Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia

Abstract

Oceania believes that in this essay the legal scholar Gary Edmond provides anthropologists with a valuable approach to analyzing the relationship which has developed in recent years between the practice of law and the practice of anthropology. Therefore we invite responses to 'Thick Decisions', which should be about 1000 words and confined to specific arguments. A selection of responses will be published in the next. issue of the journal. Please contact the editor if you intend to respond. Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia Gary EdmondIThe University ofNew South Wales ABSTRACT Drawing from the litigation around the Hindmarsh Island Bridge (especially Chapman v Luminis Pty Ltd 2(01) this article provides an analysis of judicial responses to anthropological expertise. Sensitive to the institutional responsibilities of judges, as well as rules of evidence, procedures and legal causes of action, it examines the strategic representation and appropriation of anthropological knowledge and practice. In exploring the relations between law and expertise the article illustrates how their combination shapes outcomes. In the process it explains how the judge could have produced a range of (in)consistent outcomes through the modulation of legal categories and their relations with prevalent images of anthropological expertise. This analysis positions the article to critically reflect on some of the implications for anthropologists working in and around legal or quasi-legal settings as well as those commenting on that participation.

Law's Anthropology : From ethnography to expert testimony in native title

“…3);and Hacking (1999:63-99). jurisdiction of the Aboriginal Land Commissioner under the Land Rights Act, where virtually all experts were anthropologists, in the native title era, the anthropologist is just one kind of expert appearing before Federal Court judges. While addressing all experts, the rules and guidelines for expert witnesses tend to assume the scientific expert as a paradigmatic case (see Cooper 1997-98;Edmond 2004). …”

“…The judge made it clear that these considerations did not apply to an expert witness in court. Even in non-court situations, von Doussa's reasoning has been criticised (see Burke 2002;Edmond 2004;Merlan 2001). the judge's first intervention in his cross-examination was the negative comment about the footnote mentioned above (T. 2376), and other instances when the judge adopted a sarcastic attitude:…”

A community of critics? Thoughts on new knowledge*

“…So let me make another return to land claims, Aboriginal this time, and to a clear interdisciplinary moment. A remarkable piece of ethnographic elucidation is to be found in a lawyer's commentary on anthropological advocacy (Edmond 2004). Edmond is concerned to show anthropologists that once they are in court they have ceded interpretative space.…”

“…Edmond quotes an Australian jurist who claimed ‘the last thing I would wish to encourage in humanist witnesses is obsequiousness towards lawyers … There are good social reasons for treating the legal system's normative and adjudicatory authority with respect, but none for endowing it with intellectual authority’ (2004: 221). Anthropologists have an important obligation publicly to criticize legal processes if they feel that their work is misunderstood or that claimants are treated unfairly: ‘[S]ustained and consolidated criticism of legal rules, procedures and doctrines, as well as findings, may find fertile ground among judges and other attentive publics’ (Edmond 2004: 221, emphasis omitted). The law courts are not, however, the place for it; a public space of sorts (the agora ) is.…”

The Making of Indigenous Knowledge in Intellectual Property Law in Australia

“…6 This is a reality of legal engagement with differentials, either cultural or political, as law mediates a space that does not destabilize its own narrative of internal cohesion. This is part of the necessarily cultural functions of law.…”