Unconscious Racism: Scrutinizing Judicial Reasoning in 'Stolen Generation' Cases

Abstract

Like other western legal systems, Australian law is based on notions of the rule of law, justice and equality. Legal formalistic ideology would have us believe that as long as the law as it appears 'on the books' is applied equally for all, justice will prevail. For Indigenous Australian people, formal equality means that their claims for land, compensation and the recognition of their culture must be assessed through the eyes of white judges in white courts. Even when those judges strive to apply the law equally, they will inevitably be applying Eurocentric beliefs and values. In two recent significant cases concerning Indigenous claims for their removal from their families as children, those beliefs and values have tended to invalidate not only the legal claims themselves, but also aspects of the Indigenous culture. This article argues that the formal application of legal principles to these claims by Australian courts and judges leads to the exclusion of Indigenous narratives, which ultimately can be construed as evidence of unconscious racism. Charles Lawrence's cultural meaning test is used to critique the reasoning of the judges in two leading Australian cases concerning the 'stolen generation' and to expose the unconscious racism that still exists in the Australian liberal legal system.