van Rijswijk, H --- "Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary" [2014] UTSLRS 30; (2014) 40(1) Australian Feminist Law Journal 117

Last Updated: 2 June 2017

‘Archiving The Northern Territory Intervention in Law, and in the Literary Counter-Imaginary’

Honni van Rijswijk^[*]

‘This is where it begins as far as I am concerned. This is the quest to regain sovereignty over my own brain.’
Alexis Wright, The Swan Book (2013)

Abstract: This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, through simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which law’s violence masquerades as law’s care. I seek to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive—on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of example, I examine Alexis Wright’s most recent novel, The Swan Book (2013), which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.

Introduction

This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and in Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, and simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. Earlier iterations of this figure were the occasion for the regulation of indigenous people through the various state Aborigines Protection Acts, producing significant acts of state violence whose harms have been documented in the Bringing Them Home report,^[1] and in cases at common law.^[2] On the 21st June 2007, this figure was revived to animate neoliberal technologies, activating a new kind of governmentality, when the Howard Government announced the Northern Territory Intervention. The Intervention was implemented through a set of laws that permitted the seizure of local community land leases by the federal government, the deployment of the army into Northern Territory communities, the use of extra police powers, and the quarantining of welfare benefits.^[3] This regime ended in 2012, when it was replaced by a similar set of laws implemented by the Labor Government.^[4]

This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which state law’s violence masquerades as law’s care.^[5] The essay seeks to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive—on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of an example of this practice, the essay examines Alexis Wright’s most recent novel, The Swan Book (2013)^[6], which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.

As an archive, law presents itself as an authoritative source of knowledge about history, politics and society. But law’s archive not only records social and political life—it also creates social and political realities. Law’s archive is a source of authority, power and control, and is an active and productive domain. For Foucault, the archive is not just ‘that whole mass of texts that belong to a single discursive [in this case, legal] formation,’ but should also be thought of as the ‘law of what can be said, the system that governs the appearance of statements.’^[7] The archive is an authoritative domain—it is a place in which law is constituted. Derrida emphasizes the violence inherent in the archive.^[8] He places emphasis on the etymology of ‘archive’ in the Greek arkhe, as a concept entailing ‘commandment’: the law can be found ‘there where men and gods command, there where authority, social order are exercised, in this place from which order is given’.^[9] It is the archons (‘men and gods’) who have the power to interpret the archive.^[10] Law’s archive determines the possibilities and limitations of ‘legitimate’ legal violence; it determines forms of legal and social relation, and forms of possible lives. In Australia, law’s archival violence occurs within the context of colonial power/knowledge, and it occurs ‘at the home’ of the archons—or, as Derrida puts it, ‘there’ in the liminal space where the letter of law originates, ‘at the place of originary and structural breakdown of ... memory’.^[11] The key, then, to understanding the authority of both archive and law, lies in what is remembered and recorded, and especially in understanding how this information is represented. The archive that belongs to state law excludes, subordinates and suppresses indigenous laws, and indigenous harms, at the same time that it suppresses the stories, figures and representations that would challenge law’s archive.
However, law’s archive as a powerful site of ‘commandment’ does not exist in isolation. Despite the fact that state law asserts exclusive jurisdiction over the adjudication of violence and harm, as will be described below, in reality state law exists within the context of other archives, genres and authorities—in particular, within the context of indigenous authorities and archives. The problem is that these other authorities and archives are generally not visible within state law’s archive, except to be coded and subordinated as ‘non-law’, and so their challenge to law’s authority is disguised. We need new ways of reading the archive of state law, and of thematising the relation of law’s archive to indigenous laws and authorities. These ways of making visible the boundaries and limitations of state law’s archive, and making visible, too, the wider context of law’s competing authorities, challenge the violence of state law’s claim to exclusive jurisdiction. This article reads law’s archive in relation to the work of Alexis Wright, whose work reveals state law’s archive to be a specific genre that is constituted by particular practices of representation, existing within a particular, contingent domain. This focus on representation and its connection to power/authority opens up the possibility of an intervention into law’s archive, by making visible law’s genre and logics, and by re-contextualising them. In The Swan Book, Wright re-situates the state legal archive within the wider context of competing authorities and laws, and demonstrates the significance of aesthetic practices to these processes. It is in this context of re-writing legal genres that The Swan Book challenges the figure of the ‘abused Aboriginal child’, providing a counter-archive to law’s. This is a counter-archival practice that, it is hoped, might challenge law’s archive by making visible its silences and omissions—and by opening up new legal imaginaries.

Part One: Law’s Archive of the Northern Territory Intervention

The occasion for the Intervention was the publication of the Little Children are Sacred Report (2007),^[12] which followed an Inquiry commissioned by the Territory’s Inquiries Act. The Board of Inquiry’s task was to, among other things, ‘Examine the extent, nature and factors contributing to sexual abuse of Aboriginal children, with a particular focus on unreported incidents of such abuse,’ and to ‘Consider how the NT Government can help support communities to effectively prevent and tackle child sexual abuse.’^[13] The subsequent report did not express the problem as an ‘emergency,’ but it did find that child sexual abuse was an issue that required urgent action. A number of earlier reports had also documented child abuse and violence against women as being significant problems in indigenous communities in the Northern Territory—communities that were also dealing with poverty, poor health, alcoholism and racism.^[14] However, the Northern Territory Intervention and Stronger Futures legislation introduced measures that went well beyond the issue of child abuse, to affect land rights, welfare benefits, and access to services. The Inquiry’s 97 recommendations included an emphasis on community consultation, family support services, education, employment and housing but most of these recommendations were not implemented in the subsequent legislation. The Intervention has been the subject of criticism from a number of human rights organisations, including the United Nations.^[15] It is also worth noting that levels of the sexual abuse of children are in fact higher in several 
other Australian jurisdictions than in the Northern Territory.^[16]

In their recent, detailed analysis of the Intervention, Jon Altman and Susie Russell note that ‘it is impossible to say’ whether the results of the Intervention have been positive, negative or mixed.^[17] They argue that ‘the Intervention had no foundational, evidence-based policy logic, and no baseline against which to measure improvements,’^[18] and that, despite ‘extraordinary levels of monitoring, review and evaluation ... the absence of an overarching evaluation strategy has resulted in a fragmented and confused approach.’^[19] In fact, they conclude that the evaluations of the Intervention themselves seem to act as another state technique for the administration of Aboriginal people.^[20]
The Northern Territory National Emergency Response Act does not refer to the child. Section 5 of the Northern Territory National Emergency Response Act states that the aim of the Act ‘is to improve the wellbeing of certain communities in the Northern Territory.’ The only reference to children in the Stronger Futures Act is Section 4, which simply states: ‘The object of this Act is to support Aboriginal people in the Northern Territory to live strong, independent lives, where communities, families and children are safe and healthy.’ Section 3 describes the Act as ‘contain[ing] a number of measures aimed at building stronger futures for Aboriginal people in the Northern Territory.’ Significantly, although the language of the laws refer to Aboriginal welfare and well-being, the legislation affects matters ranging from land to income management to police powers, issues that are essentially about power, and which negatively affect the ability of communities to govern themselves. A narrative of harm-prevention is being used to justify the legislative response that provides for, simultaneously, both the withdrawal of state services to indigenous communities that non-indigenous Australians take for granted, and the re-introduction of extra-violent techniques of colonial governance.

Part Two: Law’s Archive as Genre

Law’s archive as ‘commandment’ suggests that the genre of law is a certain kind of aggressive realism. The legal archive is a domain in which social relations and inequalities are structured and adjudicated, and in which law asserts access to a reality that law alone can adjudicate and resolve. In public debates and in the second-reading speeches behind the Northern Territory Intervention and Stronger Futures legislation, an imaginary of harm is described and organized through the figure of the ‘abused Aboriginal child,’ and a tale of indigenous violence is told, which the state asserts it can resolve.^[21] Law’s control of the means of representation here is key: law’s jurisdiction arises on the basis of law’s assertion that its violent jurisdiction over indigenous people is justified by its adjudication of indigenous violence. The legislation specifically excludes the operation of the Commonwealth’s own Racial Discrimination Act 1975,^[22] and the international obligations that gave rise to it. The instrumentalisation of harm to children naturalizes a world-view in which suspending the Racial Discrimination Act and sending in the army to indigenous communities appears justified. Claiming a role merely in the adjudication of harms taking place in indigenous communities, law asserts its jurisdiction and thereby inflicts harms on those communities, and in doing so, disguises its own violence.

In the Northern Territory Intervention legislation, the discriminatory treatment of indigenous Northern Territory subjects occurs within the context of the supposed universality of state law. Manderson argues that the tension of this paradox is held through a particular temporality, which he describes as the ‘not yet’ of law:^[23] the rule of law ‘still holds out a promise of equality to be looked forward to once Aboriginal people become normal, and live in normal suburbs with normal jobs and a normal economy.’ ^[24] However, in the meantime, ‘equality is postponed and a state of exception is invoked to justify measures of extraordinary severity .... ^[25] An example of the expansion of state powers following the legislation is the Australian Crime Commission (ACC), which was initially given the authority over ‘serious and organized crime’.^[26] Under legislation associated with the Northern Territory Intervention, the ACC’s powers were extended to ‘serious violence or child abuse committed by or against, or involving, an Indigenous person.’^[27] As Manderson points out, this is an extraordinary expansion of the ACC’s powers, into an area—multigenerational child abuse—in which the ACC has no history or expertise. Moreover, ‘it now places Indigenous violence and Indigenous child abuse in an entirely different category from the same offences committed by any other person in Australia.’^[28] The implication is that ‘there is ... something inherently Indigenous about child abuse ... or something peculiarly threatening about Indigenous violence of any kind’.^[29] The real suffering documented in Little Children Are Sacred is explained not as an effect of poverty, structural racism or continuing colonization, or of the intergenerational effects of past traumas caused by the state, documented in Bringing Them Home, but as a sex crime, a perverse family romance.

While certain rights are suspended in the Intervention and Stronger Futures schemes, law is at the same time instrumentalised by the state to inflict significant violence on indigenous people—in this sense, the Intervention and Stronger Futures are domains of heightened legality, rather than domains in which law has been suspended. The ‘here and now’ of the Intervention is saturated by law and legal violence, which is partly justified by the ‘not yet’ narrative of future, possible equality. As Irene Watson argues, past and present violence against Aboriginal people has been read as ‘beneficial,’ as acts of ‘saving them from themselves’.^[30] The rule of law is not uniform or all-encompassing: law selectively regulates and exercises power across different populations, and the state instrumentalises both law and violence in particular contexts. The theory of law as universal only makes sense where state law’s archive is viewed as the entire archive of legal authority. We therefore need techniques to become aware of the particularity of state law’s assertions of authority, of its ever-changing and mobile strategies. One way of fulfilling this responsibility and responsiveness is through the development of critical reading practices that focus on the role of the representation of violence in the production of sovereignties and legalities.
Law’s claim to an exclusive role in adjudicating violence has been central to the production of law’s authority in modernity, and central, too, to modernist politico-philosophical analyses of law’s authority. The significance of the relation between legal authority and violence is crucial to understanding contemporary scenes of violence. Law’s assertion of authority over indigenous people, using the occasion of violence, gets to the heart of the role of law in the modern state. Practices of representation—the narratives, figures and aesthetics that express these assertions—are key to producing law’s authority here. These techniques of law and state—the relation of violence to the constitution of authority, and the significance of representation to this relation—have been particularly heightened since the beginning of the twentieth century. For Walter Benjamin, most law comes from the kind of genocidal exclusion seen in the Intervention and Stronger Futures legislation, and such violence is required for the continuing formation of the state: ‘All violence as a means is either lawmaking or law-preserving’, and is ‘implicated in the problematic nature of law itself.^[31] Law asserts an exclusive role in the adjudication of violence, thereby establishing its own jurisdiction, and thereby either ‘making’ or ‘preserving’ itself. In Derrida’s re-reading of Benjamin’s essay, he emphasizes that representational practice is central to the assertion of law’s jurisdictions—such acts are ‘said to found law or state’.^[32] In order to interrupt law’s assertion of jurisdiction, we need ways to encounter and intervene in the complexity of legal imaginaries of violence and harm—accounts that are not available through law’s own archive.

Thomas Keenan’s understanding of reading as critical practice is helpful here. Keenan suggests that reading is the articulation between theory and practice, the join between interpretation and transformation.^[33] According to Keenan, it is important to hold onto the potential of this gap, rather than focus on transformation as a goal. To hold the space of articulation is to own the position of being inside a system of representation, and to own the reader’s complicity in it, as well as to do the work of changing this position:

[b]y ‘reading’ I mean our exposure to the singularity of a text, something that cannot be organized in advance, whose complexities cannot be settled or decided by ‘theories’ or the more or less mechanical application of programs. Reading, in this sense, is what happens when we cannot apply the rules. This means that reading is an experience of responsibility, but that responsibility is not a moment of security or cognitive certainty.^[34]
Keenan figures reading along the lines of Derrida’s analysis of decision in his essay ‘Force of Law.’ For Derrida, decision is ‘acting in the light of non-knowledge and non-rule’.^[35] Decisions take place when we do not know what to do. To figure reading as decision, and as decisive, is to understand it as an activity that is pragmatic but not reducible to the application of knowledge. To do so is to intervene directly in the action of law: it means to critique law’s practice of ‘rushing in’ and asserting violent jurisdiction, upon the occasion of perceived violence. The alternative is a careful standing back, a re-reading of the situation—a critical pause in the gap, which allows an examination of the space and moment when law asserts jurisdiction through harms.

In the next Part, I examine the work of Alexis Wright, arguing that it provides opportunities for encountering the legal archive, and of imagining a counter-archive to law’s. I examine in particular the significance of genre to Wright’s work in producing a counter-archive to the archives of law and state. The Swan Book shares with Wright’s earlier novel Carpentaria^[36] an interest in the relationship between law, authority and violence in contemporary Australia—and both books are interested in the significance of practices of representation to these relations.^[37] Carpentaria begins ‘A nation chants but we know your story already’.^[38] In both Carpentaria and The Swan Book, Wright undoes the ‘knowing’ of white Australia by reading the archive of state law as a genre, and by putting law’s archive in its proper place, contextualizing it alongside and against indigenous legal genres. The reader is presented with a history of the representation of the Australian nation in ways that re-situate and subjugate western legalities and representational practices. Wright does this by showing that the state law of Australia is contingent, historically specific, and only one authority within a system of multiple laws and authorities. Wright’s most radical project is the assertion not only of an alternative claim to truth from state law and from dominant cultural narratives, but a challenge to the modes in which those truth claims are made.^[39] In The Swan Book, Wright forces the reader to re-imagine the harm of the Northern Territory Intervention and Stronger Futures legislation by re-contextualising the trauma figure within the western representational tradition, and also by placing her in the context of indigenous representational histories and practices. In Part 4, I examine this trauma figure as represented in the dystopic world of The Swan Book, arguing that the novel provides a domain in which to critique, encounter and re-vision the figure of the ‘abused Aboriginal child’, and to thereby counter the archive of legal harm that arises through this figure.

Part 3: The Swan Book as a Counter-Archival Reading of Genre

The Swan Book is a dystopic history of our future, a story of relentless, interconnected harms: it is 2088, and the Northern Territory Intervention has been in place for a hundred years. The novel is focalised through an indigenous teenage girl, Oblivion Ethylene, nicknamed ‘Oblivia’. She is described as a child-woman who is only half socialized. She is mute: she has refused to speak since being gang-raped by a group of petrol-sniffing youths, members of her own community. She is part of an Aboriginal community that has been displaced onto a swamp full of rusted boats and surrounded by government razorwire—‘the world’s most unknown detention camp’.^[40] Incarceration is one of the main tropes of the novel.^[41] Entire indigenous communities are encircled by the Army and imprisoned, the army ‘being used in this country to intervene and control the will, mind and soul of the Aboriginal people’.^[42] Oblivia has spent a decade sleeping inside the ‘bowels of an old eucalyptus tree’,^[43] where she fled after the rape, forgotten by her family. In an effort to stay sane, Oblivia befriends thousands of black swans who have come to live in the swamp, drawn there by their own law.
Oblivia evokes the ‘abused Aboriginal child’ of the Northern Territory Intervention, and the novel intervenes in the archive of this figure in a number of ways: by placing her within the context of Aboriginal narratives and laws; by re-working western epics and practices of representation that are based on the figure of the raped child/woman; and by connecting the harm of sexual violence to the harms of economic inequality, environmental damage and the denial of indigenous sovereignty. In legal archives and their supplements, representations of the harms of the Northern Territory Intervention and of Stronger Futures, of rape, poverty and racism, are all heavily mediated. These representations are the effects of the histories of western and colonial representational practices. The Swan Book, like Carpentaria before it, is a counter-imaginary that challenges these dominant representations and their histories.

Wright has said that she uses literature ‘to try and create a truer replica of reality’.^[44] She does this in part through a self-conscious use of genre. Her books move from realism to allegory to western myth to political satire, and back to naturalism—often in one paragraph. This is a world in which the child Oblivia sleeps for ten years, like ‘Rip van Winkle’,^[45] and in which a pet monkey is abandoned after ‘predicting colossal wars that started to frighten the life out of everyone’.^[46] The dystopic genre is evoked through the violent upending of the nation’s weather patterns: the weather has ‘flipped sides, swapping southern weather with that of the north’;^[47] and black swans have migrated to the north of Australia, where they have never lived before. Refugees are led from a European mountaintop by a holy white swan, who whispers ‘a greeting of good day and good fortune’.^[48] The swan guides them to the water and across the seas, but it is only Bella Donna who survives the journey and walks into the Australian bush, to find Oblivia.

The Swan Book thematises genre in legal contexts, causing the reader to become aware of the legal text as genre, and undermining the reader’s assumption that law is a genre that necessarily grants access to truth, and which necessarily takes place within a realist register. One of the key interventions of The Swan Book, (as in Carpentaria before it), is to question what is known as ‘Dreamtime’, and the way in which this form has been interpreted within Western law and literature, as culture or myth, rather than as the source of legal and social authority. These novels disrupt the association of the Dreamtime with the irrational and non-real on the one hand, and legal/dominant western forms with the rational and real, on the other. Questions of harm and authority are registered in both fantastical and realist modes. The virus that has invaded Oblivia’s mind forces upon her the voices of people she has known, the voices of dying Europeans, of swans, and of bogan white Australia:

My virus sings with a special slow drawling voice, like an Australian with closed door syndrome—just singing its heart out about cricket or football without a piece of thought ... .^[49]
Bella Donna dies and haunts Oblivia, speaking directly into her mind, and Oblivia is also haunted by the Harbour Master, an ‘old wulukulu ... Aboriginal man with an Asian heritage’.^[50] These are the voices of ghosts, but they also intercede in a realist register. Through irony and humour, Wright stretches the rules of genre until they break; heaping one genre on top of another until the reader has to be aware they are reading and interpreting through particular genres, and the effects of different genres in creating legal and social realities.

The common law has not been a domain that has produced proper encounters between indigenous and non-indigenous authorities—law’s archive only documents failed encounters. At best, indigenous law is recognized as having been supported by a sovereignty that once existed, but which has no authority now:

Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.^[51]
State law’s treatment of indigenous sovereignty as finite, and as being subordinate to the white state, has arisen mainly in the context of the regulation of native title, which ‘[i]n a variety of ways ... refuses a plurality of sovereignty, law and community’.^[52] Stewart Motha locates this refusal in Mabo,^[53] in which, he says, ‘a singular, unassailable (non-justiciable) sovereign ‘event’ is proposed as the foundation of Australian law and society’.^[54] This foundational moment was followed in subsequent native title cases, which confirmed ‘that there can be only one normative system that gives rise to rights and interests’.^[55] Shaunnagh Dorsett and Shaun McVeigh suggest that following the Yorta Yorta case, it seems clear that ‘[d]espite the use of the phrase 'traditional laws and customs', there can only be one legal system’.^[56] Following this failed encounter between indigenous and non-indigenous laws, indigenous authority becomes coded not as law, but as belonging to another domain: ‘[w]hat was ‘law’, post-sovereignty is now custom’.^[57]

Wright’s novels challenge the ways in which indigenous law has been interpreted as a form of myth, or as a marker of custom or ‘culture’, ^[58] rather than as a source of authority and judgment. Her work provides a counter-archive to law’s, documenting the plurality of indigenous and non-indigenous legal relations operating within Australian territory. The reader is forced to re-examine mainstream perceptions of the status of indigenous laws and Dreaming—and to question the assumption that state law, and cultural realism, are the genres of truth. In The Swan Book, Australian state law becomes merely one of many intersecting laws and authorities within Australian territory. In The Swan Book, land and the natural world have agency and authority. The swans move around the country, ‘following stories for country that had been always known to them’ because ‘Swans had Law too,’^[59] and they have their own ‘Law scriptures’.^[60] The tree that is Oblivia’s refuge is ‘a sacred tree where all the stories of the swamp were stored like doctrines of Law left by the spiritual ancestors’.^[61] The landscape is permeated by ‘law spirits’ who ‘scrutinize’ the country.^[62] The country is animated by ‘law music’, brought up by ‘old powerful chants’.^[63] Not only is the land, in Christine Black’s terms, a ‘source of law’,^[64] but it is also a grieving subject actively responding to the harms of state: ‘It was land screaming with all of its life ....’^[65] This thick description of intersecting authorities and laws produces a lawscape of Australia that is plural and postnational.

Wright’s representations of indigenous authority and law show indigenous sovereignties continuing in spite of the white nation, and in spite, too, of state law’s assertion of exclusive jurisdiction. Carpentaria ends with an ambivalent apocalypse, which sees the re-emergence of the Waanyi nation’s Dreaming. The white town is extinguished, reduced to ‘an extraordinary floating island of rubbish’,^[66] but life, law and culture continue—the destruction is also ‘a journey of creation’.^[67] The violent history of colonisation is shown to be subject to another authority and western law passes away, leaving the Waanyi nation in sovereign rule, providing hope for the survival of the land and its people. It is the white Australian state that is revealed to have been exceptional, contingent and which is, finally, ‘extinguished,’ cleverly reversing the logic that has been employed in native title cases to narrate and subjugate indigenous sovereignties.

The apocalypse at the end of Carpentaria is ultimately a good thing, bringing fresh laws and hope to the nation, but The Swan Book is a lot bleaker. In The Swan Book, unlike Carpentaria, there is no resolution—no final authority judges, or resolves harms that have been suffered during the novel. By the end, everything seems lost: Oblivia moves back to the swamp where she originated, holding the broken body of a last remaining swan. Time passes, and she appears as a haunting figure, glimpsed from time to time. The novel ends with this haunting:

There is a really big story of that ghost place: a really deadly love story about a girl who has a virus lover living in some lolly pink prairie house in her brain—that made the world seem too large and jittery for her, and it stuffed up her relationships with her own people, and made her unsociable, but they say that she loved swans all the same. ... You see swans sometimes, but not around this place. ... Swans might come back. Who knows what madness will be calling them in the end?
The Swan Book does not offer redemption; it closes with a still-apocalyptic world, and just the possibility of the call of ‘madness’. Carpentaria was published just before the Northern Territory Intervention commenced, and The Swan Book was published in 2013, after the Intervention and Stronger Futures had been in place for six years. In The Swan Book, the technologies of colonisation of the past 300 years have enacted a violence that is daily and accumulative; the post-apocalytic world is continuous with our current world and its legislative regimes, including the Northern Territory Intervention, are intact, only more developed and horrific. In a world in which Aboriginal people have experienced exile and incarceration, and where the state fights for sovereignty over their minds, apocalypse is less a surreal figure than a way of marking devastation within a realist register.

Wright’s wider project of re-writing the Australian legal imaginary provides the context for Wright’s counter-archive of the child figure in The Swan Book. Wright’s counter-intervention against the representation of the ‘abused Aboriginal child’ occurs in the context of law’s archive being re-contextualized and re-oriented as a genre—state law’s archive is placed in relation to indigenous laws and sovereignties; state law is shown to be only one authority among many. Through these practices, Wright makes visible the contingency of law’s claim to exclusive jurisdiction over Australian territory and subjects—and makes visible, specifically, the contingency of the jurisdiction that state law asserts over indigenous subjects through the Northern Territory Intervention and in the Stronger Futures legislation, using the occasion of the ‘abused Aboriginal child’. Law asserts this jurisdiction through its claim to access a certain ‘reality’, which it narrates as child abuse. Wright’s novels challenge state law’s claim to access and adjudicate this reality, this ‘knowing,’ revealing the multiple laws, jurisdictions and sovereignties that in fact operate on Australian territory, and the limitations of law’s archive. In the following Part, I examine the specific narrative that grounds state law’s purported jurisdiction in the Northern Territory Intervention and in Stronger Futures—its claim to adjudicate violence and harm arising through the figure of the ‘abused Aboriginal child’. The Swan Book provides a counter-archive of this figure, and questions of genre are key to reading Oblivia as a counter-archival figure.

Part 4: Wright’s Counter-Archival Figure of the Child

Oblivia evokes the long history of state violence that has been committed against colonised and racialised groups through the figures of the raped child and the raped woman.^[68] In the imaginary driving the Northern Territory Intervention and Stronger Futures, children are legible as law’s occasion, but are not legible in themselves, for themselves. The difficulty and charged nature of this figure—the ways in which she has been overdetermined by a long legacy of western representational practices—is thematised in the novel by Oblivia’s muteness. Oblivia is deliberately silent—she could speak if she wanted to, but always refuses. Oblivia becomes mute at the moment of her rape, her ‘last spoken word ... left orbiting unfinished, astray, irredeemable and forsaken’.^[69] She is a frightening figure for her community: ‘a girl perhaps best suited dead ... returning like a bad smell from the grave’.^[70] Given the legal and political history of the figure of the ‘abused Aboriginal child,’ it is impossible for Oblivia to tell the story of her rape without it being read as a narrative of community or familial dysfunction. So Oblivia does not tell the story of her rape as such. Oblivia’s rape is never represented as a scene; the sexual violence committed against her is never resolved. Oblivia’s story does not fall within the genre of a trauma or healing narrative, in which rupture is remedied. Rather, Wright tells a different story, in a very different genre—a dystopic history of the future, a narrative of interconnecting environmental, political and legal harms—as all these interconnected political and legal harms are needed to explain Oblivia’s suffering.

Oblivia’s refusal to speak reminds us of the significance of silence. Spivak’s essay on the possibility of the postcolonial subject speaking and being heard begins:

Here is a woman who tried to be decisive in extremis. She ‘spoke’, but women did not, do not, ‘hear’ her. Thus she can be defined as a ‘subaltern’—a person without lines of social mobility.^[71]
Spivak writes that ‘the subaltern cannot speak’ and that ‘The subaltern as female cannot be heard or read’.^[72] There can be ‘no scene of speaking’, no discursive space for the ‘utterance’ of the subaltern woman.^[73] As a ‘little Aboriginal kid’,^[74] Oblivia holds a position of representational impossibility within dominant Australia law and culture—she is an instrumentalised figure, not legible on her own terms. The proper response to this silence is not to reclaim or rediscover Oblivia’s lost voice. The strategy of recovery, Spivak argues, merely solidifies subalterity:

Who the hell wants to protect subalternity? Only extremely reactionary, dubious anthropologistic museumizers. No activist wants to keep the subaltern in the space of difference ... You don’t give the subaltern voice. You work for the bloody subaltern, you work against subalternity.^[75]

Instead of a task of recovery, Spivak argues that the task of reading the postcolonial archive involves the work of ‘measuring silences’.^[76] This can only be done through a deeper investigation of the archive, applying a focus that is wider than the subaltern figure herself, taking in the practices of representation of the archive itself, and of the archive’s history. Spivak has suggested ‘unlearning’ as an important trope to describe the work of the critical scholar. This means re-reading the entire archive in which the figure is embedded: to offer a counter-archive to those archives of state and state law, to recover that which has been ‘lost in an institutional textuality at the archaic origin’^[77].
The Swan Book tells the story of the Intervention and its harms from Oblivia’s position of representational impossibility, and instead of telling the story of a rape, generates a whole futuristic, dystopic world in order to fully represent the harms suffered, as well as the responsibilities these harms demand. It is not that the sexual violence inflicted on Oblivia is less important than these other harms, but that these harms must be represented if Oblivia’s suffering is to make sense: ‘like any other long-standing conflict around the world, one act of violation becomes a story of another’.^[78] To tell the story of an isolated rape would not only demonstrate a misunderstanding of the nature of harms—particularly the interrelation of sexual violence with colonialism, poverty and structure racism—it would also reinforce law’s habit of instrumentalising sexual violence in law’s own violence against indigenous subjects. It would reinforce the practice of law’s violent intervention being justified on the basis of the story of one indigenous subject harming another.

The novel opens with Oblivia addressing the reader:

Upstairs in my brain, there lives this kind of cut snake virus in its doll’s house. ... The crazy virus just sits there on the couch and keeps a good old qui vive out the window for intruders. It ignores all of the eviction notices stacked on the door.^[79]

Oblivia has survived rape, environmental devastation, and continuing colonization, only to struggle to ‘regain sovereignty over [her] own brain’.^[80] The plot of the novel is based on her ‘quest’ to regain this sovereignty. The attack on her mind’s sovereignty is figured as a ‘virus’—interconnected, infectious, mutable, and uncontainable—in contrast to the structural aesthetic of the psychoanalytic trauma paradigm, in which suffering is contained within the individual. The Swan Book leaves the psychoanalytic model of trauma behind. Oblivia cannot ‘work through’ to healing; there has never been a ‘normality’ capable of being interrupted, and there is no normality that can be returned to. The ‘virus’ that drives the plot of the novel never leaves Oblivia; it continuously threatens to take over her mind and her life. It is vicious, impersonal and relentless:

... [it] manufactures really dangerous ideas as arsenal, and if it sees a white flag unfurling, it fires missiles from a bazooka through the window into the flat, space, field or whatever else you want to call life.^[81]

Trauma, for Oblivia, is not the intrusion of a past event into the present, which needs to be, and is capable of being, resolved, returning Oblivia to an integrated self.
Oblivia’s harm is connected to the problems of representation, authority and sovereignty, not explained as an event, ‘rape’, that can be resolved. The Swan Book documents the interconnected harms that lie behind Oblivia’s rape—the failure of western law to properly encounter indigenous law, the violence of the Intervention and Stronger Futures, and the desecration of the environment—until we return to Oblivia at the end, who may or may not have died, and who cannot address the reader any longer. The representation of harms goes well beyond individual and psychosocial accounts of loss; beyond, even, human frameworks of harm. To understand Oblivia’s suffering means to mourn land and animals, laws, language and culture; and also to understand that land, animals and laws mourn. The argument of The Swan Book is that these harms cannot be isolated: the rape of women and children is connected to state practices of incarceration and punishment, to poverty, abuse of the rule of law, and to forced assimilation. The failure of law to register the interconnectedness of these harms in law’s archive is part of law’s violence. The violence of the Northern Territory Intervention arises through law’s act of isolating harms in its assertion of jurisdiction—which allows perceived harm to the indigenous child to become the occasion of law’s violent jurisdiction over indigenous people, without law recording in its archive the roles of state violence, poverty and structural racism in the experiences of suffering by actual indigenous children. The Swan Book is a counter-intervention into this representational world of the Northern Territory Intervention. The Swan Book argues that these harms cannot be isolated. To properly understand the rape of Aboriginal children means to examine law’s violence and its role in these harms—to challenge law’s archive and to re-contextualise law’s archive in relation to other authorities and other harms. To properly hear about sexual violence means to hear about land and sovereignty and the loss of language and culture, of the history of western representation and the place of rape narratives in these cultural traditions, and the ways in which rape stories have been used to justify colonial enterprises. The alternative is silence. Oblivia, in her silence, is a strong symbol of what must change in representational practices, and also in reader’s habits of understanding—a demand for listeners to train themselves to understand. The Swan Book is not asking for harms to be witnessed—its imaginary demands a different kind of reading and relation from witnessing, one that involves undoing. The archive of Australian state law asserts itself as a powerful site of ‘commandment’, but this assertion of exclusive and violence jurisdiction is undone when the archive is put in its proper place, which means placing state law within the context of Aboriginal archives, genres and authorities.

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^[*] Honni van Rijsiwjk is a Senior Lecturer at UTS:Law and co-convenor of the Law School’s Law and Culture Group; [e-mail]. The author wishes to thank the editors of the AFLJ and the two anonymous referees for their comments on this paper.
^[1] Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children From Their Families (Sydney: HREOC, 1997) (‘Bringing Them Home’). Examples of earlier regulatory regimes include: the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), s 9, 11, 13; Aborigines Protection Act 1886 (Vic); Aborigines Act 1890 (Vic); Aborigines Protection Act 1890 (WA); Aborigines Protection Act 1909 (NSW); Northern Territory Aboriginals Act 1910 (SA) 1910; Aborigines Act 1911 (SA).
^[2] The Federal Court denied claims for compensation in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, and in Cubillo v The Commonwealth [No 2] [2001] FCA 887; 112 FCR 1 (‘Cubillo’). South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 (‘Lampard-Trevorrow’), where the court dismissed the State’s appeal against the decision of Gray J in Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 (‘Trevorrow’), has been the only successful Stolen Generations case. See van Rijswijk Honni and Anthony Thalia ‘Can Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010)’ (2012) Melbourne University Law Review 36 at 618.
^[3] Northern Territory National Emergency Response Act 2007 (Cth) No. 129 (NTNERA); Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) No. 128; Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) No. 130’ Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern 
Territory National Emergency Response and Other Measures) Act 2007 (Cth) No. 128; Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007 (Cth) No. 126 and 
Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007 (Cth) No. 127. I use the phrase ‘the Northern Territory Intervention’ or ‘the Intervention’ to refer to this regime.
^[4] When the Northern Territory Intervention came to the end of its five-year period in July 2012, it was
immediately replaced by the Stronger Futures in the Northern Territory Act 2012 (Cth) (No. 100) and related laws: Stronger Futures in the Northern Territory Act 2013 (Cth) (No. 184); Social Security Legislation Amendment Act 2012 (Cth) (No 102). These laws will operate for a 
ten-year period: Stronger Futures s 118. Stronger Futures is broken up into a number of Parts that administer aspects of the lives of Aboriginal citizens in the Northern Territory. ‘Tackling alcohol abuse’ (Part 2) is aimed at ‘reducing alcohol-related harm to those Aboriginal people’; ‘Land reform’ (Part 3), is ‘aimed at facilitating the granting of rights and interests, and promoting economic development’; ‘Food security’ (Part 4), and some miscellaneous matters (Part 5) are also covered. The legislation includes income management schemes, and provisions for the suspension of parents’ welfare payments if children’s attendance rate at school is considered unacceptable (Social Security Legislation Amendment Act 2012 (Cth) (No 102) Sch 2.). I use the term ‘Stronger Futures’ to refer to this regime.
^[5] The phrase ‘state law’ is used to distinguish the particular legal system of the Australian government from the multiple indigenous legal systems and relations that also operate within Australian territories. The critical focus of this article falls on state law and its archive.
^[6] Wright Alexis The Swan Book Giramondo Artarmon 2013.
^[7] Foucault Michel ‘The Statement and the Archive’ in The Archaeology of Knowledge and the Discourse on Language trans. A. M. Sheridan Smith Pantheon New York 1972, p 129.
^[8] Derrida Jacques Archive Fever: A Freudian Impression trans. Eric Prenowitz University of Chicago Press Chicago 1999 at 12.
^[9] As above at 9.
^[10] Derrida above note 8 at 10.
^[11] Derrida above note 8 at 14.
^[12] Wild R and Anderson P Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Child Sexual Abuse Northern Territory Government Darwin 2007.
^[13] As above at 4.
^[14] Cunneen Chris and Libesman Terri A Review of International Models for Indigenous Child Protection, A report prepared for the NSW Department of Community Services (2002); Human Rights and Equal Opportunities Commission (HREOC) Ending Violence and Abuse in Aboriginal and Torres Strait Islander Communities — Key Issues: An Overview Paper of Research and Findings by the Human Rights and Equal Opportunities Commission, 2001–2006 (2006) HREOC Sydney; NSW Aboriginal Child Sexual Assault Taskforce Breaking the Silence: Creating the Future, Addressing Child Sexual Assault in Aboriginal Communities in NSW (2006) NSW Premier’s Department NSW; Queensland Crime Commission and Queensland Police Service Child Sexual Abuse in Queensland: The Nature and Extent: Volume 1. Project Axis (2000) Brisbane; Gordon S Hallahan K and Henry D Putting the Picture Together, Inquiry into the Response by Government Agencies into Complaints of Family Violence and Child Abuse in Aboriginal Communities (2002) Department of the Premier and Cabinet Western Australia.
^[15] See for example Amnesty International ‘Discriminatory aspects of the NTER yet to be addressed’ (Sydney, 4 February 2009) at http://www.amnesty.org.au/news/comments/20169 (last visited 15 April 2014); Intervention Rollback Action Group, ‘Rollback the Intervention’ (Alice Springs, 2009) at http://rollbacktheintervention.wordpress.com (last visited 15 April 2014); Anaya J ‘Observations on the Northern Territory Emergency Response in Australia’ (2010) Report by the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. For a feminist analysis of the Intervention, and an historical contextualisation of its provisions in comparison to the earlier Aborigines Protection Acts, see Watson Nicole ‘The Northern Territory Emergency Response—Has It Really Improved the Lives of Aboriginal Women and Children?’ (2011) 35 Australian Feminist Law Journal 147.
^[16] See Australian Institute for Health and Welfare, Australia’s Health, No. 10 (2006) Government Printer Canberra, cited in Manderson Desmond ‘Not Yet: Aboriginal People and the deferral of the Rule of Law’ ARENA Journal (2008) no. 29/30 222 at 224.
^[17] Altman Jon and Russell Susie ‘Too much ‘Dreaming’: Evaluations of the Northern Territory National Emergency Response Intervention 2007–2012’ (2012) issue 3 Evidence Base <journal.anzsog.edu.au>, ISSN 1838-9422
The Australia and New Zealand School of Government. 3.
^[18] As above at 18.
^[19] Altman and Russell above note 17 at 1.
^[20] Altman and Russell above note 17 at 1. See also Jon Altman’s detailed analysis of the Intervention, spanning over 150 pages, in which he documents results that include an increase in violence, malnutrition and truancy in particular communities following the Intervention: Altman Jon ‘Arguing the Intervention’ [2013] JlIndigP 3; (2013) 14 Journal of Indigenous Policy 1, particularly at 79.
^[21] For example in the Second Reading Speech of the Stronger Futures Bill, Jenny Macklin made several references to children’s interests and welfare as justifications for the Bill, stating that ‘With increased visibility of the extent of child neglect in the Northern Territory must come our reaffirmed commitment to do all that we can to ensure that children are safe.’ (The Hon Jenny Macklin MP ‘Stronger futures in the Northern Territory Bill 2011—Second reading speech 23 November 2011 Parliament House Canberra).
^[22] Racial Discrimination Act 1975 (Cth) No. 52.
^[23] Manderson above note 16 at 224.
^[24] Manderson above note 16 at 262.
^[25] Manderson above note 16 at 262.
^[26] Australian Crime Commission Establishment Act 2002 (Cth) No. 125 Sched. 1 subs. 4 (1) cited in Manderson above note 16 at 244.
^[27] Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) No. 128 Sched. 2 
Part 1 subs. 4 (1); Australian Crime Commission Establishment Act 2002 (Cth) No. 125 s. 4.
^[28] Manderson above note 16 at 244.
^[29] Manderson above note 16 at 244.
^[30] Watson Irene ‘Aboriginality and the Violence of Colonialism’ (2009) 8(1) Borderlands 1. See also Watson Irene ‘In the Northern Territory Intervention, What is Saved or Rescued and at What Cost?’ (2009) 15(2) Cultural Studies Review 45.
^[31] Benjamin Walter Critique of Violence, Selected Writings; Volume 1;1913 – 1926 (2006) The Belknap Press of Harvard University Press London at 278. For the original German text see: Benjamin Walter Zur Kritik der Gewalt in Walter Benjamin Gesammelte Schriften vol. II. 1. (1999) Frankfurt am Main.
^[32] Derrida Jacques ‘Force of Law: The Mystical Foundation of Authority’ (1989) 11 Cardozo Law Review 927.
^[33] Keenan Thomas Fables of Responsibility: Aberrations and Predicaments in Ethics and Politics (1997) Stanford University Press Stanford at 1.
^[34] As above.
^[35] Derrida above note 32 at 967; Keenan above note 33 at 7.
^[36] Wright Alexis Carpentaria Giramondo Artarmon 2006.
^[37] For a detailed analysis of Carpentaria’s role in challenging the genre and authority of Australian law, see van Rijswijk Honni ‘Stories of the Nation’s Continuing Past: Responsibility for Historical Injuries in Australian Law and Alexis Wright’s Carpentaria’ (2012) 35(2) UNSWLR 598.
^[38] Wright above note 36 at 1.
^[39] See Ravenscroft Alison ‘Dreaming of Others: Carpentaria and its Critics’ (2010) 16(2) Cultural Studies Review 194.
^[40] Wright above note 6 at 40.
^[41] As at 30 June 2013, the Northern Territory had the highest proportion of Aboriginal and Torres Strait Islander prisoners of any state or territory in Australia (86%): see Australian Bureau of Statistics Prisoners in Australia 2013 http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2013~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics~6 (last checked 15 April 2014).
^[42] Wright above note 6 at 47.
^[43] Wright above note 6 at 2.
^[44] Wright Alexis ‘Politics of Writing’ (2002) 62:2 Southerly 10 at 13-14.
^[45] Wright above note 6 at 7.
^[46] Wright above note 6 at 40.
^[47] Wright above note 6 at 18.
^[48] Wright above note 6 at 28.
^[49] Wright above note 6 at 3.
^[50] Wright above note 6 at 13.
^[51] Yorta Yorta Aboriginal Community v The State of Victoria (2002) HCA 58 para 43 per Gleeson CJ, Gummow and Hayne JJ, emphasis in the original.
^[52] Motha Stewart ‘The Failure of ‘Postcolonial’ sovereignty in Australia’ (2005) 22 Australian Feminist Law Journal 107 at 108.
^[53] Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’).
^[54] Motha above note 52 at 108.
^[55] Motha above note 52 at 108.
^[56] Dorsett Shaunnagh and McVeigh Shaun ‘An Essay on Jurisprudence, and Authority: The High Court of Australia Yorta Yorta (2001) 56 Northern Ireland Legal Quarterly 12.
^[57] As above.
^[58] See Povinelli Elizabeth The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism Duke University Press Durham 2002.
^[59] Wright above note 6 at 86.
^[60] As above.
^[61] Wright above note 6 at 36.
^[62] Wright above note 6 at 40.
^[63] Wright above note 6 at 86.
^[64] Black Christine ‘Maturing Australia through Australian Aboriginal Narrative Law’ (2011) The South Atlantic Quarterly 110:2 347 at 348.
^[65] Wright above note 6 at 328.
^[66] Wright above note 36 at 490.
^[67] Wright above note 36 at 491.
^[68] For feminist analysis of the instrumentalisation of these figures in postcolonial contexts, see for example McClintock Anne ‘No Longer in a Future Heaven: Women and Nationalism in South Africa’ (1991) 15 Transition 104.
^[69] Wright above note 6 at 20.
^[70] Wright above note 6 at 21.
^[71] Spivak Gayatri Chakravorty ‘Can the Subaltern Speak?’ Marxism and the Interpretation of Culture. Ed. Cary Nelson and Lawrence Grossberg University of Illinois Press Urbana 1988 271 at 271.
^[72] As above at 273.
^[73] Spivak above note 69 at 273.
^[74] Wright above note 6 at 2.
^[75] de Kock Leon ‘New Nation Writers Conference in South Africa’ Ariel: A Review of International English Literature 23(3) 1992 p 29 at 31.
^[76] Spivak above note 71 at 286.
^[77] Spivak above note 71 at 303.
^[78] Wright above note 6 at 20.
^[79] Wright above note 6 at 1.
^[80] Wright above note 6 at 4.
^[81] Wright above note 6 at 1.