, land and

waters” cannot be separated.70

Kinnane’s identification of an alternative jurisdiction in his representation of

space and place is particularly apparent in his representation of the immediate

area of North Perth where Jessie, Edward and their daughter Betty lived,

especially Hyde Park, which was opposite their house. Part of the system of

wetlands that dotted the Swan River plain, Hyde Park was originally a “Noongar

campsite and meeting place [known as] Boodjamooling”, and Kinnane believes

that traces of that usage remain in the old trees and the central lake, island and

reeds.71 Kinnane captures the various transformations of this place, from swamp

67 Kinnane, Shadow Lines, 129.68 See Peter Minter, “Writing Country: Composition, Law and Indigenous Ecopoetics”, JASAL 12, no. 1 (2012), for a recent critical theorisation of this project in Indigenous literature.69 Minter, “Writing Country”, 5.70 Stephen Kinnane, “Visions of Australindia”, in Country: Visions of Land and People in Western Australia, ed. Andrea Gaynor, Mathew Trinca and Anna Haebich (Perth: Western Australian Museum, 2002), 25.71 Kinnane, Shadow Lines, 228.

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to park, from working-class suburb to gentrification, and imagines the park as a

witness to all the micro-narratives of the peoples who have spent time there,

particularly those who gathered at his grandmother’s house. He posits that in

retelling those stories, humans enter into a deeper experience of place, and can

intuit a better sense of their own identity. For Kinnane, Hyde Park has its own

spirit, what the ancient Greeks called tyche,72 and he construes the trees in the

park as “Memory Markers”:

Each year the leaves become filled with the stories that they hear winding

their way around the tracks that circle the park. They grow until they can

no longer carry the weight, wither and fall to the earth to rot, filling the

gardens below and joining the silt of the lake beds. … Each story, captured

in the branches and collected in the leaves, creates another layer of

history around the trunk of the tree’s skin and become another earthy

layer in the park’s foundations. The stories amass and rupture the tarred

surfaces of the pathways ringing the lakes as the tree roots break through

the surface of any substance that the city attempts to lay over them.73

Drawing on Indigenous, classical Greek and scientific sources, Kinnane affirms

the significance of Boodjamooling/Hyde Park as “an essential site of human

interaction with the natural world”.74 Through this complex analogy between the

stories and the natural cycles of plant life, he leads readers to associate both the

falling leaves with the passing away in death of the tellers and the production of

72 Kinnane, Shadow Lines, 237.73 Kinnane, Shadow Lines, 228.74 Kinnane, Shadow Lines, 228.

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humus on the soil with the preservation of the stories. Kinnane thereby imagines

a technology of cultural memory that does not depend on writing, one in which

the seeming ephemerality of oral narrative is transformed into energy for

organic growth. More importantly, this trope evokes a further level of possible

symbolic meanings, particularly suggesting a family tree, the Heideggerian

concept of Being as “dwelling”, and the evolution of community through a shared

history: “We sing these stories of dead relatives, of past friends, bringing them to

life as a means of making sense of the movement forward into our present”.75

Although an elegiac tone is heard in this passage, it is succeeded by the

premonitory image of the ancient tree roots rupturing the tarred paths and

green lawns of the modern park. Given the complex weaving of discourses in the

narrative, this image of the “return of the repressed” evokes a number of cultural

processes: the culture of the dispossessed or stolen generations; the obscure

histories of solidarity and community that developed in Glendower Street and

elsewhere among individuals who crossed the boundaries of racial division and

explored the shadow lines in-between; and the reaffirmation of Aboriginal law

that disturbs the jurisdictional order of the settler state. In a sense, then, the tree

might be seen as an analogue for Kinnane’s own book, its leaves containing the

accumulated stories, which have been worked over in the memories of the

younger generations, and which functions as an irruption of the real, a counter-

history of the law and heritage of Western Australia in the twentieth century.

75 Kinnane, Shadow Lines, 237. My reading of the symbolic overtones of Kinnane’s tree tope is indebted to Robert Pogue Harrison’s account of forest symbolism in Forests: The Shadow of Civilisation (Chicago: University of Chicago Press, 1993), chapters 1 and 5. For the tree and dwelling, see the essays, “Language,” and “… Poetically Man Dwells …” in Martin Heidegger, Poetry, Language, Thought, trans. Albert Hofstadter (New York: Harper Perennial, 2001), 185-208 and 209-27.

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III

Within literary studies, the sculpture “Memory Markers” might well be read as

symbolising the creation of place through the written word.76 In this paper, I

have instead foregrounded the physical location of the sculpture, “bringing

authority into dialogue with space and language”, and interpreting the

installation of the pens in the ground as a postcolonial reflection on the assertion

of sovereignty and jurisdiction.77 Bradin Cormack has described jurisdiction as

“the language in which, all but impossibly, a juridical order encloses the world”.

This project of “the reconfiguration or capture of the real”, he argues, “is thus

analogous … to literary representation”.78 The production of settler jurisdiction

in Western Australia confirms Cormack’s insight, with the writings of two

proponents of this jurisdiction, published 80 years apart, revealing not only the

ambitious scope, but also the violence, of the new law. If, for Landor and Neville,

writing is a weapon, a tool of conquest, for Kinnane the resources of the modern

Western “scriptural economy” can be turned against itself.79 He translates the

assertion of jurisdiction into narrative terms: “power is the ability of others to

make you inhabit their story of you,” but through the self-reflexively literary and

historical dimensions of his text he insists that such narratives can be resisted

and supplemented.80 By attesting to the survival of Aboriginal cultural and

normative practices under that “juridical order”, and discerning the “shadow

76 See Martin Leer, “An Imagined Counterpart: Outlining a Conceptual Literary Geography of Australia”, Australian Literary Studies 15, no. 2 (1991): 1-13, for an analytical introduction to these approaches. 77 Goodman, “Introduction”, 2.78 Cormack, Power to Do Justice, 9 and 334 n.27.79 Michel de Certeau, Everyday Life, Chapter 10.80 Kinnane, Shadow Lines, 379.

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lines” that deconstructed the boundaries it established, Kinnane’s work

juxtaposes two different models of law and authority operating in Australian

space. As such, it raises questions about the recognition of Indigenous law and

the terms of engagement between Indigenous and Anglo-Australian law in the

post-Mabo era, and about the possibility of creating a more equitable and

inclusive Australian society.

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