Anthony, T. & Blagg, H. 2013, 'STOP in the Name of Who's Law? Driving and the Regulation of Contested Space in Central Australia', SOCIAL & LEGAL STUDIES, vol. 22, no. 1, pp. 43-66.
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Anthony, T. 2013, 'Indigenous Crime and Settler Law: White Sovereignty After Empire', Alternative Law Journal, vol. 38, no. 1, pp. 63-64.
Anthony, T. 2013, 'Justice: A History of the Aboriginal Legal Service of Western Australia', LABOUR HISTORY, no. 104, pp. 246-248.
Anthony, T. 2013, 'Indigenising Sentencing? Bugmy vs The Queen', Sydney Law Review, vol. 35, no. 2, pp. 451-466.
The grant of special leave in Bugmy v The Queen 1 has provided an occasion for the High Court to rule on the significance of Indigenous background in sentencing in relation to other sentencing considerations. In particular, the Court must reconcile the sentencing considerations of detmence, community protection, offence seriousness and criminal history with the principles of individualised justice and the recognition of factors specific to the Indigenous defendant. These sentencing objectives may appear to be in conflict, but they' can be reconciled if the Court accepts that the aim of community protection and deterrence is furthered through accounting for Indigenous context and providing sentences that address Indigenous disadvantage. The emphasis placed by the New South Wales Court of Criminal Appeal and other state and territory higher courts on the seriousness of the offence has diminished the significance of the disadvantaged circumstances of Indigenous offenders in sentencing, and has contributed to increased levels of Indigenous imprisonment. Bugmy v The Queen will be important in providing clearer direction on the common law's interpretation of sentencing principles for Indigenous offenders. These have undergone substantial revision over the past 20 years. This case provides an opportunity for the High Court to consider the role of criminal sentencing in the dramatic over-representation of Indigenous Australians in prisons, and how sentencing can be structured to promote deterrence outside of prisons.
Anthony, T. 2013, 'Indigenous Stolen Wages: historical exploitation and contemporary justice', Precedent, vol. 118, pp. 42-46.
Anthony, T. & Schwartz, M. 2013, 'Invoking Cultural Awareness Through Teaching Indigenous Issues in Criminal Law and Procedure', Legal Education Review, vol. 23, no. 1 & 2, pp. 31-56.
The article focuses on the cultural awareness through teaching the indigenous issues in criminal law and procedures. Topics discussed include role of the threshold learning outcomes (Twos) in invoking cultural awareness, cultural diversity and legal discrimination. It also discusses the importance of teaching indigenous laws to the students and making it a part of the educational curriculum.
Anthony, T. 2012, 'Is There Social Justice in Sentencing Indigenous Offenders?', The University of New South Wales Law Journal, vol. 35, no. 2, pp. 563-597.
This article considers the shift away from the Fernando principles that provided mitigation for Indigenous offenders in disadvantaged contexts. It evaluates the weaknesses of a judicial recognition model for social justice and considers alternative sentencing regimes that empower Indigenous communities.
Anthony, T. 2012, 'The Northern Territory Intervention: the Ongoing Story of Withheld Indigenous Money', Ngiya: Talk the Law, vol. 3, pp. 2-12.
Anthony, T. 2012, 'Frameworks for Including Indigenous Issues in Torts: Stolen Generations Case Study', Ngiya: Talk the Law, vol. 4, pp. 30-45.
Tort Law subjects are well-known for their novel cases; snails in bottles,2 ricocheting firecrackers3 and hundreds of thousands of dollars found in a household cupboard.4 These negligence and trespass cases push the boundaries of precedent, and are critical for understanding the opportunities that tort law provides. However, tort law is constantly opening up new avenues, including breach of statutory duty5 and misfeasance in public office. Stolen Generations litigation pushes some of these doctrinal boundaries. It signifies the potential for tort law to provide remedies for historical wrongs by the state. Stolen Generations cases also reveal how tort law provides not only compensation for physical and psychological harm but also for cultural loss. They reveal the unique loss that Indigenous people suffer at the hands of paternalist policy.
Anthony, T. 2012, 'Introduction: Putting the 'Black' in Black Letter Law Subjects', Ngiya: Talk the Law, vol. 4, pp. 1-4.
Van Rijswijk, H. & Anthony, T. 2012, 'CAN THE COMMON LAW ADJUDICATE HISTORICAL SUFFERING?', MELBOURNE UNIVERSITY LAW REVIEW, vol. 36, no. 2, pp. 618-655.
Anthony, T. 2011, 'Sentencing Indigenous Riot Offenders in a Spatial Fantasy', Griffith Law Review, vol. 20, no. 2, pp. 385-420.
There is precedent in Australian criminal sentencing to consider Indigenous group membership as a mitigating factor, including for Indigenous riots against racist acts or deaths in custody. When mitigation has been invoked, it is based on the reduced moral culpability of the Indigenous offender. A number of higher courts, particularly in the 1980s and 1990s, pointed to the stress caused by racism that provoked the riot. However, recent sentencing remarks have tended to privilege aggravating circumstances, especially the seriousness of the riot and the harm or potential harm to the victims. This shift in sentencing considerations for rioters dovetails a reimagining of the Indigenous offender and their community as lacking reason or legitimacy in the contest for space. This article analyses key sentencing remarks and media reports for New South Wales and Queensland Indigenous riot cases over the past 30 years by drawing on Stanley Cohen's concept of 'moral panics' and Ghassan Hage's notion of spatial racism to demonstrate how the construction of riots as an out-of-control response reflects a deeper national anxiety over 'white' space.
Anthony, T. 2011, 'The Punitive Turn in Post-Colonial Sentencing and the Judicial Will to Civilise', Waikato Law Review, vol. 19, no. 2, pp. 66-85.
Australian criminal justice in the twenty-first century has been characterised by a law and order agenda, which has given rise to longer prison sentences. The Northern Territory Supreme Court has justified increased sentences to the risk Indigenous cultures and customary laws present to victims and the safety of the community. This article focuses on the punitive turn for Indigenous offenders delivered by the Northern Territory Supreme Court over the past decade and since accommodated by Federal legislative amendments that outlaw cultural and customary law factors in sentencing
Anthony, T. 2011, 'Moral Panics and Misgivings over Indigenous Punishment: Sentencing Cultural Crimes in Australia's Northern Territory', Cambrian Law Review, vol. 42, pp. 91-112.
Misgivings about Indigenous culture and customary law have emerged in criminal sentencing of Australian Indigenous offenders. In the late twentieth century courts idealised Indigenous culture in remote communities of the Northern Territory. Over the last decade culture has been re-imagined by the courts as a threat to mainstream legal norms and has attracted harsher punishment. Alongside judicial misgivings there has been a moral panic in the media and government circles over Indigenous culture and punishment. The Indigenous criminal has been put forward as a symbol of cultural backwardness and the failed Indigenous community. The moral panic culminated in prohibitive sentencing legislation and restrictive controls over Northern Territory Indigenous communities in 2007. By drawing on Stanley Cohen's and Emile Durkheim's notions of moral panics and Ghassan Hage' s view of Australian nationalism, this article argues that the moral panic over Indigenous criminality as a culture manifestation cemented nationalist aspirations for an exclusively white space. Finally, the paper imagines an alternative legal pluralism where Indigenous communities are engaged in punishment and crime prevention.
Anthony, T. 2010, 'Aboriginal Self-determination after ATSIC: reappropriation of the 'original position'', Polemic, vol. 14, no. 1, pp. 4-15.
Anthony, T. 2010, 'Sentencing Indigenous Offenders', Research Brief: Indigenous Justice Clearinghouse, vol. Brief 7, no. March 2010, pp. 1-8.
Anthony, T. 2010, 'A New National Indigenous Representative Body ... Again', Indigenous Law Bulletin, vol. 7, no. 18, pp. 5-9.
Comparison between the functions and governance of the new Aboriginal representative body, the National Congress of Australia's First Peoples and the Aboriginal and Torres Strait Islander Commission (ATSIC) - background - whether a new Indigenous representative body can play a meaningful role within the current Indigenous policy framework - whether the ideology of 'building partnerships' is sufficient to realise 'self-determination'.
Anthony, T. 2010, 'Rights and Redemption: History, Law and Indigenous People. By Ann Curthoys, Ann Genovese and Alexander Reilly, UNSW Press, Sydney, 2008, 304pp, ISBN 978 0 868408 07 1', Adelaide Law Review, vol. 31, no. 1, pp. 95-98.
Anthony, T. 2010, 'Welfare reforms and the Racial Discrimination Act in the NT', Alternative Law Journal, vol. 35, no. 3, pp. 183-183.
Anthony, T. 2010, 'Governing Crime in the Intervention', Law in Context, vol. 27, no. 2, pp. 90-113.
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This article addresses how the 'technologies, discourses and metaphors of crime' that legitimated interventions in the Northern Territory from mid-2006 had an impact on the policing of minor driving offences. Data from local court1 lists in prescribed communities and the Northern Territory Police, Fire and Emergency Services Annual Police Reports (2004-2009) reveal that there has been an increase in Indigenous criminalisation since the Intervention. The increase is not in the violent offences anticipated by the architects of the Intervention but in minor driving or traffic offences (hereafter referred to as driving offences), particularly driving unlicensed, uninsured and in an unregistered vehicle. These findings on policing under the Intervention resonate with Jonathan Simons model of governing through crime and Stanley Cohens work on net-widening.
Anthony, T. 2009, 'Quantum of Strategy: Models to combat Strategic Law Suits Against Public Participation', Australian Journal of Human Rights, vol. 14, no. 2, pp. 1-38.
Anthony, T. 2009, 'Manifestations of Moral Panics in the Sentencing of Palm Islander Lex Wotton', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 466-475.
This Comment considers the sentencing of Palm Islander man, Lex Patrick Wotton, for his involvement in the protest following the death in custody of Mulrunji. It examines the protest as a response to the police role in the death and the police mishandling of the consequent investigation. The Comment critiques the media trial that paralleled Wotton's court trial. The mainstream media, along with the Queensland Government and police union, produced a moral panic over the Palm Island protest that overshadowed the death in custody. This Comment argues that the court that sentenced Wotton appropriated the moral panic over the offence to remove the death in custody as a sentencing factor.
Anthony, T. 2009, 'The Disavowal of Context: Sentencing Lex Wotton', Indigenous Law Bulletin, vol. 7, no. 10, pp. 27-30.
Almost thirty years ago in the case of R'v Neal (1982),1 members ofthe HighCourt recognised that an Indigenous defendant's assault (swearing and spitting) on a reserve officer inYarrabah, Queensland, needed to be understood in its paternalistic aQd racist context. Two ofthe four High Courtjudges acknowledged. that racist tensio.os onreserves that provoke 'violent' crimes against non-Indigenous officers can be factors that reduce the offender's criminal sentence; because they reduce the culpability of the Indigenous offender.
Anthony, T. 2009, 'The Return To The Legal And Citizenship Void: Indigenous Welfare Quarantining in the Northern Territory and Cape York', Balayi, vol. 10, pp. 29-44.
This article will suggest that the universal quarantining of Indigenous people's social security in Northern Territory communities is a departure from Indigenous peoples' citizenship rights. The Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), which is part of the Commonwealth's Northern Territory 'emergency' measures, represents a return to a historical legal void where Indigenous people had neither rights to their culture nor citizenship rights.
Anthony, T. 2008, 'Review: Simon Young, The Trouble with Tradition: Native Title and Cultural Change (The Federation Press, 2008, 528 pp, $125, ISBN 9781862876477)', Australian International Law Journal, vol. 15, pp. 301-302.
Anthony, T. 2008, 'Crime, Aboriginality and the Decolonisation of Justice, Harry Blagg, Hawkins Press, Sydney, 2008', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 490-491.
Anthony, T. 2008, 'Book review: Settling with Indigenous People: Modern treaty and agreement-making', Public Space: The Journal of Law and Social Justice, vol. 2, pp. 27-27.
Anthony, T. 2008, 'Review: Black Glass: Western Australian Courts of Native Affairs 1936-54', Aboriginal History Journal, vol. 31, pp. 203-205.
Anthony, T. 2008, 'The Feudal Thread in the Indian and Australian Colonial Mode of Production: A Comparitive Approach', Journal of the Oriental Society of Australia, vol. 39-40, no. 1, pp. 50-70.
This article will argue that the old regime is characteristically feudal, and the British sought to impose (or take advantage of) this regime to conquer and exploit land in the colonies of India and Australia. A comparative histOlY of India and Australia will be utilised to demonstrate the colonial endeavours to set up land systems that facilitated British Crown acquisition and deprived Indigenous workers of their land. Marc Bloch attests to the capacity of comparative history to appreciate historical developments in their entirety: Historical research will tolerate no autarchy. Isolated, each will understand only by halves, even within his own field of study; for the only true history, which can advance only through mutual aid, is universal history.) An analysis of Australian and Indian colonisation reveals that the manifestation of feudal traits in colonies was not accidental, but can be traced to the influence of eighteenth-century British thinkers, notably Sir William Jones, who infonned <eighteenth-century British policy in India',4 and Sir William Blackstone, whose legal authority provided legitimacy for Indian and Australian colonisation and specifically for the common law in New South Wales5 William Blackstone's notion of feudal law-based on absolute Crown ownership of property alongside private possession of propertywould underpin Indian and Australian property law for over a century.
Anthony, T. & Chapman, R. 2008, 'Unresolved Tensions: Warlpiri Law, Police Powers and Land Rights', Indigenous Law Bulletin, vol. 7, no. 5, pp. 9-18.
This article explores the powerlessness of Indigenous people when confronted with police on ceremonial land. It draws on a recent incident in Lajamanu (northern Tanami Desert, Northern Territory ('NT')) that highlights the conflict between Indigenous and non-Indigenous laws. The incident involved an intrusion on a restricted Warlpiri ceremony ground by non-Indigenous police officers, including a female officer.
Anthony, T. 2007, 'Unmapped Territory: Indigenous Stolen wages on Cattle Stations', Australian Indigenous Law Review, vol. 11, no. 1, pp. 4-29.
Unmapped Territory: Indigenous Stolen wages on Cattle Stations
Anthony, T. 2007, 'Reconciliation and Conciliation: The Irreconciable Dilemma of the 1965 'Equal' Wage Case for Aboriginal Station Workers', Labour History, vol. 93, no. 11, pp. 15-34.
The Commonwealth Conciliation and Arbitration Commission in 1965 presided over a landmark case concerning the inclusion of Indigenous workers in the Cattle Industry (Northern Territory) Award 1951. The success of the Australian beef industry during the previous hundred years, especially in the Northern Territory, depended almost entirely upon the work of Indigenous cattle workers but they had rarely been paid. The Commission decided to include Indigenous people under the Award, but its characterisation as an Equal Wage Case is a misnomer. The arguments in the proceedings fuelled a decision that compromised the principle behind Award wages. First, the Commission relied on arguments regarding the lower work value of Indigenous workers to allow individuals to be categorised as `slow workers on below-Award wages. Second, the Commission referred to evidence on the Commonwealths assimilation policy to advocate the removal of workers from `tribal camps on stations. The transcripts reveal racial biases of the Commission that undermined the granting of Award wages.
Anthony, T. 2007, 'Australia's anachronistic advocates' immunity: Lessons from comparative tort law', Tort Law Review, vol. 15, no. 1, pp. 11-30.
n recent years a judicial wave has washed away legal advocates' common law immunity in jurisdictions comparable with that of Australia. English and New Zealand courts abrogated immunity in 2000 and 2005-2006 respectively in order to create public confidence in the legal system. 3 In 2005, the Ontario Court of Appeal (Canada) established that advocates are liable for a reasonable standard of care, rather than "egregious error". 4 The superior courts of the United States have consistently maintained that counsel, including advocates appointed by the state since 1979, 5 have a duty of care to clients that is not protected by immunity. In 2005 the High Court of Australia anchored advocates' immunity contrary to the international tide. The decision arose from the case of D'Orta-Ekenaike v Victoria Legal Aid (2005)?223 CLR 1 [PDF] that involved an acquitted man who attempted to sue his barrister and solicitor for wrong advice that led to his earlier conviction and three years imprisonment. In a strong six-to-one majority, the High Court not only affirmed immunity of advocates from negligence suits, but also extended its scope from in-court to out-of-court immunity, and from barristers' immunity to instructing solicitors. The court's chief justification was to protect the public interest by ensuring the finality of trials. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) held that abolishing immunity would precipitate parlous re-litigation and undermine the administration of justice (at ).
Anthony, T. 2006, 'Review: Black Glass: Western Australian Courts of Native Affairs 1936-54', Aboriginal History, vol. 30.
Anthony, T. 2006, 'Indigenous Self-Determination & Crime:Out of Tune & out of time', This Century's Review, no. 03/06.
Anthony, T. 2004, 'Labour relations on northern cattle stations: feudal exploitation and accommodation', The Drawing Board: An Australian Review of Public Affairs, vol. 4, no. 3, pp. 117-136.
Anthony, T. 2003, 'Postcolonial Feudal Hauntings of Northern Australian Cattle Stations', Law.Text.Culture, vol. 7, pp. 277-307.