Dr Thalia Anthony's expertise is in the areas of criminal law and procedure and Indigenous people and the law, with a particular specialisation in Indigenous criminalisation and Indigenous community justice mechanisms. Her research is grounded in legal history and understandings of the colonial legacy in legal institutions. She has developed new approaches to researching and understanding the role of the criminal law in governing Indigenous communities and how the state regulates Indigenous-based justice strategies. Her research is informed by fieldwork in Indigenous communities and partnerships with Indigenous legal organisations in Australia and overseas. Dr Anthony’s research informs her teaching in terms of advancing strategies for Indigenous cultural competencies in Law curricular, which had its genesis in 2008 when she organised an Australian and New Zealand conference on this theme.
Her research has had an impact on policy development and public debates in relation to remedies for wrongs inflicted on Indigenous peoples. Her work has been referred to in Senate committee reports, parliamentary debates, policy announcements and law reform committee reports.
Professor Anthony’s scholarship is published in a number of books, including her influential monograph, Indigenous People, Crime and Punishment (Routledge 2013) and a forthcoming book with Professor Harry Blagg, Decolonising Criminology (Palgrave 2019). She has strong connections with justice and advocacy groups, including UTS’ Jumbunna and Aboriginal legal services, and regularly provides expert opinion in the media and public debates.
Dr Anthony provides advice and research for High Court cases, appellate court sentencing and bail applications, child protection matters, and United Nations human rights, racial discrimination and torture prevention committees. She provides high level input into the New South Wales Bar Book Project and prepares and reviews research briefs for the Attorney-Generals’ Indigenous Justice Clearinghouse. She also provides evidence to Royal Commissions, parliamentary inquiries, Aboriginal Justice Agreements and coronial inquests.
Can supervise: YES
- Indigenous Legal Issues
- Criminal Law and Procedure
- Criminology and Penology
- Legal History
- Social Justice
- Colonisation and criminal justice
- Systemic Racism in Legal Institutions
- Legal Education
- Criminal Law
- 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
This important text combines commentary with primary sources to provide a contextualised approach to the legal principles underpinning criminal procedure in Australia. It offers a unified and comprehensive analysis of the law relating to policing, criminal prosecutions, pre-trial and trial issues, sentencing and criminal appeals. In addition, the book examines the extensive Commonwealth and state and territory legislation and case law in the fields of police investigation and Crown prosecutor’s powers and duties across all jurisdictions.
Blagg, H & Anthony, T 2019, Decolonising Criminology Imagining Justice in a Postcolonial World, Springer Nature.
This book undertakes an exploratory exercise in decolonizing criminology through engaging postcolonial and postdisciplinary perspectives and methodologies.
Anthony, T & Sanson, M 2018, Connecting with Law, 4th, Oxford University Press, Melbourne.
1. Learning Law: How Can I Develop A Legal Mind?
2. Sources: What Is The Law Itself?
3. Legal Institutions: How Is Law Made?
4. Classifying and Practicing Law: How Are Cases Resolved?
5. Research: How Do I Find the Law?
6. Communication: How Do I Engage With Others About the Law?
7. Jurisprudence: What Is Law?
8. History: How Did Australian Law Develop?
9. Australia: Where Do Indigenous Laws Fit In?
10. Precedent: How Do Judicial Decisions Become Law?
11. Statutory Interpretation: How Do Courts Interpret Legislation?
12. The Profession: What Do Lawyers Do?
13. Law in Society: What Are the Problems and Remedies For Accessing Justice?
14. My Law Career: How Can I Best Prepare For It?
Anthony, T & Sanson, M 2014, Connecting with Law, 3rd, Oxford University Press, Melbourne.
Feld, F, Hemming, A & Anthony, T 2014, Criminal Procedure in Australia, Lexis Nexis, Sydney.
Key primary source for anyone with a scholarly interest in the workings of Australia’s justice system Criminal Procedure in Australia draws on the successful book Litigation II — Evidence and Criminal Process to create a fresh and innovative treatment of the subject.
The book is unique in its breadth and depth of coverage of the criminal procedural laws across Australia. It provides a unified and comprehensive analysis of the law relating to policing, criminal prosecutions, pre-trial and trial issues, sentencing and criminal appeals. In addition, the book examines the extensive Commonwealth and state legislation and case law in the fields of police investigation and Crown prosecutor’s powers and duties across all jurisdictions.
Anyone with a scholarly interest in the workings of Australia’s justice system will find this book a key primary source, appreciating the book’s coverage of criminal procedure, supported by a commentary that embraces a contextualised and critical approach to legal doctrine.
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
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, MJ & 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 & Dixon, T 1999, Environmental Economics, 1st, Leading Edge Publications, Sydney.
Dixon, T & Anthony, T 1998, Evolution of Economic Ideas, 1st, Leading Edge Publications, Sydney.
Anthony, T & Hinkson, M 2020, 'Three Shots', Arena Magazine, vol. 163, no. 12 2019-01 2020, pp. 16-21.
This article examines the background circumstances to the death in custody of Kumanjayi Walker, including policing, incarceration and dispossession of Aboriginal people under the Northern Territory Intervention - a Federal Government discriminatory policy since 2007.
Anthony, T & Tranter, K 2019, 'Travelling our way or no way!: the collision of automobilities in Australian Northern Territory judicial narratives', Griffith Law Review, vol. 27, no. 3, pp. 281-306.View/Download from: UTS OPUS or Publisher's site
© 2019, © 2019 Griffith University. The regulation of driving and cars has taken on increasingly criminal guises. Apart from the role of insurance companies and motor vehicle registries, criminal law has stepped in to penalise drivers and car owners through more draconian measures. This article examines the problems that this presents for Indigenous drivers whose concepts of automobility are at odds with those of the nation state. It details the judicial narratives of this collision of automobilities in sentencing Indigenous drivers to argue that the Australian ‘settler state’ is continuing the practice of using mundane regulatory laws to dismantle and assimilate Indigenous communities.
Anthony, T, Walsh, T, McNamara, L & Quilter, J 2019, 'National Study on the Criminalisation of Homelessness and Poverty', Parity, vol. 32, no. 4, pp. 32-34.
Tranter, K & Anthony, T 2019, 'Race, Australian Colonialism and Technologies of Mobility in Kalgoorlie', University of Western Australia Law Review, vol. 45, no. 2, pp. 99-135.View/Download from: UTS OPUS
This article argues that the legal texts that record the death of Indigenous boy Elijah Doughty in a reserve in Kalgoorlie-Boulder in 2016 highlights the intersections of technologies of mobility within the Australian colonial project. Elijah died when the small motorcycle he was riding was run over by a large utility vehicle driven by the non-Indigenous assailant, ‘WSM’. This occurred within a wider social media centred context of racist anxieties and hate speech directed towards Indigenous children being in public and mobile around Kalgoorlie-Boulder. Elijah’s death and the subsequent legal reactions, to Indigenous protests, to the endurance of social media racist hate speech directed to Kalgoorlie-Boulder’s Indigenous children, to determining the location of the trial and who can speak at the trial, to the concern and pity expressed towards ‘WSM’, shows how technologies of mobility, reinstate and bolster colonial mobilities and their destructive effects on Indigenous people.
Anthony, T 2018, '“They Were Treating Me Like a Dog”: The Colonial Continuum of State Harms Against Indigenous Children in Detention in the Northern Territory, Australia', State Crime Journal, vol. 7, no. 2, pp. 251-277.View/Download from: UTS OPUS or Publisher's site
The analytic lens of state crime can inform our understanding of the mistreatment of Indigenous children and young people in settler-colonial state institutions. Based on a critical analysis of the proceedings and findings of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–2017), this article identifies state crimes of torture and abuse inflicted on Indigenous children in carceral and non-carceral institutions. These crimes breach international human rights laws but are more than a set of individual harms. They are also part of a pattern of ongoing structural violence that reasserts the settler-colonial state’s sovereign position. This article identifies that the Royal Commission itself is complicit in reproducing state sovereignty. It argues that redressing state crimes against Indigenous children requires challenging
the structural injustice of the settler-colonial state.
In 2016, the nation was horrified when footage showing youth in Don Dale Juvenile Detention Centre was released, and subsequently the Royal Commission into the Protection and Detention of Children in the Northern Territory was established to investigate failings in the child protection and youth detention systems of the Territory. This article discusses the implications and consequences of that Royal Commission for the incarceration of Indigenous youth.
This article examines the transcripts of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–17) to uncover processes and discourses of exclusion of Aboriginal children who have been rendered by the state surplus to humanity. It draws attention to the state’s practices in youth detention and the justifications of guards and detention managers before the Royal Commission as premised on notions of Aboriginal children’s disorder and deviance. This characterisation, and the ensuing harmful state practices, have taken on a new intensity since the federal government introduced racially discriminatory policies and practices in 2007 in order to restrict the rights of Aboriginal people living in remote NT communities and town camps.
Redfern is a microcosm of many colonial and postcolonial frontiers across Australia. Colonial violence in the early nineteenth century was met with resistance by the Gadigal people and other clans of the Eora nation. State violence and Aboriginal struggle cast long shadows over Aboriginal experiences in Redfern. The wounds of injustice that lie open, especially in recent decades from policing, continue to be a focal point for local Aboriginal people and organisations. A flashpoint for the injustice in Redfern is the death of Aboriginal teenager TJ Hickey in a police chase in 2004 and the lack of subsequent accountability. This article traces the fraught history of discriminatory policing in Redfern and the ongoing plight for justice.
This article posits a post-disciplinary framework to offer an alternative to the epistemological premise of positivist criminology. We seek to destabilise the punitive, deficit analysis of Indigenous people by Western, positivist Criminology. Instead, we look towards Indigenous strengths and resilience to counter deficit narratives about Indigenous people that have served to over-criminalise and over-incarcerate Indigenous peoples since colonisation. In doing so, we argue that positivist disciplinary knowledge is complicit in undermining Indigenous knowledges. We provide a case study that contrasts an institutional approach to researching ‘grog trials’ with the approach of the Tangentyere Research Hub, our ongoing research partner in Alice Springs (Central Australia). Our case study demonstrates the benefits of Tangentyere’s reliance on local Indigenous knowledges and perspectives, rather than disciplinary assumptions, for empowering, strengthening and supporting Indigenous communities and self-governance. In attempting to decolonise criminology, we advance a postdisciplinary approach that highlights questions of Indigenous wellbeing and its relationship with Indigenous self-determination over inquiries into Indigenous crime and the punitive role of the state.
Murphy, JR, Anthony, T & Grant, E 2018, 'Indigenous Courthouse and Courtroom Design in Australia: Case Studies, Design Principles and Issues'.
Shepherd, SM & Anthony, T 2018, 'Popping the cultural bubble of violence risk assessment tools', Journal of Forensic Psychiatry and Psychology, vol. 29, no. 2, pp. 211-220.View/Download from: UTS OPUS or Publisher's site
© 2017 Informa UK Limited, trading as Taylor & Francis Group. Violence risk instruments are administered in medico-legal contexts to estimate an individual’s likelihood of future violence. However, their ostensible limitations; in particular their mono-cultural and risk-centric composition, has drawn academic attention. These concerns may facilitate erroneous risk evaluations for certain non-white populations. Yet it remains unaddressed how cultural differences will be appraised in a risk assessment framework and which specific cultural factors should be considered. Provisions under the Canadian Criminal Code allow for Gladue Reports, to be sought by judicial officers prior to sentencing Indigenous people. Gladue Reports provide insights into an Indigenous person’s unique circumstances that may have led to their offending as well as community-based options for rehabilitation. We proffer that there may be value in augmenting the risk evaluation with culturally relevant Gladue style considerations identified by relevant Indigenous people to provide a more holistic account of an Indigenous individual’s circumstances.
Almost ten years after the Northern Territory Intervention was rolled out, the federal government was made aware of Aboriginal child abuse. It’s not the kind of abuse that ostensibly precipitated the Intervention. It’s more a symptom of the Intervention. The abuse was broadcast on the ABC’s Four Corners in July 2016 and included images of large, stocky white men beating Aboriginal children, spraying tear gas in their faces and all over their bodies, caging them in isolated cells, and trapping their heads in hoods and their wrists and ankles in shackles. This abuse took place in youth detention.
Anthony, T & Crofts, P 2017, 'Special Edition: Limits and Prospects of Criminal Law Reform – Past, Present, Future', International Journal for Crime, Justice and Social Democracy, vol. 6, no. 3, pp. 1-7.View/Download from: UTS OPUS or Publisher's site
This special issue traces multifaceted readings of criminal law reform in the context of developments in Australia, North America and Europe. It addresses a range of criminal law legislative regimes, frameworks and issues confronting criminal law reform including as they relate to family violence, organisational liability for child sexual abuse, drug‐driving and Indigenous under‐representation on juries. In doing so, the articles variously assess the impacts of past criminal law reforms, current processes of reform, areas in need of future reform and the limitations of reform. It poses a number of challenges: Who does law reform serve? What principles should guide the work of criminal justice reform? What is the role and responsibility of universities in law reform? Who are the natural allies of academics in agitating for reform? Is reform of criminal law enough for progressive social change? Do public inquiries and law reform assist with progressive change or do they have the potential to undermine the struggle for more humane and equitable social responses?
The term criminal ‘law reform’ is a broad one that encompasses any government legislation, policy or measure, and the articles in this issue reflect such breadth. However, the analysis in this Introduction to the special issue—responding to some of the for bearing questions—is concerned with the potential for law reform as an antidote to the myopic politics of social control. The use of the term ‘law reform bodies’ denotes a government agency dedicated to the considered and balanced appraisal of policy and operates relatively insulated from populist politics. Law
reformers more broadly—including academics, community legal centres and other non‐government organisations—have the potential to counterbalance the impetus for politicians to pursue knee‐jerk policy. These bodies provide a voice of dissent, including in the public arena and through the processes of petitioning, ministerial lobbying and activism.
Anthony, T & Longman, C 2017, 'Blinded by the white: A comparative analysis of jury challengeson racial grounds', International Journal for Crime, Justice and Social Democracy, vol. 6, no. 3, pp. 25-46.View/Download from: UTS OPUS or Publisher's site
Indigenous peoples in Australia, the United States and Canada are significantly overrepresented as defendants in criminal trials and yet vastly underrepresented on juries in criminal trials. This means that all‐white juries mostly determine the guilt of Indigenous defendants or white defendants responsible for harming Indigenous victims. In this article, we explore cases in which Indigenous defendants have perceived that an all‐white jury’s prejudice against Indigenous people would prevent them receiving a fair trial. It focuses on Indigenous defendants (often facing charges in relation to protesting against white racism) challenging the array of all‐white juries. Across these cases, Australian courts rely on formal notions of fairness in jury selection to dismiss the Indigenous defendant’s perception of bias and foreclose an inquiry into the potential prejudices of white jurors. We compare the Australian judicial ‘colour‐blindness’ towards all‐white juries with that of the United States and Canada. We argue that the tendency for courts in the United States and Canada to question jurors on their biases provides useful lessons for Australian judiciaries, including in relation to the impending trials of Indigenous defendants in Kalgoorlie, Western Australia, accused of committing crimes in response to white racist violence. Nonetheless, across all jurisdictions where there is a challenge to the array based on racial composition, courts consistently uphold all‐white juries. We suggest that the judicial view of the racial neutrality of white jury selection misapprehends the substantive biases in jury selection and the injustice perceived by defendants in having a white jury adjudicate an alleged crime that is committed in circumstances involving protest against white prejudice.
Anthony, T, Marchetti, E, Behrendt, L & Longman, C 2017, 'Individualised Justice through indigenous Community Reports in Sentencing', Journal of Judicial Administration, vol. 26, no. 3, pp. 121-140.View/Download from: UTS OPUS
There is a growing pool of research on court outcomes in sentencing Indigenous people but relatively little research on the information available to sentencing courts to consider Indigenous background. Although Australian courts mostly have discretion to consider Indigenous circumstances, such consideration depends on submissions and reports tendered in court. The High Court in Bugmy v The Queen (2013) stated “it is necessary to point to material tending to establish [the defendant’s deprived] background” if it is to be relevant in sentencing.1 The main repository of court information on defendant background is counsel submissions and, where the defendant is facing imprisonment, Community Corrections’ Presentence Reports. Based on 18 interviews with judicial officers, lawyers and court staff in New South Wales and Victoria, this article identifies the need for more information on relevant Indigenous background factors in sentencing. The introduction of discrete Indigenous community reports that present Indigenous perspectives on the person’s background and rehabilitation was regarded as important for addressing the Bugmy requirement. This article makes reference to the wide-scale experience in Canada of First Nations presentence reports, known as “Gladue Reports”, and the more small-scale Australian experiences of Indigenous cultural reports, to indicate how this material can enhance individualised justice in sentencing Indigenous peoples.
Anthony, T & Grant, E 2016, 'Courthouse Design Principles to Dignify Spaces for Indigenous Users: Preliminary Observations', International Journal for Court Administration, vol. 8, no. 1, pp. 43-59.View/Download from: UTS OPUS or Publisher's site
Historically, Australian court architecture layout, design and details are intimately tied to the physical aspects of British imperial institutions. Displaying the visual features of the Empire’s institutions has the effect of alienating Indigenous people within courts. This is compounded by design that is oblivious to the needs of Indigenous users and consequently places these users in situations that threaten their privacy, safety and wellbeing. This article contends that architectural design that seeks to accommodate Indigenous cultural and socio-spatial needs brings into sharp relief the barriers and harms otherwise confronting Indigenous people in courts. This article discusses three court complexes designed in collaboration with Indigenous communities to accommodate Indigenous connections to the environment surrounding the courthouse and to enhance access to justice. Indigenous collaborations in the design of the Indigenous-inclusive court complexes at Port Augusta (South Australia), Kalgoorlie and Kununurra (Western Australia) produced spatially distinct courthouses that eschew some historical court design principles and attempt to introduce features relevant to local Indigenous nations. This illustration essay discusses the emergence of Indigenous design principles that may inform courthouse redesign, the application of some of these principles in new courthouse designs and the need for local Indigenous oversight in the design processes. It provides a framework for further research into how Indigenous architectural collaborations in courthouse designs may promote safer and fairer environments for Indigenous court users. It also raises some potential disjuncture between court design and use of court space that may undermine the vision embedded in cultural design principles.
Anthony, T 2015, 'Two Laws: Indigenous Justice Mechanisms in Context', Journal of Australian Indigenous Issues, vol. 18, no. 1, pp. 99-115.
Anthony, T & Crawford, W 2015, 'Indigenous Sentencing Courts: a renewed legislative foundation', Balance: Journal of the Law Society of the Northern Territory, no. 1, pp. 46-54.
Historically, courthouses have been a means of alienating Aboriginal people from their community and place. Designed in partnership with local Indigenous communities, the new Kununurra courthouse reflects the intersection of the justice system with Indigenous worldviews.
Anthony, T, Bartels, L & Hopkins, A 2015, 'Lessons lost in sentencing: Welding individualised justice to Indigenous justice', Melbourne University Law Review, vol. 39, no. 1, pp. 47-76.View/Download from: UTS OPUS
Sherwood, J, Lighton, S, Dundas, K, French, T, Link- Gordon, D, Smith, K & Anthony, T 2015, 'WHO ARE THE EXPERTS HERE? Recognition of Aboriginal women and community workers in research and beyond', AlterNative: an international journal of indigenous scholarship, vol. 11, no. 2, pp. 177-191.
This paper explores how Indigenous- centred methodologies are crucial to the design and conduct of research projects that seek to have meaningful outcomes for Indigenous women and communities. We draw on experiential observations of an advisory group led by Indigenous experts that was part of the Social and Cultural Resilience and Emotional wellbeing of Aboriginal Mothers in prison (SCREAM) research project. From their experience we identify lessons for how Indigenous expertise can be utilized to promote mutually respectful relationships among Indigenous and non- Indigenous researchers, organizations and agencies. We found that the formation of an Indigenous- led advisory group from a project’s inception is a powerful vehicle for informing its purposes, method and dissemination of findings back to Indigenous participants and communities. Our approach has produced a set of data on Indigenous women prisoners that prioritizes, rather than pathologizes, Indigenous standpoints, and recognizes the complex effects of colonization for these women. This paper seeks to convey the research process to inform future research that engages Indigenous participants.
Anthony, T & Crawford, W 2014, 'Northern Territory Indigenous community sentencing mechanisms: An order for substantive equality', Australian Indigenous Law Review, vol. 17, no. 2, pp. 79-99.
Blagg, H & Anthony, T 2014, '"If Those Old Women Catch You, You're Going To Cop It”: Night Patrols, Indigenous Women, and Place Based Sovereignty in Outback Australia', African Journal of Criminology and Justice Studies, vol. 8, no. 1, pp. 103-124.View/Download from: UTS OPUS
Night Patrols (‘patrols’) are a uniquely Indigenous Australian form of community self-policing. Patrols do not fit neatly into established paradigms of ‘policing’ emanating from the Global North. They are not part of the apparatus of the state police, nor do they offer commodified private security services and, unlike mainstream police, they cannot legitimately call on a reservoir of coercive powers to ensure compliance. In this article we sketch out what we describe as the ‘contested space’ of Indigenous self-policing, as represented by patrols, through a postcolonial lens, paying particular attention to the role of Indigenous women’s agency in creating, nurturing and sustaining night patrol work within an Indigenous ethics of care and notions of wellbeing. Drawing on international critical postcolonial scholarship we tease out the links between patrol work and broader expressions of sovereign power embedded in Indigenous law. Our key contention is that there are learnings from the Australian experience for other postcolonies, where there are kindred debates regarding the balance between Indigenous and colonial systems of justice and policing. We highlight the experience of patrols in the Northern Territory (NT) where the policing of Indigenous space and place have become a key priority for the Australian Government after a major focus on issues of child abuse and family violence.
Hamer, DA, Anthony, T, Biber, K, Crofts, P, Dennis, I, Douglas, H, Eburn, M, Edmond, G, Farrar, S, Hopkins, A, Kumar, MA, Ligertwood, A, Loughnan, A, Mitchell, T, Palmer, A, San Roque, M & Townsley, L 2014, 'Submission on Exposure Draft: Evidence Amendment (Evidence of Silence) Bill 2012', Sydney Law School Research Paper, no. 14.
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 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 & 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.View/Download from: UTS OPUS or Publisher's site
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 & Schwartz, M 2013, 'Invoking Cultural Awareness Through Teaching Indigenous Issues in Criminal Law and Procedure', Legal Education Review, vol. 23, no. 1, pp. 31-56.View/Download from: UTS OPUS
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.
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.
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.
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 2011, 'Moral Panics and Misgivings over Indigenous Punishment: Sentencing Cultural Crimes in Australia's Northern Territory', Cambrian Law Review, vol. 42, pp. 91-112.View/Download from: UTS OPUS
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.
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.
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
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, 'Aboriginal Self-determination after ATSIC: reappropriation of the 'original position'', Polemic, vol. 14, no. 1, pp. 4-15.
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 Simonâs model of âgoverning through crimeâ and Stanley Cohenâs work on ânet-wideningâ.
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, 'Sentencing Indigenous Offenders', Research Brief: Indigenous Justice Clearinghouse, vol. Brief 7, no. March 2010, pp. 1-8.
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 & Findlay, M 2010, 'Teaching Indigenous Issues in Criminal Law and Criminal Procedure: Dispossession and Recognition', Sydney Law School Research Paper, no. 10.
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.
© 2009 Taylor and Francis Group, LLC. The focus of human rights scholars in recent times has been on the state's coercive powers to curtail civil liberties (Fitzpatrick 2003; Roberts 2004, 721–49; Hamilton and Maddison 2007). However, less attention has been given to the increasing role of large corporations in containing resistance. This article will discuss the corporate use of private civil actions to deter and punish protesters. These are known as Strategic Lawsuits Against Public Participation (SLAPPs) and have had many legal guises, including negligence, defamation and nuisance. However, they are most easily identified by their targets: individuals and groups which publicly protest against activities by corporations that undermine human rights or result in damage to the environment. SLAPPs are being used across Western societies not to acquire damages (as many of these cases are not successful, or do not even reach trial), but, rather, to silence the protest and instill fear of a civil action in the minds of current and potential participants. This article looks at the impact of SLAPPs on human rights, particularly those embraced by Art 20 of the Universal Declaration of Human Rights, such as freedom of assembly, association, expression and political participation. Essentially, the article argues that legislation directed to this abuse of legal process is needed to combat SLAPPs. It draws on the experience of the United States and other jurisdictions in developing ‘model’ anti-SLAPP legislation, and the recent enactment in the Australian Capital Territory of similar legislation. It argues specifically that the legislation needs to provide an objective test based on a broad definition of public participation, as well as adequate provisions for summary dismissal, if the anti-SLAPP legislation is to be effective.
Anthony, T 2009, 'Reviews: 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.
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.
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, '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, '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, 'Review: Black Glass: Western Australian Courts of Native Affairs 1936-54', Aboriginal History Journal, vol. 31, pp. 203-205.
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, '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.View/Download from: UTS OPUS
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
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.
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 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.View/Download from: UTS OPUS
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.
Unmapped Territory: Indigenous Stolen wages on Cattle Stations
Anthony, T 2007, 'Unmapped Territory: Wage Compensation for Indigenous Cattle Station Workers', Australian Indigenous Law Review, vol. 11, no. 1, pp. 4-29.
Anthony, T 2006, 'Indigenous Self-Determination & Crime:Out of Tune & out of time', This Century's Review, no. 03/06.
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.
Anthony, T 2020, 'Questioning Indigenous-Settler Relations: Interdisciplinary Perspectives' in Questioning Indigenous-Settler Relations Interdisciplinary Perspectives, Springer, pp. 33-54.View/Download from: UTS OPUS
This chapter is concerned with the relationality of law and politics in historical and contemporary expressions of colonial sovereignty in the Northern Territory of Australia and how this weaves webs of control over Indigenous peoples’ lives. It illustrates the inter-disciplinary exercise of colonial carceral control, encompassing ‘welfare carceralism’, ‘protectionist carceralism’ and ‘penal carceralism’. In doing so, it delves deeper than the current focus on mass imprisonment to demonstrate that incarceration has a long colonial lineage. It concludes that a relational analysis—of place, time and disciplines—opens up a broader understanding of structural colonial oppression and Indigenous resurgence that challenges colonial carceralism through self-determination. It does this through the lens of the Royal Commission into the Protection and Detention of Children in the Northern Territory.
Anthony, T & Blagg, H 2020, 'Roads to freedom? Indigenous mobility and settler law in Central Australia' in Carlen, P & Ayres França, L (eds), Justice Alternatives, Routledge, Oxon, pp. 144-157.View/Download from: UTS OPUS
This chapter interrogates mobility as a site of freedom, ambivalence and hybridity within the framework of colonial settler/ Indigenous relationships in Central Australia, which is located in the imposed jurisdiction of the Northern Territory of Australia. It emerges from a suite of research projects on law, policing and mobility in Central Australia. The first research phase coincided with the 2007 Northern Territory Emergency Intervention (‘the Intervention’) designed to eradicate a perceived epidemic of family violence and child abuse through a massive increase in police numbers on remote Aboriginal communities. The second, from 2014 to the present, has focused on what we call Indigenous counter- mobilities. The first counter-mobility relates to community law and justice and involves place-based mobility strategies by Warlpiri women Elders to ‘patrol’ their own communities in order to enhance social and cultural well- being and to reduce inter-personal harms, which we view as a form of place- based sovereignty. The second relates to the vehicle itself as a necessary part of life in remote Australia and how it is being ‘hybridized’ and ‘Indigenised’ to reflect the cultural and economic realities of life in the remote outback. We see both, in their different guises, as being engaged in what South American theorists with an interest in Amerindian liberation call the politics of ‘decoloniality’ (see Escobar 2010 ; Maldonado- Torres 2011 ).
Anthony, T 2018, 'Car Crimes and the Cultural Imagination' in Rafter, N & Brown, M (eds), The Oxford Encyclopedia of Crime, Media, and Popular Culture, Oxford University Press, UK, pp. 99-113.
Blagg, H & Anthony, T 2018, '"Stone walls do not a prison make": Bare Life and the Carceral Archipelago in colonial and postcolonial societies' in Stanley, E (ed), Human Rights and Incarceration: Critical Explorations, Palgrave Macmillan, Germany, pp. 257-283.View/Download from: UTS OPUS or Publisher's site
This chapter offers what Edward Said (1993) referred to as a ‘contrapuntal’ reading of Australian prisons as exclusive sites of settler colonial repression. We suggest that Indigenous peoples are part of The Camp outside of the prison where settler colonial relations reduce their lives to ‘bare life’. We refer to transcripts from the 2016-17 Royal Commission into Child Protection and Youth Detention in the Northern Territory to reveal how the racist treatment of Indigenous children in prisons is part of the same continuum of the racist treatment of Indigenous people across the Northern Territory. Imprisonment is characterised not as an exceptional state of un-being, outside of ‘normal’ social relationships for Indigenous people. Rather, in the colony the exception is the norm. While we support penal abolitionism, we maintain that this can only be meaningful within a decolonizing process that also decolonizes other sites of exception and indistinction for Indigenous people. The rights for Indigenous people cannot be afforded individually but need to recognise and account for Indigenous dispossession, state domination and Indigenous sovereign claims.
Murphy, JR, Grant, E & Anthony, T 2018, 'Indigenous courthouse and courtroom design in Australia: Case studies, design paradigms and the issue of cultural agency' in The Handbook of Contemporary Indigenous Architecture, Springer, Germany, pp. 495-525.View/Download from: UTS OPUS or Publisher's site
If it is true that public buildings “…reflect the beliefs, priorities and aspirations of a people” (Powell 1995: ix), what do Australia’s public buildings say about Australians? More specifically, what does the design of Australia’s courthouses say about the beliefs, priorities, aspirations and agency of Australian people and in particular, Aboriginal and Torres Strait Islander peoples?
Anthony, T 2017, 'Are Indigenous Australians the Most Incarcerated People in the World?' in Watson, J (ed), The Conversation Yearbook 2017: 50 Articles That Informed Public Debate, Melbourne University Press, Melbourne.
In a time of heightened hostility towards experts, academics and scientists, the 2017 collection of the best Conversation articles and essays. This article examines the assertion that Indigenous Australians are the most incarcerated people in the world to find that in fact...
Anthony, T 2016, 'Deaths in Custody: 25 years after the royal commission, we've gone backwards' in Watson, J (ed), 50 Standout articles from Australia's top thinkers, Melbourne University Press, Melbourne, pp. 91-94.View/Download from: UTS OPUS
This week marks 25 years since the Royal Commission into Aboriginal Deaths in Custody tabled its national report. With five volumes of research, investigative accounts of 99 deaths in custody, and 339 recommendations, the report was meant to be a blueprint for reducing the disproportionate incarceration of Indigenous Australians and deaths in custody. But a quarter of a century later, the situation is actually worse.
Anthony, T 2016, 'The Limits of Reconciliation in Criminal Sentencing' in Maddison, S, Clark, T & Costa, RD (eds), The Limits of Settler Colonial Reconciliation, Springer, Singapore, pp. 249-269.View/Download from: UTS OPUS or Publisher's site
Indigenous people in Australia are vastly over-represented in police
custody and prisons. This paper argues that there is a judicial responsibility to take
notice of systemic and prejudicial post-colonial circumstances affecting Indigenous
people to reduce imprisonment. This may represent a step on the path to reconciliation
in the legal system. By eschewing this reconciliatory gesture, Australian
courts are complicit in the over-representation of Indigenous people in prisons. By
contrast, Canadian judiciaries and legislatures have taken notice of the systemic
disadvantage imposed by the legal system and broader colonial society on First
Nations people and have sought to promote non-prison sentences for Aboriginal
people. But is it enough for Australian courts to adopt the Canadian approach? This
chapter draws on the ideas of Alfred (Response, responsibility and renewal:
Canada’s truth and reconciliation journey. Aboriginal Healing Foundation, Ottawa:
179–187, 2009) that reconciliation absolves and entrenches colonial injustice by
maintaining the dominance of postcolonial jurisdictions, processes and criminogenic
assumptions. Resurgence, restitution and regeneration concepts that Alfred
introduces as counterpoints to reconciliation, are essential for breaking down the
postcolonial structures that subordinate Indigenous people. In the legal system,
measures to privilege Indigenous perspectives and knowledges through Indigenous
sentencing courts and Indigenous community pre-sentence reports challenge the
whiteness of legal discourse and process. However, they are not a substitute for the
resurgence of Indigenous governance and ongoing jurisdictional claims that push
the limits of reconciliatory gestures in criminal sentencing.
Anthony, T & Marchetti, E 2016, 'Sentencing Indigenous Offenders in Canada, Australia, and New Zealand' in Tonry, M (ed), Oxford Handbooks Online: Criminology and Criminal Justice, Oxford University Press, UK, pp. 1-30.View/Download from: UTS OPUS or Publisher's site
In common law countries that have been colonized, the colonized peoples are overrepresented in criminal justice statistics and in rates of incarceration. Sentencing laws and court processes have, for some time, undergone changes to reduce or address the continuing rise of indigenous over-incarceration. This essay focuses on three colonized common law countries: Canada, Australia, and New Zealand, in examining what legal strategies have been used to transform judicial reasoning and practice to take into account the particular experiences and circumstances of indigenous offenders. Whether these changes have improved the situation in practice is explored in this essay. The essay concludes by examining what role and responsibilities judicial officers should have in administering justice for peoples who have been, and continue to be, dispossessed of their culture, laws, and language by the process of colonization, and suggests directions for future research.
Anthony, T & Tranter, K 2016, 'Car Crimes and Cultural Imagination' in Rafter, N & Brown, M (eds), Oxford Research Encyclopedia: Criminology and Criminal Justice, Oxford University Press, UK, pp. 1-26.View/Download from: UTS OPUS or Publisher's site
The car and crime become entrenched in the cultural imagination with the widely circulated images of the bullet-hole-ravaged Ford V8 that Bonnie (Parker) and Clyde (Barrow) were in when they were killed by Texan and Louisianan police in 1934. This couple of outlaws (and their gang) had kept newspaper readers enthralled and appalled as they robbed, murdered, and kidnapped throughout the Midwest since 1932. The scope of their activities and their success in evading authorities, along with their crimes, which included many vehicle thefts, were facilitated by the mobility of the car. Before Bonnie and Clyde, car crime in the public consciousness comprised images of the foolish and antisocial behavior of the well-to-do car-owning elite. After Bonnie and Clyde, the famous image of their death car and the celebrity-making image of Bonnie as the archetypical gangster moll with cigar and revolver leaning over a stolen car, linked in the cultural imagination crime and cars as everyday through a visceral mix of bodies, sex, and violence.
In particular, the visceral imaginings of car crime after Bonnie and Clyde separated into four locations. All involved, to certain degree, bodies, sex, and violence, but distinct contexts and meanings can be identified. The first location is the imaging of car crime itself; of risky use of the car—speeding, dangerous driving, racing, drink driving—actions evidenced by carnage on the roads. There have emerged two frames for this location. The first is the serious and deadly context of the usually male driver fueled by “combustion masculinity” taking irresponsible risks with bloody consequences. The second is the humorous, over-the-top risky, subversive, and illegal car-based activities, a frame tapped into by television shows like Top Gear (Klein, 2002–2015) and Bush Mechanics (Batty, 2001) and manifest in the car chase trope. The second location is the car as a crime scene. From JFK’s assassination in a Lincoln convertible, to the car as s...
Anthony, T 2014, 'Criminal Justice Issues' in Behrendt, L (ed), The Laws of Australia: Aborigines and Torres Strait Islanders, Thomson Reuters.
Anthony, T 2014, 'In the matter of Djappari (Re Tuckiar)  FNCA 1: Commentary' in Douglas, R. (ed), Australian Feminist Judgments: Righting and Rewriting Law, Hart Publishing, Oxford, pp. 437-441.
Anthony, T & van Rijswijk, HM 2012, 'Parental 'Consent' to Child Removal in Stolen Generations Cases' in Kirkby, D (ed), Past Law, Present Histories, The Australian National University, Canberra, pp. 193-208.View/Download from: UTS OPUS
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.View/Download from: UTS OPUS
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, 'Blackstone's Commentaries on Colonialism: Australian Judicial Interpretations' in Wilfred Prest (ed), Blackstone and his Commentaries Biography, Law, History, Hart, Oxford, pp. 129-150.
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.View/Download from: UTS OPUS
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.View/Download from: UTS OPUS
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 individuals 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.
Steele, LR & Anthony, T 2017, 'Sentencing of Indigenous Australians with Disability: Revisiting the High Court Decision of Bugmy', XXXVth International Congress on Law and Mental Health, Prague, Czech Republic.
Anthony, T 2014, 'Keynote address: Critical Research and Institutional Violence: the institutionalisation of crime statistics', 8th Annual Australian and New Zealand Critical Criminology Conference, Monash University, Melbourne, pp. 13-33.View/Download from: UTS OPUS
Prison is a form of ‘white on black’ institutional violence for Indigenous Australians (Blagg 2008). This violence can manifest physically through deaths in custody, psychologically through isolation and separation from relationships, or collectively by threatening community cohesiveness by removing Indigenous members. The violence is also symbolic: it asserts the dominance of non-Indigenous punitive agendas over Indigenous peoples and their regulatory systems, and extending white forms of control originating in the Protectionist era (Hogg 2001). Research of criminologists that seeks to rationalise the over-incarceration of Indigenous Australians by attributing it to the neutral application of laws to patterns of Indigenous offending provides a juridical basis for the incarceration that conceals institutional biases. It presents imprisonment as based on objective and evidence-based legal decisions that overlooks both subjective factors in sentencing and decisions in policing. This paper argues that this research is flawed in its methodology and assumptions. Such flaws contribute to the institutional violence by reinforcing notions of Indigenous criminality and the righteousness of Anglo-Australia’s punitive response.
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, pp. 1-5.
Anthony, T 2012, 'Northern Territory Intervention and Indigenous Criminalisation: Implications for Pre-trial and Post-sentencing', Uluru Criminal Law Conference, Legalwise Seminars, Uluru, pp. 1-17.
This paper addresses extended police powers under the Northern Territory National Emergency Response Act 2007 (Cth) and related measures.The key issues are: •Police widening and broadening: Federal authorities, taskforce Themis and Territory Police
•Police powers and prosecution discretion
•Case study: the rise and rise of prosecuting driving offences and alcohol related offences
•Net results: Incarceration and the new era in corrections
•Consequences for the courts and legal profession
van Rijswijk, HM & Anthony, T 2012, 'An Element of Bluff or Deception: Parental Consent and State Control in the Stolen Generations Cases', Program of 2012 International Conference on Law and Society: Sociolegal Conversations Across a Sea of Islands, 2012 International Conference on Law and Society: Sociolegal Conversations Across a Sea of Islands, 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', Justice in the Round: Perspectives from Custom and Culture, Rights, and Dispute Resolution, University of Waikato, Hamilton, New Zealand.
Anthony, T 2010, 'Crime issues since the Northern Territory intervention: The drive to convict', Australian and New Zealand Society of Criminology, Australia and New Zealand Society of Criminology, 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 âdrive unregistered / unlicensed / uninsuredâ. This âdriving trifectaâ 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 2010, 'The Drive to Criminalise: Consequences of the Northern Territory Intervention', Australian and New Zealand Critical Criminology Abstracts, The Australian and New Zealand Critical Criminology Conference, Sydney Law School, Faculty of Law, University of Sydney.
Anthony, T & van Rijswijk, HM 2010, 'Historical and Ahistorical Narratives: drawing boundaries of 'consent' in Stolen Generations Cases', Owning the Past: Whose past? Whose present?, 29th Annual Australian and New Zealand Law and History Conference, Melbourne University.
Anthony, T 2009, 'From Paradise to Prison: Palm Island', University of Sydney Macleay Museum Public Lecture, Macleay Museum.
Anthony, T 2009, 'Indigenous issues in the lasw curricula: moving beyond neo-colonial legal education', UTS Faculty of Law Teaching & Learning Seminar series, UTS.
Anthony, T 2009, 'Indigenous recognition in criminal sentencing and the withering of the community', Australia and New Zealand Society of Criminology, Perth.
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 Resisters as if the Death in Custody Never Occured', Australia and New Zealand Critical Criminology Conference, Critical Criminology Conference, School of Politcial and Social Inquiry, Monash University, Monash University, pp. 6-18.View/Download from: UTS OPUS
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 Mulrunjis 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, 'Sentencing indigenous 'rioters' as if the death in custody never occurred', Australia & New Zealand Critical Criminology Conference 2009, Monash University, Melbourne.
Anthony, T 2008, 'Developments in Sentencing Principles for Indigenous Offenders: Comparisons and Complexities', Critical Criminology Conference, University of New South Wales.
Anthony, T 2008, 'Late-Modern Developments in Sentencing Principles for Indigenous Offenders:Beyond David Garland's framework', Proceedings of the 2nd Australian and New Zealand Critical Criminology Conference, Crime & justice Research Network, Australian and New Zealand Critical Criminology Conference, The Crime and Justice Research Network, University Of New South Wales, pp. 2-29.
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.
Anthony, T 2008, 'The Northern Territory Intervention & Stolen Wages', Law & Society Conference University of Sydney.
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.
Anthony, T 2007, 'History wars and implications for native title', Express, SUPRA Postgraduate Conference, Sydney University Postgraduate Representative Association, University of Sydney, pp. 16-17.
Anthony, T 2007, 'Legal Remedies for Stolen Indigenous Wages', Faculty of Law Lunch Seminar, University of Sydney.
Anthony, T 2009, 'Recent Policy Applications of Indigenous Difference', AIATSIS, Canberra.
Anthony, T 2007, 'Sir William Blackstone's feudal force in colonial settings', William Blackstone(1723-1780):Life, Thought, Influence Conference, University of Adelaide.
Anthony, T 2007, 'Stolen wages: the long wait for Northern Territory Indigenous workers', Koori Centre Lectures, University of Sydney.
Anthony, T 2006, 'Comparative Analysis and the Sociology of Law', Reading Julius Stone Intersections Series, University of Sydney, Faculty of Law.
Anthony, T 2006, 'Evidence in Native Title Cases and the History Wars', SUPRA Postgraduate Conference, University of Sydney.
Anthony, T 2006, 'Land Rights and Indigenous Legal Identities', Law and Society Conference, University of Wollongong.
Anthony, T 2006, 'New Directions in Indigenous Justice', Sociology Seminar series, Macquarie University.
Anthony, T 2006, 'Reconciliation and Conciliation: the irreconcilable dilemma of the 1965 Equal Wage Case for Aboriginal Station Workersâ', Labour History Symposium: Working Life, Enterprise and Arbitration, University of Sydney.
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.
Anthony, T 2003, 'Aboriginal labour and feudal law', 22nd Annual Conference of the Australian and New Zealand Law and History Society, Brisbane.
Anthony, T 2003, 'Frontier Conflict and Aboriginal Crime', Postgraduate Arts Conference, University of Sydney.
Anthony, T 2003, 'Undressing Keith Windschuttle: frontier crime and myths', Intercultural Studies Annual Conference,, University of Newcastle.
Jordan, K, Anthony, T, Walsh, T & Markham, F 2018, JOINT RESPONSE TO THE DELOITTE REVIEW OF THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY, Canberra, Australia.View/Download from: UTS OPUS or Publisher's site
This brief seeks to provide an evidence base for the development of
law and policy by highlighting some key issues concerning the sentencing
of Indigenous offenders. It first outlines the statutory frameworks that are in place in Australia and New Zealand. Second, it discusses the development of common law principles relating to the sentencing of Indigenous offenders, focusing on the relevance of Indigenous status and Indigenous laws (often called customary law) and cultural practices. Finally, it reports on the results of statistical studies of sentencing of Indigenous offenders.
Anthony, T, Caruana, C, Hollingworth, S, Maher, S, Michaux, A, Mildon, R, Naish, K, Rogers, G & Spalding, K Royal Commission into Institutional Responses to Child Sexual Abuse 2015, Report of the Parenting Research Centre for the Royal Commission into Institutional Responses to Child Sexual Abuse: Implementation of recommendations arising from previous inquiries of relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse, pp. 1-182, Sydney.View/Download from: UTS OPUS
The Letters Patent direct the Royal Commission into Institutional Responses to Child Sexual Abuse to avoid unnecessary duplication and consider the adequacy of changed law, policy, practices and systems over time. Accordingly, this report evaluates the extent to which 288 recommendations from 67 inquiries selected by the Royal Commission had been implemented, and the possible factors that determined, contributed to, or were barriers to successful implementation.
The research aimed to answer three questions:
1. To what extent were previous inquiry recommendations, nominated by the Royal Commission, implemented?
2. What were the factors that determined or contributed to, or were barriers to, the successful implementation of recommendations?
3. Was there any relationship between these factors?
The project had three components: a scoping review of the methods of previous implementation evaluations, methodology design and the research itself. An exploration of the impact, or effectiveness, of the implementation of recommendations was beyond the scope of this project.
Anthony, T & Blagg, H Criminology Research Advisory Council 2012, Addressing the "crime Problem" of the Northern Territory Intervention: Alternate pathways to regulate minor driving offences in remote Indigenous communities, pp. 1-90, Australia.View/Download from: UTS OPUS
This study examines the incidence of Indigenous driving offending in the Northern Territory since 2006 and assesses the effectiveness of law enforcement in addressing this crime. It seeks to ascertain alternative forms of regulating driver safety and whether they are better suited to Indigenous communities. In doing so, it identifies some of the major reasons for offending. It is particularly concerned with driving offences that have increased dramatically since 2006, including driving unlicensed and driving unregistered and uninsured cars.
O'Brien, R 2015, 'Journal of Indigenous Policy', Jumbunna Indigenous House of Learning, Sydney, Australia.
An edition of the Journal of Indigenous Policy curating the submissions of the National Aboriginal and Torres Strait Islander Legal Services between 2010 and 2014.
NSW Aboriginal Legal Service
Victorian Aboriginal Legal Service
Australasian Institute of Judicial Administration
Five Bridges Aboriginal and Torres Strait Islander Community Justice Group, Qld
Tangentyere Council, Alice Springs