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Dr Trish Luker

Biography

Dr Trish Luker joined the Law Faculty in 2012 as a Postdoctoral Research Fellow. She works in the areas of socio-legal research and critical legal theory, maintaining a research focus on interdisciplinary approaches to law, history and culture. Her postdoctoral research project is called 'Reading the Archive: Use of Historical Documents as Evidence in Law'. Trish is also a Chief Investigator on two Australian Research Council Discovery projects: the Australian Feminist Judgments Project (2012-14) and The Court as Archive Project (2013-16). She is a member of the Faculty's Health, Family and Communities research network and the Law & History and Law & Culture faculty research interest groups. Before coming to UTS, she held a Postdoctoral Research Fellowship at the University of Queensland. Trish obtained a PhD from La Trobe University in 2007.

Previously, Trish has worked as an author, editor and communications professional at the Victorian Law Reform Commission, the Federal Court of Australia and the State Library of New South Wales.

Professional

  • Executive member, Law and Society Association of Australia and New Zealand (LSAANZ)
  • Member, Law, Literature & the Humanities Association of Australasia
  • Non-Indigenous Research Affiliate, Indigenous Studies Research Network, Queensland Institute of Technology.

Image of Trish Luker
Chancellor's Post Doctoral Research Fellow, Faculty of Law
Core Member, LRC - Law
 
Phone
+61 2 9514 3416

Research Interests

  • Critical legal theory
  • Feminist legal theory
  • Critical race and whiteness studies
  • Socio-legal studies
  • Law and history

Can supervise: Yes

Books

Bartlett, F., Luker, T., Douglas, H. & Hunter, R. 2014, Australian Feminist Judgments Project Righting and Re-Writing Law.
This book brings together feminist academics, lawyers, and activists to present an impressive collection of alternative judgments in a series of Australian legal cases.

Chapters

Luker, T. 2016, 'Animating the Archive: Artefacts of law' in Motha, S. & van Rijswijk, H. (eds), Law, Memory, Violence: Uncovering the Counter-Archive, Routledge, Abingdon, Oxon, pp. 70-96.
It is an indispensable part of the liberal legal response to biopolitical violence. This collection challenges established approaches to transitional justice by opening up new dialogues about the problem of assembling law's archive.
Luker, P., Douglas, H., Bartlett, F. & Hunter, R. 2014, 'Introduction: Righting Australian Law' in Douglas, H., Bartlett, F., Hunter, R. & Luker, T. (eds), Australian Feminist Judgments: Righting and Rewriting Law, Hart Publishing, Oxford, UK, pp. 1-17.
Luker, P., Douglas, H., Bartlett, F. & Hunter, R. 2014, 'Reflections on Rewriting the Law' in Douglas, H., Bartlett, F., Luker, T. & Hunter, R. (eds), Australian Feminist Judgments: Righting and Rewriting Law, Hart Publishing, Oxford, UK, pp. 19-36.
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Thornton, M. & Luker, T. 2010, 'The Sex Discrimination Act and Its Rocky Rite of Passage' in Margaret Thornton (ed), Sex Discrimination in Uncertain Times, ANU E Press, Canberra, pp. 25-45.
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Journal articles

Luker, T. 2015, 'Performance Anxieties: Interprellation of the Refugee Subject in Law', Canadian Journal of Law and Society, vol. 30, no. 1, pp. 91-107.
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Refugee law posits the refugee as a rights-bearing subject prior to legal recognition. The determination procedures from which legal protection may be availed to a person escaping persecution demand that the applicant be recognizable as a subject entitled to laws power to name her as a refugee. In this article, I draw on speech act theory to investigate the rhetorical structure of refugee recognition. Viewed as a performative speech act, refugee subjectivity emerges as a result of repetition and citation of tropes of refugee-ness, which function to legitimate and naturalize certain representations as evidence of the grounds for protection. This places applicants in a paradoxical position: they must attempt to deliver their evidence as a performance of refugee-ness, but in making the narrative recognizable and understandable according to the norms of the legal process, the singularity, and possibly the authenticity, of the account may be lost. The argument is supported by empirical research conducted at the Australian Refugee Review Tribunal.
Biber, K. & Luker, T. 2014, 'Evidence and the Archive: Ethics, Aesthetics, and Emotion', Australian Feminist Law Journal, vol. 40, no. 1, pp. 1-14.
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Luker, T. 2013, 'Decision Making Conditioned by Radical Uncertainty: Credibility Assessment at the Australian Refugee Review Tribunal', International Journal of Refugee Law, vol. 25, no. 3, pp. 502-534.
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The increasing global magnitude and exigency of refugee status determination is resulting in recent attention to the parameters of credibility as part of evidentiary assessment in refugee law. In Australia, as in other countries, it is well recognised that applications for review of primary level decisions on refugee status commonly fail on the basis of credibility evidence. Furthermore, it has been suggested that the assessment of credibility is likely to be a source of error in decision making. This article reports on the results of a small-scale study into decision making and credibility assessment at the Australian Refugee Review Tribunal involving interviews with decision makers. Drawing on feminist theories of epistemic responsibility, it argues for a revised standard of proof, suggesting a rebuttable presumption of credibility, or truthfulness, on the part of the applicant seeking asylum. Such an approach may go some way towards addressing the potential for epistemic injustice and is consistent with a position of epistemological responsibility demanded by an ethical obligation to the refugee.
Luker, T. 2012, 'Book Review: Aboriginal Child Welfare, Self-government and the Rights of Indigenous Children by Sonia Harris-Short', Aboriginal History, vol. 36, pp. 189-191.
Review of Aboriginal Child Welfare, Self-government and the Rights of Indigenous Children: Protecting the Vulnerable Under International Law by Sonia Harris-Short (Ashgate, Farnham, 2012)
Luker, T. 2010, 'White Mother to a Dark Race: Settler Colonialism, Maternalism, and the Removal of Indigenous Children in the Americal West and Australia, 1880-1940, by Margaret Jacobs', International Journal of Critical Indigenous Studies, vol. 3, no. 1.
Thornton, M. & Luker, T. 2010, 'Age Discrimination in Turbulent Times', Griffith Law Review, vol. 19, no. 2, pp. 141-171.
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Concerns about the ramifications of a rapidly ageing population have generally focused on the post-retirement period, with limited scholarly attention to the experience of ageism in the workplace. Despite a shift in policy against early retirement, Ê»older workersʼ â who may be as young as 40 â are disproportionately experiencing age discrimination, often resulting in joblessness. We argue that in a postmodern environment, where the culture of Ê»youthismʼ predominates, the workplace is undergoing significant changes. In the new knowledge economy, characterised by technological knowhow, flexibility and choice, traditional values such as maturity, experience and loyalty have become passé. Drawing on Australian complaints and reported decisions of age discrimination in the workplace in the context of the international literature, we demonstrate the variety of forms ageism is taking. We argue that age discrimination legislation reflects an outdated modernist paradigm that fails to address the experience of older workers. In addition, as part of the culture of youthism, work is now being gauged by its capacity to create an aesthetic of pleasure.
Thornton, M. & Luker, T. 2010, 'The New Racism in Employment Discrimination: Tales from the Global Economy', The Sydney Law Review, vol. 32, no. 1, pp. 1-27.
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Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on David Goldberg's thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.
Thornton, M. & Luker, T. 2009, 'The Wages of Sin: Compensation for Indigenous Workers', The University of New South Wales Law Journal, vol. 32, no. 3, pp. 647-673.
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The exploitative practices by employers that led to the situation of 'stolen wages' of Indigenous Australians, which denied them their rightful employment wages during the 19th and 20th centuries are discussed, as also the legal efforts undertaken by the Indigenous people to rectify the situation. It is suggested that anti-discrimination legislation should be used when considering the resolution of the relevant cases instead of the breach of fiduciary duty clause being used currently.
Luker, T. 2009, 'Reading the Evidentiary Void: The Body at the Scene of Writing', Griffith Law Review, vol. 18, no. 2, pp. 298-312.
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In Cubillo v Commonwealth (2000), a form of consent with the purported thumbprint of Topsy Kundrilba was found to offer sufficiently persuasive evidence to reject the claim of forcible removal of an Indigenous child. In this landmark action in relation to the Stolen Generations, the thumbprint was imbued with the status of a signature which was interpreted as indicating a mother½s informed consent to the removal of her son. Drawing on Derrida½s concept of iterability, I suggest that the thumbprint cannot be read as a signature, and propose an alternative deconstructive reading. I argue that the form of consent exemplifies colonial documentary practices which were implemented in an attempt to make Indigenous subjects legible and to produce subjectivity which conformed to normative white patriarchal order.
Thornton, M. & Luker, T. 2009, 'The Spectral Ground: Religious Belief Discrimination', Macquarie Law Journal, vol. 9, pp. 71-91.
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This article considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. Religious belief is never defined under anti-discrimination law; it merely has to be 'lawful', which is also not defined. This gives the proscription a permeable character, allowing mainstream Christianity, neoconservatism and other variables to seep in. An analysis of discrimination complaints shows how this occurs metonymically through other proscribed grounds, such as sexuality, ethnicity and race. The phenomenon is most marked post-9/11 in relation to 'Islamophobia'. The proscription of religious vilification and incitement to religious hatred further reveals the tendency of the spectral ground to absorb prevailing political influences.
Luker, T. 2008, 'Ineffaceable Memories: The Truth of Testimony', The Australian Feminist Law Journal, vol. 29, pp. 133-154.
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The traditional approaches to evidence law are analysed through an investigation of claimant Lorna Cubillo's testimony in the historic Stolen Generations trial against Australia's Commonwealth government. The significance of Cubillo's testimony is the narration of an event that left an ineradicable impression on her, giving rise to her racialised status. The author argues that the true power of testimony is in its effect, its ability to destabilise dominant narratives and in the fact of the narrator's survival.
Luker, T. 2008, 'Witnessing Whiteness: Law and Narrative Knowledge', Australian Critical Race and Whiteness Studies, vol. 4, no. 2, pp. 1-14.
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In this article, I interrogate the reception of testimonial evidence given by Lorna Cubillo in the trial of Cubillo v Commonwealth (2000) ('Cubillo'), the landmark action taken by members of the Stolen Generations. Drawing on Lyotard's account of the distinction between narrative knowledge and scientific knowledge, I argue that while law makes its claim to legitimacy through demonstrable proof, it must ultimately seek an appeal to narrative forms of knowledge. The relationship between law and narrative is key to a critical reading of the Cubillo decision, which provides an important site for an analysis of the function of whiteness in the treatment of evidence in Anglo- Australian law. I argue that through reliance on legal positivism as the method of judicial interpretation, the decision privileges forms of 'scientific' knowledge which most readily support dominant paradigms of historical truth. At the same time, the significance of 'narrative' knowledge to the arguments presented in the case, particularly that which does not support notions of white cultural memory, is discredited.
Luker, T. 2005, ''Postcolonising' Amnesia in the Discourse of Reconciliation: The Void in the Law's Response to the Stolen Generations', The Australian Feminist Law Journal, vol. 22, pp. 67-88.
Luker, T. 2005, 'Intention and Iterability in Cubillo v Commonwealth', Journal of Australian Studies, vol. 28, no. 84, pp. 35-41.
Luker, T. 2005, 'Intention and Iterability in Cubillo V Commonwealth', Journal of Australian Studies, vol. 84, no. 1, pp. 35-41.
In August 2000, the Federal Court of Australia handed down the decision in Cubillo v The Commonwealth, in which Lorna Cubillo and Peter Gunner unsuccessfully took action against the federal government arguing that it was vicariously liable for their forcible removal from their families during the 1940s and 50s. In his decision, Justice O'Loughlin found an undated, unwitnesses form with the purported thumbprint of Gunner's mother to be sufficiently persuasive evidence that she had given informed consent to his removal. The author examines Justice O'Loughlin's treatment of the form of consent drawing on a semiotic framework, with particular attention to the significance of the concept of intention to the interpretation of the document.