Drawing on the Australian experience, Jennifer Balint and Nesam McMillan from the University of Melbourne critically reflect on the possibilities of bringing together transitional justice concepts and practices with settler colonial realities.

‘#AnotherDayInTheColony ‘is a hashtag used by Indigenous scholars and activists to describe the everyday realities of continuing to live within the settler colonial structure of Australia. As Munanjahli and South Sea Islander academic Professor Chelsea Watego explains in her powerful recent book by the same name, this hashtag names the violence that is “not just of the physical kind, but the emotional, spiritual, economic, intellectual and cultural kind – the conditions that enable and ensure we, as a people, are the most incarcerated, most uneducated, most diseased, most impoverished and most likely to end our own lives” (p 8). It speaks to the enduring and structural nature of colonial harm, which is “built into the structure” of law, politics, and nationhood in Australia. Significantly, as First Nations activists and scholars have shown, it speaks to the tension of achieving justice within the continuing unjust structures of the settler colonial state, which, in the case of Australia, have not recognised the enduring sovereignty of Indigenous peoples.

That it is structures that require redress has been highlighted by many First Nations peoples, activists and scholars. It was what was articulated so strongly in the Uluru Statement in May 2017:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem.

This Statement calls for constitutional and structural change, including a First Nations Voice (The Voice is a project for an independent, representative advisory body for First Nations people) to Parliament to be enshrined in the Australian Constitution and a Makarrata Commission. The need for structural change is also reflected in the push for a Treaty in our Australian state of Victoria, with the establishment of the First Peoples’ Assembly of Victoria in 2018 and the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Treaty Act). A key component of the Victorian process has been the establishment of a truth commission, the Yoorrook Justice Commission. The commission heard first from Victorian First Nations elders and is now starting hearings into the systemic injustices of the child protection and criminal justice systems in the state.

Settler colonial harms, past, present, and ongoing, for a long time remained outside the scope of transitional justice, offered as the dominant framework for redress of state crime. While transitional justice approaches have at times recognised the necessity of political, economic, and legal reform following experiences of mass harm, there had been insufficient attention to structural change. In our earlier collaborative work with others, through bringing transitional justice into conversation with settler colonialism, we explored a more robust theory of transitional justice that would be able to consider justice for past and ongoing colonial harms.

The strength of transitional justice is that it promises a “holistic” program of redress comprising trials, apologies, truth processes, and reparations. It promises a comprehensive accounting of the past in the service of building a new, shared communal future. As opposed to the welfare-based agendas found in some settler colonial contexts, transitional justice foregrounds injustice and the need for justice processes. Transitional justice thus frames the harms as injustices to be redressed, rather than problems to be solved.

It is because of these possibilities that we have reflected on the productive possibilities of bringing together transitional justice concepts and practices with settler colonial realities and theories to think about what new ways of thinking and acting might result. The focus is not to directly apply transitional justice to settler colonial harms, but to consider what it means for both transitional justice frameworks and settler colonial situations to bring them into relation: what each may offer the other.

As part of this conceptual work, we recognise the limits of transitional justice frameworks. This includes their presentist focus (on recent conflicts) and their tendency to regard the past, present, and future as separate and linear. This approach makes it difficult to appreciate the enduring impact of ‘past’ events, including those supposedly historical events – such as colonialism – that are indeed ongoing in places like Australia. As is widely acknowledged, transitional justice mechanisms are often nation-building projects. They seek to establish the legitimacy of the new state rather than reflecting on whether the nation state structure and institutional frameworks need to be called into question. In centering the (colonial) state, they place Indigenous sovereignty outside, rather than seek to create a relationship sovereign to sovereign, and fail to draw on Indigenous frameworks and knowledges. In the context of the ongoing harm and violence that many of these institutions continue to impact on Indigenous peoples (in the context of the police, for example, see Amanda Porter, and on law, see Larissa Behrendt), it is important to challenge the focus of transitional justice on strengthening existing institutions. In all these ways, globally-framed transitional justice frameworks may not offer an appropriate response to colonial and settler colonial harms, and they may indeed reflect the colonial history of many international frameworks and the problematic imaginaries they are based on.

Crucially, transitional justice frameworks may also fail to recognise and respond to injustice and harm as structural. The focus in transitional justice is largely on physical violence over socio-economic, distributive, and structural harm, and on individual harms. This means that transitional justice can fail to capture the entirety of violence and harm experienced: this has been a critique of a range of transitional justice proceedings, and there is increasing recognition of this. Recent transitional justice proceedings are more attentive to both the structural and individual, for example the Yoorrook Justice Commission in the Australian state of Victoria. The terms of reference (Letters Patent) of the Yoorrook Justice Commission note its objectives as being concerned with both the collective and individual impact of “Systemic Injustice” and its causes and consequences. It is focused on both the past, its impacts in the present, and the possibilities for the future: these include Treaty, self-determination, and state accountability. This approach moves us away from a narrow state law-based approach, to an expansive one based in First Nations’ knowledges and practices.

This is critically important in relation to settler colonialism, or as Watego and Dr Lilla Watson reframe it, colonial settlerism (p xiii). The colonialism in which settlers came to stay, and never left (see Patrick Wolfe), can be understood as a structural injustice. Colonialism is a ‘normalised’ and ongoing form of harm. It is inherent to and shapes all institutional formations, social, political, and legal. The way in which this has been hidden, and normalised within the state, is itself a form of violence. How it is then made visible, and appreciable, as inherent to the possibilities that remain, is critical (on the appreciability of harm, see Judith Butler). The work of this has been taken up largely by First Nations scholars who draw attention to the structures and have worked to challenge them.

As a whole, non-Indigenous legal orders have generally failed to offer a sufficiently just response to this structural injustice. With its presentist orientation and progressive anchoring, international criminal law can function to recognise colonial harm at the same time as confining it to an untouchable and non-justiciable past. Aboriginal people have been calling on settler Australian law for a long time. National settler colonial legal orders, as Eualeyai and Kamillaroi scholar Professor Larissa Behrendt shows in relation to Anglo Australian law, cannot sufficiently register experiences of genocide that Indigenous communities know to be true. In a seminal legal case in the 1990s, this was articulated clearly by Aboriginal Embassy activists as a legal case, that genocide is not just past, but continuing. While past genocide was recognised by the court, ongoing genocide was not.

Yet, there may be still possibilities that emerge from a continued calling on these legal orders to respond to colonial harm. It is the record that is created through law, that in its remaining, can inform future means of justice. This was observed in the case brought by elderly Kenyans against the British government for the abuse they were subjected to by the British colonial state, which relied on historical records that recorded the harm and asserted sovereignty. The ‘reactivation’ of these records, as we also saw in our collaborative work on the Minutes of Evidence project, can also open up new conversations that bring the past into the present. The verbatim theatre production, Coranderrk: We Will Show the Country, comprised the ‘minutes of evidence’ (transcript) of the 1881 Coranderrk Parliamentary Inquiry into the Coranderrk Station that heard testimony from Aboriginal and non-Aboriginal witnesses (alongside letters and petitions from the time) about unjust conditions and a vision for collaboration and change, and it enabled the creation of spaces, in theatres and in classrooms, that centred conversations of justice and injustice.

In our collaborative work, we have worked with others to explore these new conversations and possibilities of future just relations that might be found in creating “meeting points” between the past and the present, between different areas of research and practice and – importantly – between different legal orders. We have considered what it means to “keep hold” of justice, within unjust structures. Structural injustice requires structural solutions. In Victoria, there are initiatives underway to establish the foundations for a treaty or treaties that would serve as a framework for more just relations between these different legal orders (on treaties and agreements elsewhere, see Agreements Treaties and Negotiated Settlements). This sits alongside the work of the Yoorrook Justice Commission, as a truth-telling process also unfolding in this place. These initiatives intersect with the traditional concerns of transitional justice scholarship and practice, but they will define their own course and reflect the longstanding and continual actions and activism of local communities.

This piece references the collaborative work of the Minutes of Evidence project as a whole, and key publications we were involved in with Julie Evans and Mark McMillan (Keeping Hold and Justice and “Rethinking Transitional Justice, Redressing Indigenous Harm”). Thank you to Julie Evans for her comments on an earlier draft.  

Authors

Dr Jennifer Balint is Professor in Socio-Legal Studies, Criminology, and Head of School, School of Social and Political Sciences at the University of Melbourne. Her most recent book is Keeping Hold of Justice: Encounters between Law and Colonialism (University of Michigan Press 2020, with Julie Evans, Mark McMillan and Nesam McMillan), arising out of the collaborative Minutes of Evidence Project. She is the author of Genocide, State Crime and the Law: In the Name of the State (Routledge 2012), and has worked extensively on accountability for state crime and access to justice.

Dr Nesam McMillan is a Senior Lecturer in Criminology in the School of Social and Political Sciences at the University of Melbourne. She enjoys collaborative and practice-engaged teaching and research and is particularly interested in questions of community and responsibility in relation to harm. With Jennifer Balint, Julie Evans and Mark McMillan, she co-authored Keeping Hold of Justice: Encounters between Law and Colonialism (University of Michigan Press 2020), arising out of the collaborative Minutes of Evidence Project. She is also the author of Imagining the International: Crime, Justice, and the Promise of Community (Stanford University Press 2020).​