Dr Thalia Anthony

Biography

Dr Thalia Anthony has published widely in the area of Indigenous people and the law, especially in relation to the criminal justice system,civil remedies and legal history. She has edited the Critical Criminology Companion (Hawkins Press 2008) and co-authored Indigenous Legal Issues (Thomson 2009). Her contribution to public debates, senate inquires and United Nations committees relates to Indigenous issues, criminal law policy and law reform. She has produced a research brief for the Attorney-General's Indigenous Law Clearing House on criminal sentencing, and is currently working on a project funded by the Criminology Research Council on Indigenous criminalisation since the Northern Territory Intervention. This project builds on her work with Indigenous communities in the Northern Territory.

Thalia has been involved in public interest litigation regarding Indigenous stolen wages. She is an associate of the Indigenous Law Centre and on the Advisory Committee of the Institute of Criminology. She has taught at a number of universities across a wide range of areas, including Law, Criminology and History. Thalia is committed to embedding Indigenous content into law courses and is currently editing a book that draws on expertise in teaching Indigenous issues in core and elective law subjects. Thalia has convened a number of conferences on teaching scholarship. She has written books for first year law students, including Connecting With Law (OUP 2009), and loves teaching.

Image of Thalia Anthony
Senior Lecturer, Faculty of Law
Core Member, Law Research Centre Research Strength
LLB (Hons I) (USyd), MCrim (USyd), PhD (USyd)
 
Phone
+61 2 9514 9665
Fax
+61 2 9514 9685
Room
CM05C.03.22A

Research Interests

  • Indigenous Legal Issues
  • Criminal Law and Procedure
  • Criminology
  • Legal History
  • Social Justice
  • Jurisprudence
  • Legal Education
Can supervise: Yes
Available for undergraduate and postgraduate coursework research supervision in: • Indigenous Legal Issues • Criminal Law • Criminology • Criminal Procedure • Jurisprudence • Tort Law • Social Justice • Legal Education

  • Criminal Law
  • Criminology
  • Criminal Procedure
  • Civil Procedure
  • Foundations of Law and Australian legal history
  • Indigenous People and the Law
  • Legal Reasoning and the Common Law System
  • Tort Law

Book Chapters

Anthony, T. & van Rijswijk, H.M. 2012, 'Parental 'Consent' to Child Removal in Stolen Generations Cases' in Kirkby, D. (eds), Past Law, Present Histories, ANU E-Press, Canberra, pp. 193-208.
Our reading of recent Stolen Generations cases argues that courts prior to the Lampard-Trevorrow (2007) treated consent as an individual act, freely and voluntarily given by a liberal subject. Consent was seen as a legitimate factor that duly activated the powers of the legislation to bring about legal removal, according to Justice Maurice O Loughlin in Cubillo. In the previous Stolen Generations case of Williams, formal consent had barred false imprisonment and trespass on the basis that a child cannot be imprisoned if her mother consented to the removal. This chapter goes further than simply suggesting that Aboriginal consent has been misread by the courts which was clearly the situation until the case of Lampard-Trevorrow. It also proposes that consent was, and is still used in an underhanded way by the state to legitimise its actions and protect itself from liability. After all, most statutory creatures governing the Stolen Generations allowed for removal, irrespective of consent. The state, nonetheless, sought to procure consent in order to rationalise the policy, facilitate removals, and shift the responsibility for removal from the state to Aboriginal parents.
Anthony, T. 2011, 'Embedding Specific Graduate Attributes: Cultural Awareness and Indigenous Perspectives' in Kift, S; Sanson, M; Cowley, J; Watson, P (eds), Excellence and Innovation in Legal Education, Lexis Nexis, Sydney, pp. 137-169.
In this book teaching professionalism is characterised by the scholarly underpinning of each contribution; and every contribution provides a rich resource for enhancing teaching practice. The critical concerns for legal education have been identified and discussed: curriculum design that includes graduate attributes; embedding specific attributes across the curriculum; empowering students to learn; academic teamwork to manage large student cohorts; first year and final year transition strategies; tracking students' personal development through the use of ePortfolio; assessment strategies; improving student well-being and promoting resilience; teaching practice to achieve deep learning; flexibility in delivery; the use of Web 2.0 technology; and understanding the 21st century student.
Anthony, T. 2009, 'Commentaries on Colonialism: Australian Judicial Interpretation' in Wilfred Prest (ed), Blackstone and his Commentaries Biography, Law, History, Hart Publishing, Oxford, UK, pp. 129-150.
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The focus of this chapter is how Australian courts construed Blackstone's doctrines on the processes of and justification for Australian colonisation. It argues that Australian courts took Blackstone's writings on colonialism out of their original context in order to meet the imperatives of British sovereignty. After analysing the use of Blackstone in judgments by the New South Wales Supreme Court from the 1820s to the 1840s, this chapter will then consider how Blackstone's feudal proposition justifying British land colonisation materialised in New South Wales and northern Australia, and was eventually dealt with in native title case law.
Anthony, T. & Anthony, D. 2008, 'Psychologising Criminals and the Frankfurt School's Critique' in Anthny A, Cuneen C (eds), The Critical Criminology Companion, Hawkins Press, An imprint of the Federation Press, Sydney, Australia, pp. 43-54.
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The birth of criminology and psychology as scientific pursuits in the mid-19th century drew together the two disciplines (Hollin 2002: 147). Institutional criminologists, the courts1 and popular culture2 have maintained their fascination with and reliance on psychological models to explain criminal behaviour. They assume that the individual+s psychology is the cause of crime and that psychotherapy can be relevant in the eradication of crime. But despite this focus on the individual criminal or act of crime, psychology has a broader tradition in criminology, including in critical criminologies. Notably, the Frankfurt School engaged neo-Freudian psychoanalysis to provide a political critique of the criminal justice functions of the authoritarian state. Such an approach tends to be overlooked by those who associate psychology with positivism.
Anthony, T. & Cuneen, C. 2008, 'Introduction' in Thalia Anthony and Chris Cuneen (eds), The Critical Criminology Companion, Hawkins Press, An imprint of the Federation Press, Sydney, pp. 1-4.
Anthony, T. 2007, 'Criminal Justice and Transgressions on Northern Cattle Stations' in Ingereth Macfarlene, Mark Hannah (eds), Transgressions: Critical Australian Indigenous Histories, ANU E Press, Acton, Australia, pp. 35-61.
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Books

Anthony, T. 2013, Indigenous People, Crime and Punishment, 1, Routledge, New York.
Indigenous People, Crime and Punishment examines criminal sentencing courts+ changing characterisations of Indigenous peoples+ identity, culture and postcolonial status. Focusing largely on Australian Indigenous peoples, but drawing also on the Canadian experiences, Thalia Anthony critically analyses how the judiciary have interpreted Indigenous difference. Through an analysis of Indigenous sentencing remarks over a fifty year period in a number of jurisdictions, the book demonstrates how judicial discretion is moulded to dominant white assumptions about Indigeneity. More specifically, Indigenous People, Crime and Punishment shows how the increasing demonisation of Indigenous criminality and culture in sentencing has turned earlier `gains+ in the legal recognition of Indigenous peoples on their head. The recognition of Indigenous difference is thereby revealed as a pliable concept that is just as likely to remove concessions as it is to grant them. Indigenous People, Crime and Punishment suggests that Indigenous justice requires a two-way recognition process where Indigenous people and legal systems are afforded greater control in sentencing, dispute resolution and Indigenous healing
Anthony, T., Crofts, P., Crofts, T., Gray, S., Loughnan, A. & Naylor, B. 2013, Waller & Williams Criminal Law: Text and Cases, 12, LexisNexis Butterworths, Australia.
Sanson, M., Anthony, T. & Worswick, D. 2010, Connecting With Law, 2nd, Oxford University Press, Melbourne.
Connecting with Law 2nd edition covers the foundations of law in an interesting and thought provoking way, encouraging critical thinking and contextual understandings of the law. This edition provides a greater focus on jurisprudence, legal history and statutory interpretation.
McRae, H., Nettheim, G., Anthony, T., Beacroft, L., Brennan, S., Davis, M.J. & Janke, T. 2009, Indigenous Legal Issues:Commentary and Materials, 4th edition, Thomson Reuters Law Book Co, Sydney.
Sanson, M., Worswick, D. & Anthony, T. 2009, Connecting with Law, 1, Oxford University Press, Melbourne, Australia.
Connecting with Law covers the foundations of law in an interesting and thought provoking way, challenging students to think critically, question ideas, and connect with law. It provides students with a broader context which allows them to start thinking about the values law embodies and their relationship to society. This fresh approach to introductory law is designed to engage students with contemporary examples and case studies they can relate to, and which help them understand the law.
Anthony, T. & Cunneen, C. 2008, The Critical Criminology Companion, Hawkins Press, NSW, Australia.

Conference Papers

Anthony, T. 2012, 'Indigenous Inclusion in Legal Education: Australian challenges and opportunities', Australasian Law Teachers Association Annual Conference 2012: Legal Education for a Global Community, University of Sydney Law School, Sydney, Australia, July 2012, pp. 1-5.
van Rijswijk, H.M. & Anthony, T. 2012, 'An Element of Bluff or Deception: Parental Consent and State Control in the Stolen Generations Cases', 2012 International Conference on Law and Society: Sociolegal Conversations Across a Sea of Islands, Honolulu, Hawai'i, June 2012 in Program of 2012 International Conference on Law and Society: Sociolegal Conversations Across a Sea of Islands, ed Engel, D, Yngvesson, B and Bunting, A, Law and Society Association and Research Committee on Sociology of Law, Honolulu, Hawai'i, pp. 87-87.
Anthony, T. 2011, 'Criminal Sentencing of Australian Indigenous Offenders', University of Waikato, Hamilton, New Zealand, April 2011 in Justice in the Round: Perspectives from Custom and Culture, Rights, and Dispute Resolution.
Anthony, T. 2010, 'The Drive to Criminalise: Consequences of the Northern Territory Intervention', The Australian and New Zealand Critical Criminology Conference, Faculty of Law, University of Sydney, July 2010 in Australian and New Zealand Critical Criminology Abstracts, ed Murray Lee and Gail Mason, Sydney Law School, Sydney.
Anthony, T. 2010, 'Crime issues since the Northern Territory intervention: The drive to convict', Australia and New Zealand Society of Criminology, Alice Springs, September 2010 in Australian and New Zealand Society of Criminology, ed Allan Van Zyl, Australian and New Zealand Society of Criminology Program, Alice Springs.
Since the Northern Territory Intervention in 2007, there has been a spike in criminalisation, especially in remote Indigenous communities. The result has been a rise in Northern Territory incarceration to over four times the national average. This paper argues that an unanticipated significant feature of the rise in Northern Territory Indigenous criminalisation is the increased conviction of driving offences, particularly ++drive unregistered / unlicensed / uninsured++. This ++driving trifecta++ captures the Indigenous offender in one police process. This paper is based on a research project with Harry Blagg, which is funded by the Criminology Research Council. It suggests that the legality of Indigenous drivers and road safety would be better addressed through more effective means of regulating drivers and vehicles than law enforcement.
Anthony, T. & van Rijswijk, H.M. 2010, 'Historical and Ahistorical Narratives: drawing boundaries of 'consent' in Stolen Generations Cases', 29th Annual Australian and New Zealand Law and History Conference, Melbourne University, December 2010 in Owning the Past: Whose past? Whose present?.
Anthony, T. 2009, 'From Paradise to Prison: Palm Island', University of Sydney Macleay Museum Public Lecture, Macleay Museum, August 2009.
Anthony, T. 2009, 'Indigenous issues in the lasw curricula: moving beyond neo-colonial legal education', UTS Faculty of Law Teaching & Learning Seminar series, UTS, March 2009.
Anthony, T. 2009, 'Sentencing Indigenous Resisters as if the Death in Custody Never Occured', Critical Criminology Conference, Monash University, July 2009 in Australia and New Zealand Critical Criminology Conference, ed Segrave, Marie, School of Politcial and Social Inquiry, Monash University, Victoria, Australia, pp. 6-18.
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This paper addresses the trends in sentencing by higher courts of Indigenous protesters against `white+ racist violence. It contrasts earlier sentencing decisions affecting resisters on the Yarrabah Reserve in 1981 and towards the 1987 death in custody of Lloyd Boney at Brewarrina (NSW), with later sentencing of protesters after Mulrunji+s death in custody on Palm Island in 2004. It argues that Indigenous resisters are increasingly characterised by sentencing judges as out-of-control rather than capable of legitimate political engagement. This dovetails a denunciation of the Indigenous community in media moral panics that demands more punitive restraint.
Anthony, T. 2009, 'Indigenous recognition in criminal sentencing and the withering of the community', Australia and New Zealand Society of Criminology, Perth, November 2009.
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This paper considered the recharacterisation of Indigenous communities and the rising importance of Indigenous victims in criminal sentencing over the past decade. It focused on sentencing jurisprudence in relation to Indigenous offenders in remote communities. It argued that recognition of Indigenous communities in criminal sentencing is a malleable concept that is prone to law and order politics as well as the politics of Indigenous affairs. If Indigenous community factors are to be deemed relevant as sentencing factors they require clearer enunciation that is derived through an Indigenous community consultative and legislative process.
Anthony, T. 2009, 'Sentencing indigenous 'rioters' as if the death in custody never occurred', Australia & New Zealand Critical Criminology Conference 2009, Monash University, Melbourne, July 2009.
Anthony, T. 2008, 'Late-Modern Developments in Sentencing Principles for Indigenous Offenders:Beyond David Garland's framework', Australian and New Zealand Critical Criminology Conference, University Of New South Wales, June 2008 in Proceedings of the 2nd Australian and New Zealand Critical Criminology Conference, Crime & justice Research Network, ed Cunneen, Chris and Salter, Michael, The Crime and Justice Research Network, NSW, Australia, pp. 2-29.
Anthony, T. 2008, 'The Northern Territory Intervention & Stolen Wages', Law & Society Conference University of Sydney, December 2008.
Anthony, T. 2008, 'Teaching Indigenous Issues in Tort Law', conference on the future of Indigenous Studies in Australia & New Zealand Law School, Sydney Law School, July 2008.
Anthony, T. 2008, 'Developments in Sentencing Principles for Indigenous Offenders: Comparisons and Complexities', Critical Criminology Conference, University of New South Wales, June 2008.
Anthony, T. 2007, 'History wars and implications for native title', SUPRA Postgraduate Conference, University of Sydney, September 2007 in Express, Sydney University Postgraduate Representative Association, Sydney, pp. 16-17.
Anthony, T. 2007, 'Sir William Blackstone's feudal force in colonial settings', William Blackstone(1723-1780):Life, Thought, Influence Conference, University of Adelaide, December 2007.
Anthony, T. 2007, 'Diminishment of rights: Northern Territory and Cape York Indigenous Welfare Models', Australian Institute of Aboriginal and Torres Strait Islander Studies Conference, Australian National University, November 2007.
Anthony, T. 2007, 'Stolen wages: the long wait for Northern Territory Indigenous workers', Koori Centre Lectures, University of Sydney, August 2007.
Anthony, T. 2007, 'Legal Remedies for Stolen Indigenous Wages', Faculty of Law Lunch Seminar, University of Sydney, August 2007.
Anthony, T. 2007, 'Recent Policy Applications of Indigenous Difference', AIATSIS, Canberra, November 2009.
Anthony, T. 2006, 'Land Rights and Indigenous Legal Identities', Law and Society Conference, University of Wollongong, December 2006.
Anthony, T. 2006, 'William Blackstone's Feaudal Influence on north Australian Mode of production', 50th Anniversary Conference of the Oriental Society of Australia, University of Sydney, December 2006.
Anthony, T. 2006, 'Reconciliation and Conciliation: the irreconcilable dilemma of the 1965 Equal Wage Case for Aboriginal Station Workers++', Labour History Symposium: Working Life, Enterprise and Arbitration, University of Sydney, November 2006.
Anthony, T. 2006, 'Evidence in Native Title Cases and the History Wars', SUPRA Postgraduate Conference, University of Sydney, September 2006.
Anthony, T. 2006, 'New Directions in Indigenous Justice', Sociology Seminar series, Macquarie University, August 2006.
Anthony, T. 2006, 'Comparative Analysis and the Sociology of Law', Reading Julius Stone Intersections Series, University of Sydney, Faculty of Law, April 2006.
Anthony, T. 2003, 'Aboriginal labour and feudal law', 22nd Annual Conference of the Australian and New Zealand Law and History Society, Brisbane, July 2003.
Anthony, T. 2003, 'Undressing Keith Windschuttle: frontier crime and myths', Intercultural Studies Annual Conference,, University of Newcastle, June 2003.
Anthony, T. 2003, 'Frontier Conflict and Aboriginal Crime', Postgraduate Arts Conference, University of Sydney, May 2003.

Journal Articles

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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This article emerges from a study of the incidence of Indigenous driving offending conducted by the authors in the Northern Territory (NT) from 2006 to 2010 on two central Australian communities. It demonstrates how new patterns of law enforcement, set in train by an `Emergency Intervention+ in 2007, ostensibly to tackle child sexual abuse and family violence, led to a dramatic increase in the criminalisation of Indigenous people for driving-related offending. We suggest that the criminalisation of driving-related offending was part of a neocolonial turn in the NT through which the state sought to discipline, normalise and incorporate as yet uncolonised, or unevenly colonised, dimensions of Indigenous domain into the Australian mainstream. In terms of methodology, we adopted a mix of quantitative and qualitative approaches, blending criminal justice and policing data with insights from criminological, anthropological and postcolonial theory. We argue that running together the insights from different disciplinary traditions is necessary to tease out the nuances, ambiguities and complexities of crime control strategies, and their impact, in postcolonial contexts.
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, vol. May, no. 85, pp. 246-248.
Anthony, T. 2013, 'Indigenising Sentencing? Bugmy vs The Queen', Sydney Law Review, vol. 35, no. 2, pp. 451-466.
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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.
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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.
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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., van Rijswijk, H.M. 2012, 'Can the Common Law Adjudicate Historical Suffering?', Melbourne University Law Review, vol. 36, no. 2, pp. 618-655.
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The case of South Australia v Lampard-Trevorrow opens up key questions about the capacity and willingness of the common law to adjudicate past acts of the state. This article considers the significance of the appeal decision by examining what distinguishes the case from past, unsuccessful claims and considers its implications for future claimants from the Stolen Generations. In addition, we consider what the case means in terms of the law's acceptance of a practice of historical and evidential interpretation that is different from previous cases, and how this is particularly important regarding the issue of parental consent. We argue that the role and interpretation of consent have broad ramifications for law's potential to adjudicate responsibility for historical harms. We also argue that the findings in relation to false imprisonment and fiduciary duty limit the potential of the Trevorrow cases. In particular, we examine, and lament, the Full Court's more limited reading of false imprisonment in contrast to the trial judgment.
Anthony, T. 2012, 'Frameworks for Including Indigenous Issues in Torts: Stolen Generations Case Study', Ngiya: Talk the Law, vol. 4, pp. 30-45.
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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, 'The Northern Territory Intervention: the Ongoing Story of Withheld Indigenous Money', Ngiya: Talk the Law, vol. 3, pp. 2-12.
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Anthony, T. 2012, 'Introduction: Putting the 'Black' in Black Letter Law Subjects', Ngiya: Talk the Law, vol. 4, pp. 1-4.
Anthony, T. 2011, 'Sentencing Indigenous Riot Offenders in a Spatial Fantasy', Griffith Law Review, vol. 20, no. 2, pp. 385-420.
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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.
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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.
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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, '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 Simon++s model of ++governing through crime++ and Stanley Cohen++s work on ++net-widening++.
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. 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.
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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. 2009, 'The Disavowal of Context: Sentencing Lex Wotton', Indigenous Law Bulletin, vol. 7, no. 10, pp. 27-30.
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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, 'Manifestations of Moral Panics in the Sentencing of Palm Islander Lex Wotton', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 466-475.
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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, 'Quantum of Strategy: Models to combat Strategic Law Suits Against Public Participation', Australian Journal of Human Rights, vol. 14, no. 2, pp. 1-38.
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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, '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.
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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.
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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. 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: 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. 2007, 'Unmapped Territory: Indigenous Stolen wages on Cattle Stations', Australian Indigenous Law Review, vol. 11, no. 1, pp. 4-29.
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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.
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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 Commonwealth+s 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.
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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 [31]).
Anthony, T. 2006, 'Review: Black Glass: Western Australian Courts of Native Affairs 1936-54', Aboriginal History, vol. 30.
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.