Between Fact and Fiction:
The Hindmarsh Island 'Affair'
and the Truth about Secrets


Stephen Pritchard

Monash University, Australia

Copyright © 2000 by Stephen Pritchard, all rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. Copyright law, and it may be archived and redistributed in electronic form, provided that the editors are notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the notification of the journal and consent of the author.

  1. The term 'business' is often used to name a broad and diverse range of Australian Aboriginal sacred, ritual, or customary practices and beliefs. As Diane Bell observed in 1988:
  2. In seeking to make plain to whites the importance of their law, Aborigines draw upon an extended work metaphor. The law is termed "business" and is made up of "women's business" and "men's business" . . . . Ritual activity is glossed as "work" and the participants as "workers" and "owners." (531)

    'Women's business' denotes 'traditional' practices or beliefs or, in Bell's words, "the complex of gendered behaviours" (530) understood to be either typical or exclusive to that group or considered the 'province' of women. What this term denotes from region to region varies greatly. Thus, exactly what such a term might mean in any specific context is by no means clear and could only be determined in relation to its context-specific uses. Indeed, recent studies have revealed the ways in which specific forms of 'women's business' have been overlooked or 'mis-recognised,' often by male anthropologists preoccupied with certain forms of 'men's business' or 'models' of Aboriginal society. Preconceptions about what counted as 'legitimate business,' as well as problems relating to gender or cultural exclusivity, may well prevent so-called experts from recognising 'business.'

  3. As a matter relating to a question of knowledge of another culture this has obvious epistemological implications. Feminist anthropology, for example, has done much to demonstrate how knowledge of traditional Aboriginal society has been shaped by the gendered preconceptions of male anthropologists (in general, see Bell). Insofar as such knowledge has implications for the legal, political and social recognition of certain Aboriginal traditions and beliefs, this matter has significant political and ethical implications. Where Aboriginal customs and beliefs depend on non-Aboriginal recognition, as is the case with the current system set up for the registration and protection of sacred 'property' and land, these issues tie together matters of 'representation,' understood both in the sense of a speaking on behalf of and a form of depiction or characterisation, and matters of political and legal right and entitlement. The risks of representation are clear since the 'figuration' of Aboriginal cultures and peoples within the so-called authoritative discourses like anthropology and law not only makes recognition of such cultures and beliefs possible but is also instrumental to such power-knowledge and a condition of possibility for continued colonial dominance.
  4. The Royal Commission Report of the Hindmarsh Island Bridge (1995) investigated allegations concerning the 'fabrication' of certain 'sacred/secret' gender-restricted traditions or beliefs (which came to be known as 'women's business) belonging to the Ngarrindjeri, an Aboriginal tribe or language group from the lower Murray area in South Australia. This 'secret' 'women's business' was claimed to be associated with Hindmarsh Island -- a small, sparsely populated river-bound island at the mouth of the Murray river some 90 kilometers South-east of Adelaide on the southern coast of South Australia. The claim had formed the basis for an application under the Commonwealth Heritage Act to prevent the construction of a bridge from the small coastal town of Goolwa to the island. Thus, the allegation of fabrication brought the application into question and, in June 1995, the South Australian government appointed Iris Stevens royal commissioner to investigate the matter.

  5. Since then, a considerable amount has been written on the subject of the Hindmarsh Island Bridge 'Affair.' It has been the subject of at least three books, numerous journal, magazine and newspaper articles, a Royal Commission inquiry, two Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act (1984) section 10 reports, a legislature review and a recently-passed Commonwealth Act. Unless the threat of defamation and damage curbs further reportage and commentary, the scope and volume of this literature looks set to increase substantially. The legal and political battles centring on the 'Affair' continue to take bizarre twists and turns, leading Sydney Morning Herald writer Debra Jopson to characterise it as "[o]ne of Australia's most extraordinary webs of litigation" (14).
  6. Even before the commissioner handed down her conclusion in support of the charge of 'fabrication,' a Federal Court had quashed the Commonwealth Heritage Act protection order made by the then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner. Tickner had elected not to view the contents of sealed envelopes that formed the central part of the 'women's business' claim, since these were considered sacred and secret and were to be viewed only by authorised women. To overcome this obstacle he had nominated a female staff member to act on his behalf, assess the claim, and report to him. While Tickner was applauded by some for his sensitivity, others, including Justice O'Loughlin of the Federal Court, deemed his actions unacceptable. According to O'Loughlin, if the Aboriginal claimants wished to obtain protection under the Heritage Act "they must be prepared to reveal sufficient about their sites to bring themselves within its umbrella" (Chapman v Minister 126) As far as O'Loughlin was concerned, there was no question that disclosure was necessary to make an application under the Act: "it is essential that the minister have full details of the claims so that he might appropriately consider their efficacy"; the Aboriginal claimants must weigh "up whether the importance of that they attached to the site is so great as to justify disclosing their secrets to the minister" (127).
  7. From the establishment of the commission, it became clear that the 'Affair' had wide-reaching implications, not only for issues relating to the recognition of Aboriginal beliefs and customs, but also for the relationship between politico-legal institutions and issues relating to gender politics, feminism, political correctness, minority rights and media representation of Aborigines. Indeed, the commissioner's conclusion that "the whole claim of 'women's business' from its very inception was a fabrication" (298) fuelled the widespread suspicion that the commission had been set up in response to political objections, concerning the operation of legislation such as the Heritage Act and the Native Title Act (1993), from developers and property owners. Thus, the "Affair' was not only linked to the future of Aboriginal rights and recognition in law and legislature, but also took on political significance as an instance where the government and the courts could set the direction for future claims.

  8. If the Heritage Act protection order and the minister's refusal to view the contents of the 'sealed envelopes' were taken by some as emblematic of the Labour government's 'indulgence' of 'minority interests,' later responses from the media can be seen to 'signal' the changes that brought the 'landslide' victory of the Coalition government and a corresponding change in direction, perhaps even reversal, of legislative and legal approaches to Aboriginal rights. By the end of 1996 the Hindmarsh Bridge Bill, which proposed to relieve the Federal Minister for Aboriginal and Torres Strait Islanders Affairs of all obligations to investigate the Hindmarsh claim, directly linked the future of the 'Affair' to the future of native title and, more particularly, the Federal government's Native Title Amendment Act (1998). In a strange and somewhat perverse reversal, many who had supported the 'women's business' claim and opposed the bridge now face hefty defamation and damages charges issued by the developers. Company owners, Wendy and Tom Chapman, have sought up to $47 million in damages for what they saw as a "conspiracy to ignore their rights"(Jacobs and Gelder 126). As Jacobs and Gelder note, the position of the developers came to be seen as emblematic of a "new social category: 'dispossessed middle Australians'" (126) evoking the marginality of the 'white Australian.'
  9. The conclusion that the 'women's business' claim had been fabricated was reached despite the fact that the 'proponent' women refused to testify or provide evidence and regardless that no one who gave evidence before the commission had any knowledge of what was contained in the 'sealed envelopes,' with the exception of Dr. Deane Fergie, the anthropologist who helped the women lodge their claim, but who had refused to discuss the content of the secrets. One of the central problems the commission had to address, then, was the way to establish the 'truth' about an alleged tradition which by its very nature, was secretive and restricted.
  10. How could the falsity of a secret be established when its protection might require that it be masked in lies? There could be no clear way of establishing whether the absence of evidence for the existence of this tradition testified to its falsity or to its continued and effective practice. If the 'women's business' claim was legitimate, so the argument goes, then Ngarrindjeri law would prohibit disclosure. The absence of the 'proponent' women from the hearings supports this reading, but also meant that discussion at commission hearings was limited to secondary sources, either those who did not believe or had not heard of the tradition. To get around this problem, the commission, on the one hand, attempted to establish grounds for inferences about the content of the 'sealed envelopes' and, on the other, argued that it was not concerned with actual content, but with why and when this tradition had arisen. In the commission's Report, these two parallel arguments are developed in such a way that they become inseparable.

  11. In her conclusion, the commissioner argues that: "[i]f the 'women's business' existed . . . then it would not have been kept totally secret . . ."(298). Where traditional Aboriginal society would tend to judge the truthfulness or legitimacy of the one who speaks on the basis of who it is that speaks, in terms of tribal or family hierarchy, the commissioner demanded that truthfulness be dependent upon the secret itself. As Bell observes:
  12. The respect system [amongst the Ngarrindjeri] sets out the proper way of behaving; it specifies who may know what, when, and in what detail. The code is strictly followed, constantly reinforced, and it is not possible to engage in conversation of any depth or meaning if one does not abide by the rules. They are simple. The elders know. Don't ask. Don't answer back or challenge. Wait to be told. . . . When one is told by an elder, one doesn't question the authority, or the rationality . . . . The justification is the authority of the elder." (1998: 62)

    The concern expressed by the commissioner was not merely a matter of the possibility or plausibility of a 'totally secret secret,' but also, and perhaps primarily, of the possibility of recognising that which is secret, the unsaid. This is where the contrast between Aboriginal and non-Aboriginal knowledge is most clear. For the commissioner, the tradition can only be recognised as legitimate if its secrecy can somehow be revealed or exposed to the commission. This requirement, a symbolic demonstration of the power and authority of the commission, as arbiter, judge and 'truth commission,' demands that recognition be achieved in its own terms. The pursuit of truth in this legal and political context is far more revealing of the problematic way Aboriginal claims are addressed than of any truth about fabrication. Between those who supported and those who opposed the commission's Report, the central point of disagreement was whether or not 'truth' could be established by the commission, given that the claim was only given representation in terms of negative attributes: that which does not exist, is not known or heard of, and that which must not be spoken.

  13. This point about how 'women's business' was represented in the Report highlights my main interests in this essay: the commission's approach to the issue of the sacredness and secrecy of the alleged tradition; the way Aboriginal beliefs and customs were represented by this inquiry; and how the relationship between the authoritativeness and conclusiveness of the commission's findings and the organisation and evaluation of evidence can be read against more general issues concerning (post)colonial politics and the representation and recognition of difference. Read against the backdrop of a history of exclusions and mis-recognitions of Aboriginal societies, customary practices and laws, this absence offers a powerful image of how the authority and conclusiveness of `the law' are founded upon representational practices that 'silence,' exclude and appropriate Aboriginal voices. Like the fiction of terra nullius, the narrative of 'the truth' of the fabrication disguises both the `constructed-ness' of the finding and the extent to which it is premised upon the exclusion and hierarchical ordering of different and competing narratives. Indeed, a juxtaposition of the commission's concerns with disclosure, exposition and the pursuit of truth against the silence of the secret and the absence of the 'proponent' women, not only accentuates the differences between (non-Aboriginal) Australian legal practices and Aboriginal cultural practices, but also powerfully demonstrates the extent to which Aboriginal beliefs and practices are not recognised in their own terms but, rather, are given representation through the terms of 'the law' or 'the commission.' In other words, this case highlights the way silence is constitutive of the singular, totalising voice of the law, its authoritativeness and its conclusiveness.
  14. Obviously, the commission's conclusion could not be reached until all 'relevant' factors had been assessed and evaluated. In fact, this process of differentiation and evaluation is fundamental to the conclusiveness of the findings, in so far as it allows various pieces of evidence to be weighed in relation to each other, so that a 'picture' of the truth can be assembled. The assemblage of 'truth' here warrants consideration, since it draws attention to the relationship between the manner in which 'truth' is demonstrated and 'the truth' itself. In the narrative offered within the Report, truth must be uncovered and distinguished from lies. And yet, this narrative of uncovering, of laying bare, cannot find the truth without simultaneously finding that which is not true: the two must come together. Jacques Derrida observes of the cipher of secrets that one requires a deciphering which, "to make the thing appear uncovered (aperikalytôs), must first find it hidden" ("How to Avoid Speaking" 18). In short, there is no laying bare of the truth that does not depend on a (literary or conceptual) convention of (un)covering:
  15. In attempting to distinguish science from fiction, one finally will resort to the criterion of truth. And in asking oneself "What is truth?" one will come back very quickly, beyond the waystations of adequation or of homoisis, to the notion of unveiling, of revelation, of laying bare what is, such as it is, in its Being. Who will allege then that the Clothes do not put the truth itself onstage? that is, as the possibility of the true as a denuding? (Derrida, Post Card 419)

  16. The way differentiations are made in the commission's Report and in supporting publications like Chris Kenny's "It would be nice if there was some Women's Business" or Ron Brunton's The False Culture Syndrome: The Howard Government and the Commonwealth Hindmarsh Inquiry is suggestive of the assumptions on which their conclusions are based. One of the main distinctions drawn between the evidence for and against fabrication was based on the characterisation of particular individuals or testimonies in terms of their possible political motivation. Kenny's book, for example, offers an in-depth account of his version of the issues and events surrounding the inquiry. But, because of his own 'interested' involvement in the 'affair' he is able to offer far more than a simple description or recapitulation. Kenny was not only a key witness, but was also 'personally' involved in the 'emergence' of practically all the 'dissident' arguments against the 'women's business' claim: he may have 'persuaded' a Ngarrindjeri man, Doug Milera, to offer a 'confession' about the alleged fabrication; on a video tape played at the commission hearing he was heard telling the 'dissident' women how to challenge the claim (Mead 1995). Very little is made of such matters while substantial space is set aside for speculation about the political motivations behind the anti-bridge campaign. Kenny's 'experience,' at the level of its narrativisation and presentation, is little more than a rhetorical construction: a fashioning of the self that reveals the self to be little more than fashioning, a presentation of truth which is an artifice of the artifice-less, in Montaigne's words, a portrayal or the honest self "simple, natural . . . complete and in all my nakedness" (Essays23).
  17. Like the commission report, the force of Kenny's argument seems premised upon an exclusion of other narratives, such as those that suggest possible collusion between certain state and federal politicians, Kenny himself and the 'dissident' women who spoke against the claim. The basis of such an exclusion or evaluation can never itself be brought into question since it provides the ground on which judgement itself is based. On such an assumed ground, the selectiveness of Kenny's argument is paralleled by its narrative style, which often blurs the distinction between what he experienced, what he was told and what is mere speculation. Kenny thus provides a powerful example of the way the authoritativeness of first person narration may rest on mere literary convention, rhetorical clothing that stages the unclothing of truth.
  18. Like the commission, Kenny makes up for his lack of knowledge concerning 'the secret,' and thus the basis of the claim made by the 'proponents', by threading together a variety of narratives, so as to overcome this 'lack' by reconstituting and incorporating it. Not surprisingly, both texts place considerable value on speculative evidence about overheard discussions, private meetings and a whole variety of alleged political associations. This privileging of certain forms of evidence is apparent in Kenny's argument for the fallibility of the 'oral' and 'hearsay' evidence given by supporters of the 'proponents,' such as Betty Fisher, in contrast to the authority of the 'expert' testimony given by anthropologists, Philip Clarke and Philip Jones. It reappears, in inverse form, in his dismissal of the testimonies given by anthropologists Steve Hemming and Deane Fergie, on the grounds that their opinions may be shaped by their political beliefs, while 'hearsay' evidence by others is accepted uncritically. In this manner, Kenny is able to colour his descriptions morally to such an extent that the 'truthfulness' of evidence seems based on character references. The word of the Chapmans, styled by Kenny as a well-intentioned, hard-working couple, is taken against the word of the 'politically motivated' anti-bridge campaigners, just as the word of the 'honest,' church-going 'dissidents' is taken against the word of the 'conspiring' 'proponents.'
  19. Kenny misses the point, then, when he criticises Christine Nicholls because she had not "sought out the proper nouns instead of guessing about the adjectives" (47). In the opposition between 'political interest' and knowledge, or morality and truth, particularly in relation to anthropological knowledge, his focus on the proper nouns ('Aborigines,' 'traditions,' 'developers,' 'greenies,' etc.) fails to consider how these are given meaning and 'truth-value' by the way they are positioned, indeed clothed, by adjectives. The attribution of adjectives ('good,' 'bad,' 'true,' 'false,' etc.) to particular 'proper nouns' is anything but objective.
  20. Similarly, the privileging of certain testimonies or forms of evidence reveals implicit assumptions, not only about the relationship between anthropology, history and individual testimonies, but also about the construction of Aboriginal culture generally. The distinction between the 'newly invented' and the authentic, for example, suggests that Aboriginal culture is a fixed static object, the majority of knowledge of which is now held in museums and understood by anthropologists. This distinction was reflected in the line of questioning pursued by the counsel for the 'dissidents.' Rather than take the word of members of the Aboriginal community as to the legitimacy of their claims, the counsel chose to question an anthropologist about the possibility that such a tradition had been 'invented':
  21. Q. [Y]ou are saying that that [tradition] is something that has -- that the formulation has occurred by way of a process of invention of tradition.
    A. Yes, that's a convenient way of describing it. . . .
    Q. If it is an invention of tradition, does that mean that something which was not there previously has appeared in the tradition.
    A. That's right. And it implies a -- sort of a more radical change. I mean, we accept that it is the nature of culture to change all the time, but, in the case of invention of tradition more particularly the examples talked about there are talking about fairly major changes.
    (Royal Commission transcript, 1995: 3711-3713)

  22. Privileging historical and anthropological accounts of Aboriginal culture and history, Kenny claims that: "the Ngarrindjeri no longer possess much of their own cultural history. The greatest repository of that knowledge, physically and intellectually is the museum on North Terrace, Adelaide" (1996: 101). Brunton extends this line of argument to conclude that anthropological material by itself was sufficient to settle the case: "the publicly available anthropological material was sufficient to demonstrate that 'women's business' was almost certainly a recent invention" (8). Brunton here illustrates the way academic sources were interpreted by both the commission and Kenny in relation to the accusation of fabrication. One of the central arguments in the commission's finding is based on the absence of sacred-secret 'women's business' in Roland and Catherine Berndt's The World that Was. According to Brunton, this supports the allegation of fabrication, since the Berndts' book, "[t]he most authoritative account of . . . Ngarrindjeri culture" (3), contains the index entry "secret-sacred issues, absence of."
  23. The argument has considerable importance for the way cultural practices, such as 'women's business,' have been conceptualised. Firstly, it seems to suggest that traditions or customs can only be recognised to the extent that they are recorded by anthropologists. Thus, we find the suggestion that the 'traditional' is that which is recorded by anthropology or held in a museum. This follows from the 'measure of truthfulness' or authenticity based upon a distinction between the 'traditional' and the 'invented,' where the former is truthful, the latter fabricated and inauthentic. Secondly, the title of the Berndt's book, A World that Was, is suggestive of mainstream anthropology's primary objectives: the documentation of traditional customs and practices as distinguished from those which have been transformed or altered as a consequence of colonisation or, indeed, of the presence of anthropologists. As Jane Jacobs notes, "the emphasis on reconstruction of a positive world [in anthropology] has meant many important processes of change and adaptation of traditional knowledge and customary practices were for many years virtually ignored" (Women, rites and sites 79). This focus on "the traditional" meant that anthropology tended to ignore the ways traditions and custom are transformed to meet the contexts in which they are performed.
  24. Described thus, the commission inquiry appears less a dialogue between non-Aboriginal discourses (ie. law, anthropology and history) and Aboriginal subjects more what Trinh T. Minh-ha calls 'gossip': "[a] conversation of 'us' with 'us' about 'them' [which] is a conversation in which 'them' is silenced" (67). This draws attention to the way many 'official' discourses about 'other' (non-Western) cultures speak on behalf of the 'native' as their interpreter, scribe and expert. Indeed, even when 'natives' are given the space to speak for themselves this is always framed by the text of the Western expert, quoted, already interpreted and deciphered, always the object rather than subject of inquiry. In such cases, the 'native' is given speech, in an act of ventriloquism, through citation, whereby the experts speak and in doing so secure and reproduce their source of authority and knowledge.
  25. As with gossip, the more personal or confidential the information is, the more valuable it will be to the expert. Hence, the citation of anthropological authorities who, according to Kenny, know more about Ngarrindjeri than the Ngarrindjeri; hence the extensive biographical accounts of the 'proponent' women, the intense interest in the details discussed in private meetings, the speculation about secret plans and collusion between disparate groups of anti-bridge campaigners, "conservative retirees, radical greenies, small business people, unionists . . ." (1996: 54). According to Trinh, the 'nativist' expert "who seeks to perforate meaning by forcing entry into the Other's personal realm undertakes the desperate task of filling in all the fissures that would reveal the emptiness of knowledge" (68). The citation of 'experts' and 'witnesses' provided the commission with a way of "filling the fissures" thereby enabling it to speak with what Trinh calls "the apathetic tone of the voice of knowledge" (68). This, she notes, "is how gossip manages to mingle with science."
  26. Obviously, the conclusiveness of the commission's 'findings' is linked fundamentally to its authority. As I have already suggested, the establishment of "truth" or "falsity" is dependent upon and constituted through the hierarchical organisation of evidence I outlined above. Further to this requirement, however, the argument must assume that disputing parties, in order to be 'in dispute,' 'agree' upon some common terms or principles. To be considered and judged, these positions must be translatable into the terms of the commission. As Foucault pointed out, the establishment and definition of the terms and rules of 'expressibility,' along with the organisation and categorisation of discourses, is a characteristic of the definition and demarcation of any given institutional or disciplinary 'field' of knowledge (1972). Authority and 'truthfulness,' rather than being what the field properly responds to, are themselves effects of this field.
  27. This point not only connects the demonstration of 'truth' to particular forms and practices of representation, in relation to the delimitation between representation and the unrepresentable, it also suggests the way representational practices both presuppose and constitute legal-judicial authority. We can take, from this observation concerning the relationship between the limits of representation, truth and authority, two points. Firstly, if Aboriginal claims are only recognisable within a legal context to the extent that they are translatable into the terms of 'the law,' the problem is not merely one concerning representation, i.e. partial or non-representative representation, but also concerning the relationship between representability and authority. Secondly, this point is not simply about how the law operates, but rather, it illustrates the way 'the law' constitutes and founds itself in relation to others by establishing or founding a relation between others. For example, the question of how 'the law' represents or recognises Ngarrindjeri beliefs and customs can be read against the historical backdrop in which the foundation of the authority of law in Australia is premised upon both an exclusion of the difference of Aboriginal society and culture and a corresponding mis-recognition and re-inscription of 'the Aboriginal' into the European sphere of recognition, meaning and calculation. Named and positioned within the system of European thinking, the authoritativeness of 'the law' is 'justified' by a certain notion of European superiority and advancement in relation to 'the Aboriginal.' Hence, the authority of 'the law,' its very foundation, is constituted through an act of exclusion and repression: the assumed universality of 'the law' extends it over all instances at the expense of their difference, its singular authority univocal because it permits no dissenting or differing voices. As Mark Taylor notes: "As the domain of the calculable, law defines the sphere in which moral agents interrelate through general values, norms and principles that are shared by a given group" (Nots 86). He adds that the assumed "universality of the structure of exchange makes theoretical and practical calculation comprehensible" (86).
  28. This suggests a relationship between the 'unrepresentable' and the certainty which the 'principle of exchange' makes possible. By naming Aboriginality, the law reduces it to the calculable, the knowable and manageable. As Emmanuel Levinas observes, the reduction of an other to the terms of law improperly forecloses the question of who names, the scene of naming and the possibility of just relations between the Self and Other: "it does not invoke these beings but only names them, thus accomplishing a violence and a negation . . . . Partial negation, which is violence, denies the independence of a being: it belongs to me" (9).
  29. The politics of naming, particularly in this context, evokes a very colonial scenography that reveals the irony of the naming of 'the Aboriginal' insofar as it names that which is before (colonialism etc.) from a position after its denial, exclusion or repression. The later recognition of Aboriginal society, culture and the rights they are taken to provide Aborigines with recalls a scene of colonial naming that overwrites and effaces indigenous laws, languages and cultures by reduced them to the terms already accepted by Anglo-Australian law. Despite the much noted positive implications of the Mabo decision, where the High Court officially overturned the fiction of 'terra nullius' and recognised common law 'native title,' for example, Tehan notes that it arguably "had a negative impact on the limited heritage protection that does exist, since it demonstrated that the common law is unable to recognise interests in land which are different to, or not derived from, it own concepts of property and which do not meet the stringent test for the survival of native title" (268). Thus, the law recognises Aboriginality only after the authoritativeness and legitimacy of Aboriginal law is passed over, denied and displaced. Making a similar observation about Kant's description of the human and the notion of the subject, Gayatri Spivak notes:
    I have indeed thought of who will have come after the subject, if we set to work, in the name of who came before, so to speak. Here the simple answer . . . [is] the Aboriginal [and yet] . . . [p]aradoxically, Kant bestowed upon them an absurd national identity [Neuholländer]." (Critique 27n32)
    The irony is, therefore, that -- as with the representation of Aboriginality within the law -- the identity Kant places before the subject, the Aboriginal, occupies a bizarre before-after position suggested by the name 'Neuholländer.'
  30. As Freud has noted, the content of a repressed image or idea can make its way into consciousness only if it is first negated. The negation of what is not translatable into the terms of the Self, restores and maintains the mastery of the Self by naming what is negated in its own terms: "To negate something is, at bottom, to say: 'This is something which I should prefer to repress.' A negative judgement is the intellectual substitute for repression; its 'no' is the hall-mark of repression, a certificate of origin" (667). The naming of 'the Aboriginal,' the inscription of Aboriginality within law and the refusal to accept the idea of a undisclosable secret are connected in so far as the initial denial or disavowal of difference makes possible a recovery or difference in the terms of the Self or the law. This recuperation recovers difference, but recovers it in such a way as to re-cover the irrecuperable. In the Hindmarsh case, as with Freud's subject, this recuperation is never fully or completely achieved or completed; even after recuperation, there remains a trace of the unrecoverable and unrepresentable. It is thus tempting to make use of Freud here, as Jacobs and Gelder do, to diagnose both the compulsion to represent and settle the truth and the unsettling and 'uncanny' effects of the unrepresentable.
  31. The conclusiveness of the commission's argument is thus based on a representation of 'the secret,' in the sense that the commission must represent the secret in order to consider it, incorporate, know or master it. Thus, the commission differentiates between that which is of true 'value' to the case, those discourses against which reliable and truthful discourses must be differentiated, and simultaneously fails to acknowledge that which the terms of such differentiation excludes or effaces. For the commission, there can be no recognition of difference that cannot be represented:
  32. [f]acts must be proved to the reasonable satisfaction of the Commissioner. . . . The Commission could only come to its findings on the basis of the evidence before it. . . . 'Evidence' meant [only] evidence given in the witness box with the sanction of an oath and subject to examination. (Report, 1995: 7)

    This rigorous notion of 'evidence' and 'truth' would pose serious problems for those who wished to have their sacred knowledge recognised, but were unprepared to disclose such knowledge to achieve this. And yet, the commissioner declares with full confidence that the commission's conclusion was justified on "the basis of the evidence before it"(7). Indeed, Kenny provides an insight into how the commissioner was able to come to this conclusion given the significant gaps and absences in the inquiry: "the Commissioner . . . was able to draw inferences from the refusal of many to testify" (230-231).

  33. Similarly, Nicholas Iles, counsel for the 'dissident' women, suggested that:
  34. the decision of the proponent women to boycott the Commission was a calculated one, taken on legal advice . . . [and] was a matter which Commissioner Stevens was entitled to take into account in assessing the bona fides of their claims and the veracity and utility of any evidence which they might have, but did not give . . . . (12)

    The notion that the commission was competent to consider and assess the veracity of evidence never brought before it is simply extraordinary, and yet, it does highlight the difficulty of the task it undertook. As the counsels in the inquiry noted, it remains to be seen how an alleged sacred-secret could be shown not to exist. As the counsel for the 'dissident' women point out:

    Unless you know what the secret women's business is -- either the generality of it or the specifics of it -- you will have no way in which you can test the criticisms that are made in respect of the generality to see if they are correct and, if so, what weigh you give them. (Transcript 28)

    The strategy the commission decided upon, given this difficulty, was to inquire instead into the circumstances under which the alleged sacred-secret 'emerged.'

  35. Here, the commission's capacity to make sense of the absence of the 'proponent' women appears to be essential to its ability to come to a 'conclusive' decision. The problem with this, therefore, can be seen to be both a matter of what might not or could not be said in the commission's hearings and the way the commission determined what it will hear, what it will have into consideration, what value evidence shall be granted and how these determining factors enable the commission to re-present the 'truth.' As I have suggested, the problem is roughly analogous to the mis-recognition of Aboriginal society and culture, that formed the basis of the terra nullius thesis, which legitimised Aboriginal displacement and dispossession. After all, the authoritativeness of terra nullius was premised on particular representations of Aborigines which positioned them in opposition to, and thus inscribed in the terms of, European standards and norms: constructed in terms of alleged absence, Aborigines were seen to have a lack of civilisation, organised society or government.
  36. As Russell Goldflam has noted, Aborigines are today still constructed in such a manner:
  37. that same system continues to construct Aborigines' language rights on the (unspoken) assumption of 'vox nullius'. . . . By effectively depriving Aboriginal people of a voice, institutionalised organs of state coercion, of which the legal system is a prime example, simultaneously claims for their own discourses a position of privilege . . . (38-39)

  38. In this way, the structure of the 'hearing' can be understood, not solely as an apparatus for listening to testimonies or evidence, but also, perhaps primarily, as a mechanism for organising, interpreting and translating -- for distinguishing the heard from the unheard and thus establishing the conditions for 'hearing' itself. Greg Mead's book A Royal Omission: A critical summary of the evidence given to the Hindmarsh Island Bridge Royal Commission with an alternative Report is very useful for illustrating this point in so far as it presents an argument structured around fragments of transcript and comes up with a totally different conclusion. By describing the way the commission 'heard' evidence, Mead's book also offers insights into the particular strategies used by the commission to reach its conclusions. His text includes, in fact privileges, the types of voice the commission trivialises and excludes, like the testimonies of Steve Hemming, Deane Fergie and Betty Fisher, all of which provide arguments for the existence of sacred-secret 'women's business' are not addressed in the Report.
  39. But, of course, the problem of translation, interpretation and recognition is a problem quite separate from the issue of who the commission decides to favour. The 'hearing,' rather than offering a neutral space for all to speak freely, already restricts what can be heard within its confines to that which is spoken in its terms. This relates to a point made by Gayatri Spivak about what speaking in this type of context might be. According to Spivak, the significant issue with regards to recognition and representation is not who can say something, but rather who listens: "speaking and hearing complete the speech act" (The Spivak Reader 292) The relevance of speech-act theory here is important, for speech-act theory, via Derrida, suggests that a verbal or visual sign is recognisable only to the extent that it conforms or follows pre-established rules or conventions. To be heard in court, for example, you must follow its rules; you must speak in terms it recognises. In this way, 'the law' is able to re-establish its authority in new contexts and situations through the repetition or citation of law. This again suggests way in which the structure and intention of the commission hearing repeats the 'violence' of exclusion and differentiation which constituted the foundation of the law. Clearly, this has imperialist implications in so far as Aboriginal claims can only be recognised in the terms of law, through translation or by proxy. Thus, legal representation, both in the sense if depiction and in the sense of an acting of behalf of, is always expressed within the closure of legal discourse as, what Spivak calls, an "irreducible vis-à-vis" the Eurocentric dominant (164).
  40. As I have suggested, it is possible to read the commission's assertions that it will not recognise what is not brought before it and that, therefore, 'the secret' must be spoken in order to be assessed as an expression of concern with regards to its authority. Indeed, the question of authority in this case hinges on its ability to incorporate and consider both sides of the argument. Tying together the acts of writing (and speaking), appropriation and mastery, Michel de Certeau argues that the 'mark' (the 'trace' or 'voice') of the Other threatens the unity and authority of the discourse or text. This point may be useful for thinking about how it is necessary for the commission to speak on the 'proponent' women's behalf in order to neutralise the challenge they represent. According to de Certeau, it is the 'mark,' 'smudge' or trace of alterity which signals the limit of the discourse and thus evokes a sense of the unrepresented; the 'mark' thus signals "[t]he instability of the limits set: the frontier yields to something foreign" (154); describing Robinson Crusoe's discovery of footprints on the beach, for example, he suggests that it is the threat of the unknown, the unknowable, irreducible Other or absence which the footprint marks the trace, that causes Crusoe such great concern and anxiety.
  41. Indeed, as with the suggestion of the unspeakable or unrepresentable, the footprint is threatening because it marks the limit of Crusoe's world/text/ discourse. It is that which cannot be incorporated. Thus just as Crusoe recovers "the power of mastery when he has the opportunity to see . . . when the absent other shows himself" (154) so too the authority of the law or the commission, and the conclusiveness of its arguments can only be established when the secret is said, know and, therefore, able to be incorporated. Even if its withheld, the secret is inscribed within the realm of the discoseable or the speakable and would incorporate and account and thus deny the secret its secrecy. There is, then, an important difference between the secret 'as-it-appears' or is spoken about and 'the secret as secret. As Derrida observes: "[t]he secret is not the secret of representation that one keeps in one's head and which one chooses not to tell, it is rather coextensive with the experience of singularity. The secret is irreducible to the public realm- although I do not call it private" ("Remarks" 80).
  42. Indeed, in the case itself we find some evidence of this problem of naming the secret. Bell, for example, prefers the phrase "restricted knowledge" to 'secret' since 'secrecy' as it is commonly understood mischaracterises the tradition in question:
  43. If one is operating within a system of restricted knowledge and is bound by the "respect system, the issue of so-called "secrecy" takes on a different hue. It is linked to the authority of the elders and to the protection of what is sacred; it is far from the taunt of "I have a secret." (1998)

    It is important to note, then, that the ability to name, define and speak that otherness which allows it to be appropriated in a manner which simultaneously maintains authority. As de Certeau notes: "[n]aming is not here the 'painting' of reality any more than it is elsewhere; it is a performative act organising what it enunciates. It does what it says, and constitutes [what it] . . .declares" (155).

  44. In a related way, certain aspects of the inquiry demonstrate the paradoxical nature of the commission's objective concerning the demonstration of truth, and the secrecy of the tradition in question. In the cross-examination of amateur historian, Betty Fisher, for example, Michael Abbott, counsel for the 'dissident' women, suggested that Mrs. Fisher had proven that she did not really possess any knowledge of sacred-secret traditions because she allowed sections of her notebook to be filmed for evidence and this would have been prohibited if the contents were 'truly' sacred. Thus, Abbott suggests that non-disclosure testifies to authenticity since it would suggest that the information were truly sacred. However, when it was explained that only non-sacred, non-secretive parts were filmed Abbott called for Fisher's evidence to be "disregarded as untested" on the grounds that she "refused to produce the notebooks for scrutiny" (Mead 13). Thus, the sacred-secret could only be recognised as legitimate if it was made available for inspection which, according to Abbot, would 'prove' that it was not 'truly' sacred.
  45. This paradox is further demonstrated in other argues used by the Commission's Report, particularly in relation to the use of evidence from anthropologists and the 'dissident' women. For example, although the Commissioner acknowledges that sacred-secret knowledge is restrictive by its very nature she goes on to argue that "[i]f the 'women's business' existed and if it came from the sources nominated by Doreen Kartinyeri [the 'central' 'proponent' women] then it could not have been kept totally secret [ie from anthropologists and the 'dissident' women]. . ." (Report: 298). The suggestion is, therefore, that despite perfectly reasonable arguments put forward to the Commission by Steve Hemming, Deane Fergie and others which sought to explain why anthropologists and the "dissident" women may have been excluded from this secret business, the Commissioner suggests that if the secret is true, have to be disclosed or partly known.
  46. This contradiction reveals the gap that the Commission must bridge between its object of inquiry, the secret 'women's business,' and the contents of the secret envelopes which were sent to the (then) Aboriginal and Torres Strait Islander Minister, Robert Tickner, and formed the basis of his Heritage Act declaration, i.e. the secret itself. The problem, as Deane Fergie has pointed out, is that in its terms of reference the Commissioner determined that 'women's business' referred to "the women's business contained in the sealed envelopes. . . [and] the secret envelopes were not before the royal commission" (14-15). This is why the Commissioner sought to re-construct the contents, fabricate them, by reference to varied sources -- sources which, as Fergie notes, did not view the contents of the envelopes but could only speculate. Thus, the Commissioner argues, somewhat unconvincingly, that "there has been a body of evidence out of which it has been possible to infer their contents" (298).
  47. But even Abbott, acting on behalf of the 'dissident' women, recognised the problem with this; as he argued early in the Commission hearings, unless the contents of the envelopes were available for scrutiny, "[i]t would, in our submission, entirely frustrate the Commission . . . because unless you know what the secret women's business is -- either the generality of it or the specifics of it -- you will have no way in which you can test the criticisms that are made. . ." (Fergie 24). In fact, the ridiculous-ness of the assumption that an inference could be draw from testimonies made by people who had no idea what the 'women's business' was or had no knowledge of the contents of the secret envelopes, is powerfully demonstrated by Fergie who notes that the evidence which would make inference possible included an "exhibit identified as a 'bundle of press reports,' a letter to the editor of the Advertiser[,] videos of television interviews with Doreen Kartinyeri [and] two pages of Hansard, one referring to comments in the South Australian House of Parliament by Liberal MP Peter Lewis on what he thought the contents of the envelopes were and a response to those comments two days later" (Fergie 18). The irony is, of course, that on the matter of the contents of the envelopes, Peter Lewis speaking on the floor of the South Australian Parliament is taken to be as reliable a source of information as the primary author of the contents, Doreen Kartinyeri.
  48. This point illustrates the extent to which the Commission failed to consider the implications of its conduct and how in not recognising the sacredness of the alleged secret. Surrendering sacred-secret information to such a body, even where confidentiality is promised, involves considerable risks for the particular Aboriginal community. The envelopes sent to Robert Tickner ended up, through some error, at the office of the (then) shadow environment Minister, Ian McLachlan, an outspoken opponent of the 'women's business' claim. Disregarding the label which said "Confidential -- to be read by women only," McLachlan's staff opened the envelopes and photocopied the contents. While it is true that, as a consequence, McLachlan was forced to resign and the photocopies were destroyed, the Court later overturned Tickner's ban on the grounds that he had not properly considered the claim.
  49. Moreover, in the Broome Crocodile Farm Case:
  50. [t]he Full Court . . . concluded that the dictates of natural justice, or procedural fairness, required that certain information which had been received by a "s10 reporter" [or a person reporting on a section 10 breech of the Heritage Act] and which was potentially adverse to the interests of other parties . . . be given, in some form, to the interested parties so that they may have an opportunity to answer the information. (Davis 127)

  51. In other words, the Court has suggested that the contents of a Heritage Act claim must be made available to 'interested parties.' Strict confidentiality, therefore, could not be guaranteed. These events clearly offer some justification for concerns relating to the protection of sacred-secret information. Indeed, as Jane Jacobs has pointed out, this concern about disclosure may in fact relate to the sudden 'emergence' of claims:
  52. Recording Aboriginal land-based knowledge, cultural or sacred sites as such knowledge has come to be known, establishes the preconditions for a power/knowledge nexus which rests not with Aborigines but with those state agencies that build 'complete' and spatially fixed reconstructions of this knowledge. In various ways, Aboriginal groups have attempted to negotiate a balance between the present pragmatic necessity of disclosure, the need to register sites so that they are afforded legal protection, and the necessity of secrecy, the need -- both traditional and strategic -- to keep their land-based claims to themselves. (Edge of Empire 113)

  53. As I have suggested, the way the Commission insisted that the sacred-secret be proved relates to its own authority. If we reflect upon the unspeakability of the secret and the Commission's attempts to make the secret known, we could ask: "what is not heard in the Commission hearing or, by extension, within the legal context?" Clearly, it seems to me, the Commission will not recognise the suggestion that it cannot establish the truth, that it has no authority over Aboriginal cultural beliefs and that its assumed authoritative-ness and universality is premised upon a denial of difference: different cultural systems, different laws. In this way, the underlying concern in the case the reason why the Commission felt it must reach a judgement relates to what the sacred-secret claim represents, i.e. the unknown, the unspeakable, the unrepresentable demanding recognition. Indeed, this seems to be the issue that Nicholas Iles is most concerned about when he argues for the conclusiveness of the Commission's findings: "But where are we to draw the line? In making such exceptions -- however attractive in isolated instances -- you cannot but put at peril the rule of law by which rights and obligations of individuals are determined" (my emphasis, 12).

Works Cited

Bell, Diane. Ngarrindjeri Wurruwarrin: a world that is, and will be. Melbourne: Spinifex, 1998.

Brunton, Ron. "The False Culture Syndrome: The Howard Government and the Commonwealth Hindmarsh Inquiry." IPA Reporter, March 1996: 1 - 9.

Certeau, Michel de. The practice of everyday life. Trans. Steven Rendell. Berkeley: U of California P, 1984.

Davis, Glenn. "Hindmarsh Island: Another Inquiry." AMPLA Bulletin 15.3 (1996): 56-58.

Derrida, Jacques. "How to Avoid Speaking: Denials." Languages of the Unsayable: the Play of Negativity in Literature and Literary Theory. Ed. Sanford Budick and Wolfgang Iser. New York: Columbia UP, 1989. 3-62.

---. The Post Card: from Socrates to Freud and Beyond. Trans. Alan Bass. Chicago: U of Chicago P, 1987.

---. "Remarks on Deconstruction and Pragmatism." In Deconstruction and Pragmatism, ed. Chantal Mouffe. London and New York: Routledge, 1996. 77-88.

Fergie, Deane. "Secret Envelopes and Inferential Tautologies." Journal of Australian Studies 48 (1996): 13-24.

Foucault, Michel. The archaeology of knowledge and the discourse on language. Trans. Alan Sheridan. New York: Pantheon, 1972.

Freud, Sigmund. "Negation." The Freud Reader. Ed. Peter Gay. London: Vintage, 1995. 666-69.

Gelder, Ken, and Jane Jacobs. Uncanny Australia: Sacredness and Identity in a Postcolonial Nation. Melbourne: Melbourne UP, 1988.

Goldflam, Russell. "Silence in Court! Problems and Prospects in Aboriginal Legal Interpreting." Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia. Ed. Diana Eades. N.S.W: U of New South Wales P, 1995. 28-54.

Iles, Nicholas. "Thankful for a Clear Finding" The Law Society of South Australia Bulletin. April 1996: 18 (4).

Jacobs, Jane. Edge of Empire: Postcolonialism and the City. London & New York: Routledge, 1996.

---. "'Women Talking Up Big': Aboriginal women as cultural custodians, a South Australian example."Women, rites & sites: Aboriginal women's cultural knowledge. Ed. Peggy Brock. Sydney: Allen & Unwin, 1989. 76-98.

Jopson, Debra. "Bridge Writ Large." Sydney Morning Herald. March 2 1999, p. 14.

Kenny, Chris. "It would be nice if there was some Women's Business". N.S.W: Duffy & Snellgrove, 1996.

Levinas, Emmanuel. Basic Philosophical Writings. Ed. Adriaan T. Peperzak et al. Indianapolis: Indiana UP, 1996.

Mead, Greg. A Royal Omission: A critical summary of the evidence given to the Hindmarsh Island Bridge Royal Commission with an alternative Report. South Australia: Greg Mead, 1995.

Montaigne, Michel. Essays. Trans. John Florio. London: Penguin, 1958.

Spivak, Gayatri Chakravorty. A Critique of Postcolonial Reason: Toward a History of the Vanishing Present. Cambridge MA: Harvard UP, 1999.

---. The Spivak Reader. Eds. Donna Landry and Gerald MacLean. London and New York: Routledge, 1996.

Stevens, Iris, Royal Commissioner. Report of the Hindmarsh Island Bridge. Adelaide: State Print, Dec, 1995.

Taylor, Mark. Nots. Chicago and London: U of Chicago P, 1993.

Tehan, Maureen. "To Be or Not to Be (Property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural Heritage." University of Tasmania Law Review 15.2 (1996): 267-305.

Trinh, T. Minh-Ha. Woman, native, other: writing postcoloniality and feminism. Bloomington: Indiana UP, 1989.

Case Reports and Transcripts

Chapman and Others v Minister For Aboriginal and Torres Strait Islander Affairs and Others (SG57 of 1994) 133 ALR 74 1995.

Transcript of Proceedings of the Royal Commission Inquiry of the Hindmarsh Island Bridge 1995.

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