Published in Overland Issue 237 Summer 2019 · Criticism / Racism Crocodile tears Russell Marks In 2016, the University of Queensland Press published Saltwater. Written by Queensland barrister Cathy McLennan, Saltwater has received almost universal acclaim among readers, reviewers and indeed the Queensland Literary Awards (QLAs), which declared it ‘Best Non-Fiction Book’ in 2017. Its author, appointed a magistrate shortly before the book’s publication, has since accepted invitations to speak on matters of law and policy affecting Aboriginal people and communities. The book is often recommended reading, including at university level. All of this should come as a surprise, because Saltwater’s myriad problems could have excluded it from publication altogether. A memoir recounting the two years McLennan worked for the (now defunct) Townsville and District Aboriginal and Torres Strait Islander Corporation for Legal Aid Services (LAS) in the mid 1990s, Saltwater is billed as ‘an epic fight for justice in the tropics’. That could be dismissed as mere publisher puffery, but it is also what McLennan clearly believes she is engaged in. What is difficult to discern is just whose justice she was fighting for. On no fewer than seventeen occasions, which is about as many discrete cases McLennan presents throughout the book, she recounts herself asking the one question defence lawyers should never ask their clients: ‘Did you do it?’ It is no surprise that she is constantly entering pleas of guilty on her clients’ behalf. (Decent defence lawyers assess the strength of the evidence against their clients as contained in briefs prepared by police, then advise their chances of succeeding should they plead not guilty.) On one occasion, McLennan enters a plea on behalf of a woman for shop theft knowing she is already on a suspended sentence for similar offending, and is then scandalised when the woman is jailed – but only until McLennan’s mother expresses compassion for a woman who was simply trying to feed her homeless friends. ‘Mum, don’t be too sorry for her,’ McLennan recounts. ‘She did steal.’ Herein lies the book’s identity crisis. Is its author a young activist lawyer horrified by the state’s treatment of its poorest, most marginalised citizens, or a newly appointed magistrate who must build the public’s faith in the courts? Saltwater demonstrates why most lawyers who pass through Aboriginal legal services (ALS) and who have something useful to say don’t write books like this. In memoir, the author is necessarily at the centre, and it is difficult to accept that the universe of abject poverty, structural alienation and breathtaking racism revolves around the lawyer’s star. When ALS lawyers write, they traditionally write policy, or textbooks, or essays. But McLennan has no problem presenting herself as the star of her own narrative. Her colleagues are drunk, clueless, lazy, unhelpful, incompetent, sleazy or absent; McLennan, however, is always calm in a crisis, brave at the bar table, ethical, moral, strategic, committed and great with traumatised kids. Saltwater may read like a novel, as its reviewers suggest, but its protagonist has no flaws. At least, none that she is aware of. The case that most animates what emerges quickly as McLennan’s saviour complex is that of eleven-year-old Olivia, an extremely traumatised child who gets nourishment and attention by stealing food and trading sex. With Olivia arrested time and time again, it soon becomes clear that there is no case into which the young lawyer pours more emotional energy. When she stumbles across the girl in youth detention (after an incompetent colleague failed to apply for bail), McLennan makes urgent phone calls to list an application within the hour. When McLennan learns that Olivia has been trading sexual favours for drugs on Palm Island, she properly resolves to ensure the girl is moved to the mainland with her mother. Knowing this, it is difficult to comprehend McLennan’s apparent failure to act after a magistrate callously returns Olivia to Palm Island under court order. McLennan stands up in court and explains why the order is inappropriate. But when the magistrate leaves the bench in a dramatic flourish … nothing. ‘He can’t do this, can he?’ asks Olivia’s child safety worker. ‘Yes, I think so,’ is McLennan’s response. Where is the attempt to re-list the application during the afternoon, when the magistrate has calmed down? Where is the effort to gather evidence of the past abuse for judicial reconsideration? Where is the review in the District or Supreme courts? Where are her efforts to check in on Olivia’s welfare, most appropriately through field officers? Instead, McLennan waits a week and then learns that Olivia has endured just about the most horrific abuse imaginable. When the magistrate again refuses to vary Olivia’s bail, McLennan takes it no further. Olivia is then temporarily rescued by a combination of benevolent state agents – child protection and police officers who don’t enforce the court’s order, and prosecutors who act urgently to resolve Olivia’s outstanding criminal matters. The ‘epic fight for justice’ of the subtitle is a matter McLennan encounters early in her time at the LAS. Four Aboriginal teenagers are charged with murder after a white man is found bashed to death in a Townsville cemetery. McLennan uses the case as her literary spine, to give Saltwater a narrative structure, but she would have been better off avoiding it entirely. As presented through McLennan’s own prose, the case does little more than demonstrate the young lawyer’s prioritisation of emotional outrage over evidentiary analysis, and a disturbing absence of the latter in the contemporary writer, now a magistrate. It is 234 pages between McLennan’s initial encounters with the four boys and the arrival of the committal brief. In that time she whizzes about like a firecracker gone haywire, convinced on nothing more than her own conviction of the children’s innocence. The case is set up as a Grishamesque quest amid a shadowy official conspiracy: ‘I think they’re innocent … Someone has to find the truth.’ As she rushes off on futile cemetery reconnaissance missions, alibi operations and very questionable client interview exercises, the reader is forever left wondering why she doesn’t simply deal with the evidence against them. The resolution – spoiler alert here, but I will assume most people who were going to read Saltwater have done so already – involves McLennan diagnosing one of the boys as a psychopath and then pressuring him to plead guilty to ‘save’ the other three. Utilitarian ethics may determine that outcome to be the best, all things considered, but legal ethics are definitively not utilitarian. McLennan couldn’t have known what really took place at the cemetery. At the point she began to sense a conflict between the boys’ versions, she had a professional responsibility to refer the ‘psychopath’ to another lawyer. She eventually did, but not before intervening to arrange the outcome. In an ABC interview published soon after the book appeared, McLennan claimed Saltwater was ‘really a book of questions’ and she didn’t have an answer to the problem of youth crime. ‘The book is not trying to criticise anybody,’ she said, although it criticises nearly everybody. ‘I have simply shown the truth so [readers] can make their own decisions.’ These claims betray either dishonesty or a breathtaking lack of awareness. In the absence of any real reflections about the systems – colonial, political, structural, economic – that might illuminate the social problems that confront her, McLennan falls back on a deeply inadequate, exploitative liberalism. She is constantly looking for someone to blame. Ultimately, this search ends in paralysis. McLennan likes to think of herself as an activist for change, but her character in this account doesn’t demonstrate much of that. An activist would be energised by the rights – legal, civil, social and cultural – of her clients, but Saltwater spends very few words on the politics of inequality or race relations. She touches very briefly on the towering issues of race and racism, but only to whitesplain to her Aboriginal colleagues that ‘the police aren’t racist’ and, later, to wonder whether a police officer who assists her would have done so had she been black. She does concede that her colleagues’ experiences of police are different – ‘well, we black, we prob’ly know better ’en you’ [sic] – but her own view is ultimately reinforced by a drunk (presumably white) barrister who, as a former prosecutor, has the authority to declare that ‘most cops aren’t racist’. There is no activism in Saltwater. But there is a lot of martyring and a lot of saving. Inevitably, McLennan’s saviour complex leads her into the fallacy – repeated with tragic effect across generations – that the solution to social issues lies in even greater government intervention. There is no better illustration of this than when she encounters a neglected child under a tree. McLennan scoops the baby up and demands that either the child safety worker or the police officer present ‘do something’. The child safety worker first ‘shrugs’ and then explains, ‘Our policy is Aboriginal babies go to culturally appropriate homes. But there aren’t enough at present. If we start putting black babies in white homes we’ll be accused of creating another stolen generation.’ (This conversation almost certainly didn’t take place – child protection workers don’t make such casual admissions to ALS lawyers – and is likely one of many instances of literary licence McLennan uses to make her points.) McLennan would no doubt defend her decision to recount this twenty-year-old episode by pointing out that the decision to leave that child in such circumstance was self-evidently wrong. But to do it in the way she does ignores all the contemporary implications. In a little more than two pages, she manages to cast aside the cultural devastation caused by separating generations of children from their parents; undermine the Aboriginal and Torres Strait Islander Child Placement Principle fought for so furiously since the 1970s and adopted by all states in 1984; ignore the evidence that demonstrates the benefits of that principle; disingenuously claim aloofness from current child protection practices that ignore the principle more often than not; and ignore the terrible realities of what so often happens to removed children themselves. ‘I hope [politicians read Saltwater] eventually because I wanted to show exactly what’s happening, to give them the information and therefore the power to reach some real solutions to the problem,’ she told Guardian Australia in 2017. But therein lies one of Saltwater’s dangerous deceits: there are many similarities between the social problems decimating Aboriginal communities in 1995 and now, but there are also significant differences. A legislator who reads Saltwater now and concludes child safety cases are still regularly prosecuted in the way McLennan recounts would be making a dangerous error. While McLennan’s views are to be implied from the text of Saltwater, they are easy to find elsewhere. In August 2017, McLennan delivered a speech at the Sir Harry Gibbs Law Dinner at UQ’s Emmanuel College during which she espoused ‘five reasons we fail’ Aboriginal people. (Gibbs was Chief Justice of the High Court for much of the 1980s and was no beacon of Aboriginal rights. He dissented from the majority that found the Racial Discrimination Act lawful in Koowarta v Bjelke-Petersen, became president of the arch-conservative Samuel Griffith Society and was a staunch monarchist.) In line with her conservative liberalism, McLennan made no mention of the institutional racism, extreme poverty, structural inequality and lack of political agency that continue to bedevil too much of Aboriginal experience in Australia. Instead, she advocated the withdrawal of welfare benefits; greater intervention by child protection and police authorities; the removal of alcohol; the closure of remote communities; and the need to ‘move on’ from the guilt associated with the Stolen Generations so as to ensure greater removals of Aboriginal children. A running theme of Saltwater is that McLennan’s former employer, the LAS, was run by a corrupt Aboriginal executive. In the book’s afterword, we learn that the LAS has ‘since gone into liquidation and has been deregistered.’ But nowhere in Saltwater do readers unfamiliar with this field learn that its service is now provided by the community-controlled Aboriginal and Torres Strait Islander Legal Service (ATSILS). Nor does the casual reader learn that ALS services are provided around the country by organisations that are accountable to both the federal attorney-general and their own executive boards, run by senior Aboriginal and Torres Strait Islander directors. Instead, McLennan is content to let her account of corrupt leadership sit, decontextualised and unexplained, so that uninitiated readers can assimilate it with what they do ‘know’, which is likely to be John Howard’s narrative around the Aboriginal and Torres Strait Islander Commission (ATSIC), which he formally disbanded in 2005 on the basis of his belief that Aboriginal people can’t run their own organisations. In The Colonial Fantasy (2019), Sarah Maddison, co-director of the Indigenous Settler Relations Collaboration at the University of Melbourne, argues that ‘white Australia can’t solve black problems’ because those problems were created, sustained and augmented by non-Aboriginal churches and governments – arguably well-intentioned but certainly ignorant – and by non-Aboriginal ‘settlers’ who violently ‘liberated’ Aboriginal peoples from their economic and spiritual resources, including their land. For Maddison, the courts are centrally implicated in the ongoing colonial project, one that sees more and more Aboriginal men, women and children locked up for relatively trivial offences while systematically ignoring the cultural laws that govern their communities. Saltwater and its author’s later public interventions are replete with a ‘colonial fantasy’. Indeed, McLennan’s views dovetail neatly with those of John Howard and Mal Brough, the political architects of the 2007 Northern Territory intervention. It is precisely because the intervention imposed greater state surveillance and restrictions on freedom, failed to address structural factors, and was designed independently of the communities themselves, that it has further entrenched and enhanced existing social problems, rather than fixing them. Saltwater’s literary and commercial success may invite the conclusion that its reactionary politics were condoned by most reviewers and by the QLAs. I suspect they were simply missed, with readers distracted by McLennan’s vivid and shocksploitative descriptions of her clients and their lives. It is difficult not to conclude that Saltwater’s main success is to authorise readers (mostly middle-class and non-Aboriginal Australians) to confirm their received assumptions about Aboriginal communities, and to cast aside as irrelevant the history, structures, policies and racism that has led us to this point. This is the default approach to ‘Aboriginal affairs’ in Australia, and is the one that governs practically all government responses. The influential late communications theorist George Gerbner observed fifty years ago that the primary impact of popular texts is to reinforce, rather than challenge, existing structures of power. It is the shocksploitation that allows readers to experience McLennan’s story as ‘new’ and ‘brave’ while having their prejudices affirmed – prejudices apparently so deep and so unconscious that they look like benevolence. And there is racism, by the bucketload. Saltwater contains just about every vicious stereotype that has ever been ascribed to Aboriginal people. There is even a first contact fantasy during which ‘little dark faces’ peer ‘from the bushes’ before their bodies are seen ‘creeping forward’ while ‘shyly glancing from under long, black, lowered lashes’. References to a thoroughly Orientalised ‘blackness’ abound. The othering extends to the use of language. Not once does McLennan attempt to learn anything about the peoples among whose communities she works, or about the languages they speak; she never even mentions interpreters. Instead, she is content to present her Aboriginal characters as speakers of incompetent English. There is one teenage boy who cops the brunt of McLennan’s ridiculous and nasty prose in Saltwater. ‘His features are slightly off, his looks unusual,’ she writes. His ‘eyes are cold as he stares through narrowed slits’. She goes further, recalling an encounter with a snake on Magnetic Island. ‘Its head, facing me, was raised a foot in the air. It’s [sic.] cold, emotionless eyes riveted on mine. Frozen, I faced down the snake. Then, its head dropped entirely – and with great force it rose several feet in the air, standing almost on its tail till it suddenly flung itself at a nearby bush.’ (No snake behaves in this way on Magnetic Island, so this is either an exaggeration for literary effect or a distorted memory.) Then: as the boy’s ‘eyes bore into mine, I recognise that snake-eye look and feel the same thrill of fear.’ The reptilian analogy for psychopaths is one that is as common to popular culture as it is scientifically discredited. So are the animalistic analogies, but that doesn’t stop McLennan’s ‘characters’ from baring teeth, snarling, curling their top lips, and making ‘a sound, deep in his throat. It’s like a growl.’ McLennan told the ABC soon after Saltwater was published that she aimed to ‘show real kids and how they really suffered’. But this is her deep deceit: there are no ‘real kids’ in Saltwater. There are stereotyped wretches trapped in McLennan’s gaze. As one reviewer on the popular Goodreads website notes, a writer ‘would need to be pretty ignorant of the history of race relations in Australia to be unknowingly or unwittingly stumbling into the comparisons with fauna.’ There are plenty of memoirs that recount white writers’ observations of Aboriginal disadvantage without resorting to racist tropes, including Kim Mahood’s Position Doubtful (2016) – nominated for a QLA in the same year as Saltwater – and Henry Reynolds’ Why Weren’t We Told? (1999). Why did McLennan need to go there? And how did publishers, reviewers and QLA panels allow her to? It is relatively rare that much is known about magistrates’ political views, philosophies or biases. Lawyers who appear regularly before them make educated guesses – but guesses they remain. McLennan, however, has documented her deeply conservative liberalism, her belief in the virtues of state intervention and the lack of value she places on history, structural inequality or Aboriginal cultures. Were I a lawyer practising in Innisfail, where McLennan sits, I would be thinking hard about whether to subject to her judgement a client who wants her child returned from state ‘protection’, or who requires a magistrate to appreciate some cultural context to his offending, or who ‘looks like a baddie in a film’, which is how she describes one client. There is evidence McLennan has already carried her policy views onto the bench: in August 2016, just before Saltwater was published, McLennan achieved minor notoriety in Cairns when three of her recent sentencing decisions for grog-running (one of the ‘evils’ she identifies in the book and the Gibbs dinner lecture) were overturned on appeal because they were manifestly excessive. But throughout Saltwater, McLennan lends weight and justification to a standard policy response that has decimated Aboriginal communities in Australia, and continues to do so. As a Baptist, McLennan would know the destination of the road paved by good intentions. But if modern Australia has learned one thing about race relations, it is surely that good intentions aren’t nearly good enough. They were what drove churches to establish the missions, governments to send in the protectors and welfare departments to remove the children. In recent times, they drove Colin Barnett to demand that Western Australia’s remote communities close, and Howard to send army tanks into the Northern Territory. If McLennan knew anything about land rights or the homelands movement, she wouldn’t dismiss Aboriginal communities as too remote. If she knew anything about the history of policy failures that burn through race relations in this country, she wouldn’t have written Saltwater. But if non-Aboriginal Australians could recognise our ‘colonial fantasy’, we wouldn’t have published it and we wouldn’t have endorsed it. Read the rest of Overland 237 If you enjoyed this piece, buy the issue Or subscribe and receive four brilliant issues for a year Russell Marks Russell Marks has worked as a criminal defence lawyer and academic. He is an honorary associate at La Trobe University, and author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 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