The cross-cultural ‘case study’ is, we suspect, a lot more common in law curric-ula today than even 10 years ago. Yet the focus in such studies as ‘Aborigines and the Law’ is on detailing the injustices or, conversely, the possibilities for justice faced by Aborigines when confronting ‘the law’, and so the actual con-tent or insights of Aboriginal law itself is only ‘incidental to such questions as whether Aborigines should be entitled to invoke “their” law and to be corre-spondingly exempt from the application of “white” law’.94That monolith,
‘white law’, remains unchallenged for settler Australians, despite the fact that
‘our history of ideas includes that of more than 40 millennia of Aboriginal pres-ence’. The challenge is how settler Australians allow insights gleaned from intercultural encounters to form their idea of what law is or ought to be. A sim-ilar challenge in a different context has been posed by anthropologist James Clifford: ‘What would it require, for example, consistently to associate the inventive, resilient, enormously varied societies of Melanesia with the cultural future of the planet? How might ethnographies be differently conceived if this standpoint could be seriously adopted?’95
There are certain key words in Anglo-Australian law that should always work to send, in the words of Dick Hebdige, ‘our curiosity about the otherness of others back home where it belongs’.96One of those is ‘reasonable’. Not only is the ‘reasonable man’ obviously gendered, but what counts as reasonable is usually culture-specific. In particular, ‘reasonableness’ is a trope often used by a dominant culture to project its experience as normative and so disenfranchise the perspectives of subordinate cultures. It again appears as a key word in Megarry J’s proposition in Coco v AN Clark (Engineers) Ltd where, in formulat-ing the elements of the modern action for breach of confidence, he confronted the question of when should the courts find that a communication was made ‘in confidence’:97
It seems to me that if the circumstances are such that any reasonable man stand-ing in the shoes of the recipient of the information would have realised upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.
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94 Ellinghaus, MP, ‘Towards an Australian Contract Law’ in Ellinghaus, MP, Bradbrook, AJ and Duggan, AJ (eds), The Emergence of Australian Law, 1989, pp 44, 66, Sydney:
Butterworths.
95 Clifford, J, ‘On Ethnographic Allegory’ in Clifford, J and Marcus, G (eds), Writing Culture:
The Poetics and Politics of Ethnography, 1986, p 115, Berkeley: University of California Press.
96 Hebdige, D, ‘Foreword’ in Michaels, E, Bad Aboriginal Art: Tradition, Media and Technological Horizons, 1994, p xix, Minneapolis: University of Minnesota Press.
97 [1969] RPC 41, 48.
The question that troubles us is how such a confident assertion stands up when we transpose the ‘reasonable man’ of a print economy into an oral economy of information. A print economy celebrates ‘the ideals of a transparent public realm and the automatic “right to know” (and show) so central to prevailing definitions of science and democratic freedom’.98 How reasonable is it really to presume we can transpose these values unproblematically to an oral economy of information? Can the equitable doctrine of breach of confidence fulfil the requirements of an ‘ethics of disclosure’99in cross-cultural encounters?
One case that addresses these issues is Foster v Mountford.100 In that case, Muirhead J issued an injunction restraining the author and publisher of a book containing secrets of significance to the Pitjantjatjara people in the Northern Territory. The secrets had been obtained by the author, an anthropologist, over 30 years previously. The background to the case is given in Phillip Toyne and Daniel Vachon’s Growing Up the Country. They chronicle the growing political aspirations of the Pitjantjatjara people which culminated in the formation of the Pitjantjatjara Council in 1976 and subsequent successful land claims in the north-west of South Australia and the south-west of the Northern Territory. In October 1976, a Pitjantjatjara Council meeting at Indulkana was discussing appropriate mechanisms for control of their land. Toyne and Vachon record:101
Discussion turned from land rights to another threat to their law: the publication of CP Mountford’s Nomads of the Central Desert. The book had been seen by men visiting Adelaide and, later, in Alice Springs. A copy was produced and exam-ined by the men in a closed session of the meeting. It contaexam-ined many photographs of ceremonies and sacred sites, which could not be viewed by women or uninitiated males. There was great anguish expressed by many old people as they huddled around the book lying open on the ground. They called for it to be taken out and burnt, only to be told that thousands more copies were available.
Despite the granting of injunctions and subsequent suppression of the book, Toyne and Vachon conclude that many of the Pitjantjatjara:102
... felt that considerable damage had already been done because those books already sold could not be retrieved. If one lesson emerged from the men’s talk at Indulkana, it was that the protection of their land and their law would have to take on a new militancy and vigilance, along with the resolve to meet all threats whenever and wherever they arose.
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98 Hebdige, above n 96, xix.
99 Ibid, citing Brett, G, ‘The Politics of Images’.
100 (1977) 14 ALR 71.
101 Toyne, P and Vachon, D, Growing Up the Country: The Pitjantjatjara Struggle for their Land, 1984, p 51, Melbourne: McPhee Gribble.
102 Ibid, 51.
In the context of existing case law on breach of confidence, there was little that was legally novel about the case.103The modern action of breach of confidence has three elements:
● information with the necessary quality of confidence about it;
● imparted in circumstances that import an obligation of confidence; and
● an unauthorised use made of the information to the detriment of the party communicating it.
Stephen Gray notes that in Foster v Mountfordthe information was clearly con-fidential and had been understood to be so by the defendant at the time it was communicated.104 Likewise, the information had never previously been ‘pub-lished’ under the definition of publication in Australian law. Muirhead did not have to consider what the situation would have been had some form of publi-cation of the information, authorised by the plaintiffs, occurred prior to its communication to the defendant.105
Yet there remain topical areas where the issues may not be so clear cut. For instance:
● the commercial exploitation of Aboriginal designs without the authorisa-tion of the responsible community;106
● the repatriation of bones and other artefacts of indigenous people;107
● evidence presented to show connection to country in land rights and Native Title claims.108
Case studies can be drawn from these areas that take discussion beyond the bounds of Muirhead J’s judgment. In the case of Yulumbul, the applicant, Terry Yulumbul, was one of a small number of people permitted under Aboriginal law to make ceremonial Morning Star poles. He authorised one of his poles to
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103 Gray, S, ‘Aboriginal Designs and Copyright’ (1992) 66 Law Institute Journal47, 48.
104 Ibid, 48. A related issue is whether the information is too ‘trivial’ to warrant protection.
Clearly, the secrets involved were important to the social cohesion of the Pitjantjatjara.
Other belief systems may not fare so well: in Church of Scientology v Kaufman[1973] RPC 635 at 658, Goff J held that the information as to the technology and practice of Scientology was
‘pernicious nonsense’ and not protectable.
105 Ibid.
106 See, eg, Yumbulul v Reserve Bank of Australia(1991) 21 IPR 481. The case was argued in con-tract rather than breach of confidence and centred on the question of whether copyright was validly licensed under Anglo-Australian law. French J, at 490, highlighted the issue of the cultural limitations of Australia’s copyright law which ‘does not provide adequate recogni-tion of Aboriginal community claims to regulate the reproducrecogni-tion and use of works which are essentially communal in origin’.
107 See, eg,Sainty v Allen, litigated in the Federal Court (Unreported, No VG 643/1995) under the Aboriginal Relics Act 1975 (Tas).
108 See Neate, G, ‘Determining Native Title Claims: Learning from Experience in Queensland and the Northern Territory’ (1995) 69 Australian Law Journal510; Edmunds, M (ed), Claims to Knowledge, Claims to Country: Native Title, Native Title Claims and the Role of the Anthropologist, 1994, Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies.
go on display at the Australian Museum and the respondents in turn repro-duced the pole on the bicentennial 10-dollar note. French J found that the pole lost any quality of confidentiality it may have had once it appeared in the public domain by virtue of its sale to the Australian Museum.109Yet Gray comments that ‘[p]art of this quality of confidentiality may be said to lie in the restrictions placed by the Aboriginal owners of the design upon its further dissemination.
The design retains its quality of confidentiality as long as its secrets are known only to those authorised by Aboriginal law to know them’.110
Similarly, Eric Michaels gives the following scenario:111
The Northern Territory government chose to locate an artificial recreation lake at one of the few remaining sites in the Todd River, Alice Springs, sacred to the traditional Arrente Aboriginal custodians of the region. In an act of resistance, Arrente people had moved out of the town camps to take up residence in the creek bed, holding dances and ceremonies as well as press conferences to under-score their rights to this land. The site was a women’s dreaming place, and sacred objects were housed there. One of the senior woman owners displayed the objects to a reporter, and a picture of them covered two-thirds of the front page of the local paper. Aboriginal people in the area were incensed at what they interpreted as sacrilege. The regional Aboriginal media association was asked to broker subsequent visits by the press, and the paper editorialised on this as an intrusion on the freedom of the press.
In this case, Michaels comments, the women’s right to display objects to cameras was not in dispute. The problem the camera posed was that in recording the design the display could be recreated without their consent or control in situations that might not be appropriate.112Michaels concludes:
Literate society’s closest analogy to this situation is property ownership (although the conditions of ‘owning’ oral information and ‘owning’ material property in capitalist society may prove significantly different). In lending a lawnmower to a neighbour we expect him [sic] not to lend it to someone else without our permission and would be incensed if he sold it. We do not, certain-ly since Gutenberg, place the same constraints on oral information ... The mass media capitalise on this fact. When journalists and anthropologists, for example, hear Aboriginal secrets, they may mistakenly assume their right to publish them. (One suspects that the mistake is, at times, made purposely.) There may also occur some confusion as feminist fieldwork retrieves women’s knowledge from societies in which information is segregated by sex, as it is throughout Australasia. The discovery that women in fact know details of male secret lore should not be confused with their right to speak of them, especially publicly, or to exchange them in an economic sense.
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109 Yumbulul v Reserve Bank of Australia(1991) 21 IPR 481.
110 Gray, above n 103, 49.
111 Michaels, E, ‘Constraints on Knowledge in an Economy of Oral Information’ (1985) 26 (4) Current Anthropology505, 507.
112 Ibid.
Muirhead J in Foster v Mountforddid not have to confront the issue of whether the duty of confidence was based on breach of faith, on contract or in property.
Michaels’ analysis indicates a proprietorial framework, a framework that might be of practical significance according to Gray. He suggests that the Mabo case
‘opens the possibility of legal protection of traditional Aboriginal interests in art on the same conceptual basis as it accords protection to traditional interests in land: specifically, that Aboriginal art is a “nature or incident” of traditional Aboriginal title to land’.113
An ethics of disclosure?
The phrase ‘ethics of disclosure’ is one we came across in a discussion of con-temporary anthropology. As the extracts from Toyne and Vachon show, the issue of breach of confidence in intercultural encounters is very much one of political empowerment. Historically, it is unclear how a ‘reasonable man’
would regard the obligations imposed on receipt of Aboriginal knowledge. The ghost of one such reasonable man haunts our work here. We sit and write this in offices in the University of Melbourne Law School in a building named after Baldwin Spencer, foundation chair of biology at this university. Spencer under-took ethnographic fieldwork in Central Australia and, some years later, Arnhem Land. His translation of various Aboriginal words – for instance,
‘Dreamtime’, ‘Kakadu’ – have become embedded not only in the discipline of anthropology but in the imagination of the country as a whole. In 1899 he pub-lished, with Frank Gillen, Native Tribes of Central Australia. He was part of that school of traditional anthropology – if not one of the founders – that has gener-ally seen Aboriginal beliefs and practices as a resource to be plundered according to the dictates of scientific and ethnographic research, either in the belief that such practices were dying out and needed to be recorded for pros-perity, or from a belief in the free flow of scientific and other information in the public interest. Toby Miller goes so far as to claim ‘I don’t think there can be any doubt that Aborigines have been the most important Australian exporters of social theory and cultural production to the northern hemisphere over the past century’,114 citing Marx, Durkheim, Mauss, Freud, Malinowski, amongst oth-ers, as using forms of Aboriginal knowledge in the construction of their theories.115
The issue of power and control over such information is still a very real one:
witness such works as Bruce Chatwin’s populist ethnography, The Songlines, where the author takes the time to describe the laws governing secrecy and
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113 Gray, S, ‘Wheeling, Dealing and Deconstruction: Aboriginal Art and the Land Post-Mabo’
(1993) 63 Aboriginal Law Bulletin10.
114 Miller, T, ‘Exporting Truth From Aboriginal Australia’ (1995) 76 Media Information Australia 7.
115 Ibid. Miller also gives numerous examples of more contemporary appropriations of Aboriginal knowledge.
then proceeds to contravene them comprehensively.116 Which is why the fol-lowing caption, from anthropologist Michael Taussig’s The Nervous System, struck us so powerfully:117
This empty space is where I would liked to have presented Spencer and Gillen’s drawing of the frog totem because it seems to me next to impossible to get the points across without this amazing image. But my friend Professor Annette Hamilton, of Macquarie University, Sydney, tells me that to repro-duce the illustration would be considered sacrilege by Aboriginal people – which vindicates not only the power of the design but of the prohibitions against its being seen, strenuously noted but not observed by Spencer and Gillen themselves.
It is powerful precisely because it is an ethical stance that confounds the premis-es of equitable notions of breach of confidence. Given that Spencer and Gillen’s book is available in most university libraries, Taussig’s gesture seems gratu-itous according to the standards imposed by an equitable duty of confidence.
Yet it recognises the practical legitimacy of Aboriginal constraints on publica-tion. Such legitimacy, in turn, has been reinforced by the historical experience of colonisation – an experience that renders Megarry’s ‘reasonable man’ quite useless as a conceptual tool:118
Against the will to know which western science and liberalism have launched against Aboriginal peoples – to subjugate by finding out about them – the people have practised strategic non-disclosure. Against a hypocritical libera-tionist ideology: ‘Express yourself freely and you too will be free’, Aboriginal people have often preferred to remain free on their own terms. One of the major strategies whereby Aboriginal people have retained a value for their culture is silence and the public/secret division.