Dr Trish Luker joined UTS Law in 2012 as a Chancellor’s Postdoctoral Research Fellow. Her research is primarily concerned with how, and on what basis, legal decisions are made. It focuses on two areas: analysis of legal decision-making and court processes; and evidentiary assessment, including theories of the documentary form in law.
Trish has a number of research projects that reflect her research interests and expertise. She is a leader of the Australian Feminist Judgments Project (ARC DP120102375), which investigates the possibility of feminist approaches to legal decision-making. In the Court as Archive project (ARC DP130101954), she has made important contributions to understanding the archival responsibilities of courts. Her current project (with Katherine Biber), called What is a Document? (ARC DP160100414) investigates the challenges to evidence law brought about by the shift to the digital age.
Trish is a Convenor of the UTS Law Feminist Legal Research Group. She is the President of the Law and Society Association of Australia and New Zealand and a management committee member of the Law, Literature and Humanities Association of Australasia.
Previously, Trish has worked as an author, editor and communications professional at the Victorian Law Reform Commission, the Federal Court of Australia, the State Library of New South Wales and the Tenants Union of Victoria.
- President, Law and Society Association of Australia and New Zealand (LSAANZ)
- Member, Law, Literature & the Humanities Association of Australasia (LLH)
- Feminist legal theory
- Socio-legal studies
- Law and history
- Critical discourse theory
- Documentary theory
Feminist legal theory
Law, language and documentation
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.
Luker, T 2017, 'Decolonising Archives: Indigenous Challenges to Record Keeping in 'Reconciling' Settler Colonial States', Australian Feminist Studies, vol. 32, no. 91-92, pp. 108-125.View/Download from: Publisher's site
Feminist and queer engagements with archives and archival theory
have emphasised the affective dimensions of archival processes,
particularly the meaning and place of archives when they concern
marginalised people and intimate lives. In settler colonial contexts
such as Australia and Canada, these ways of thinking about
archives have been influential in responding to histories of
removal, institutionalisation and abuse of Indigenous children.
This article investigates the importance of feminist engagements
with archives and historiography in 'reconciling' settler colonial
states, with attention to sites of archival contention. Feminist
modes of history that foreground affect in the formation of public
culture need to take account of divergent views regarding the
propriety of archival records in 'reconciling' settler colonial states.
Indigenous peoples' mistrust of state and institutional archives,
demands for control of archives and legal actions for destruction
of records, as well as establishment of autonomous archives, all
contribute to the important and fraught process of decolonising
settler colonial archives.
Luker, T 2016, 'Reading the Archive: Historians as Expert Witnesses', Flinders Law Journal, vol. 18, no. 2, pp. 241-267.
In a substantial study into the relationship between law and history in Australian jurisprudence, Curthoys, Genovese and Reilly found that when historians appear as expert witnesses in Australian courts, they have often not been well received. While it is acknowledged that historians have particular skills in identifying relevant sources in archives, Australian courts have generally been resistant to the idea that they bring special interpretative skills, because lawyers and judges believe that the hermeneutic processes involved in the interpretation of historical documents is a skill in which they are already well versed.
A number of developments have occurred in relation to the role of historians as experts in the decade since this study. For example, the Federal Court of Australia has introduced procedural rules for expert conferences and for the production of concurrent evidence of expert witnesses. In this article, I will discuss the legal reception of expert opinion evidence from historians through an investigation of what has happened in the period since the mid-2000s. This research suggests that the collision that occurred between historians and the law during the 1990s subsequently resulted in an impasse between the disciplines of law and history. Legal counsel are disinclined to call historians as expert witnesses; historians themselves have resiled from the role of witnesses, and have been critical of courts' failure to recognise the particular value of their skills in reading an archive. The article will report on empirical research conducted into the role of historians as expert witnesses in Australia and will include reference to transnational research conducted in New Zealand and Canada.
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.
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.View/Download from: Publisher's site
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.
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 workersÊ¼ 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»youthismÊ¼ 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 passÃ©. 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.
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.
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 motherï½s informed consent to the removal of her son. Drawing on Derridaï½s 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.
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.
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.
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.
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.
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, 'Intention and Iterability in Cubillo v Commonwealth', Journal of Australian Studies, vol. 28, no. 84, pp. 35-41.
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.
In archival theory and practice, sentencing is the process of identifying and classifying information, potentially resulting in its destruction. It is a surprising homonym to judicial pronouncement of criminal punishment, despite the emotive association with censorship and book burning. In archival science, as in law, sentencing is the result of evaluative judgment. In the case of archival science, these judgments about historical and social value, institutional accountability and resourcing have a powerful impact on social memory because they determine which 'creators, functions, and activities in society will be represented in archives
Luker, T 2019, 'Women into print: Feminist presses in Australia' in Arrow, M & Woollacott, A (eds), Everyday Revolutions: Remaking Gender, Sexuality and Culture in 1970s Australia, ANU Press, Canberra, pp. 121-138.View/Download from: Publisher's site
The freedom of the press belongs to those who control the press' was one of the enduring slogans of the second-wave women's movement. Reflecting the belief that the printed word could incite social change, feminists asserted their position in the public sphere of publishing, as authors, in print production and through the establishment of feminist presses. Reclaiming and celebrating women's writing was a defining characteristic of second-wave feminism, and feminist literary and cultural historians took up the literature of Australian women writers from the nineteenth and early to mid-twentieth century.
The Australian second-wave women's movement emphasised cultural forms; it was a catalyst for feminist writing, in the form of journalism, autobiography, short fiction, novels, poetry and plays, as well as feminist history, political theory, gender and sexuality studies. These texts, in turn, form a body of cultural memory that informs how feminism marks its own past, providing a narrative for individual and collective remembering.
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, T, 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. 1-18.
Luker, T, 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. 19-40.
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.
When was the last time you were asked to sign something and did you stop to think how the strange squiggly mark you make on a page could be used?
The signature is a performative act, crucial to the law's way of knowing, but it's also been used as a tool of oppression.
In this episode of History Lab we hear from a boy who was stolen, the man who took him away and the judge who was asked to decide if a mother's thumbprint was a sign of consent.
From the Yirrkala Bark Petitions in 1963 to the Uluru Statement from the Heart in 2017 Aboriginal people have been reclaiming this marker of individual identity to represent the many and speak back to an empire.