Chapter 7 argues that law’s framing of accountability results in an inevitably partial and fractured picture of wrongdoing for historical abuse. The chapter argues that despite a focus on accountability for historical child sexual abuse, non-sexual historical abuses, especially those authorised or ignored by law, struggle to achieve modern-day legal accountability against individuals, institutions, or states. Law’s claim to sovereign authority is unable to comprehensively address historical-structural abuses, which may challenge the legitimacy of the legal order created by states and churches. The chapter considers these challenges in the context of accountability mechanisms, including criminal prosecutions, civil litigation, and the use of canon law.

This chapter contests the prevailing interpretation of the post-Mabo turn as a decisive new era in Australian cultural history. While the Mabo High Court decision of 1992 was an important milestone in struggles for Indigenous land rights, the insistence on this date as a literary periodization neglects the continuities in settler culture that still structure settler fiction in Australia. Alternatively, recent First Nations fiction suggests possibilities within and outside dominant paradigms of legality.

Australian land law can now only be viewed through the prism of Mabo’s reframing of the history of land law to include First Nations’ law within its purview and to bring it and the colonising land law into relation with each other. Thus Mabo (and Wik) provide the framework for this chapter. The arrival of a foreign, colonising power in 1788 disrupted the complex systems of First Nations’ land law that had covered the Australian continent for millenia. The baggage of English land law including the feudal doctrines of tenure and estates became the law of the land and operated to dispossess but could not destroy First Nations’ land law and relationships. By the mid nineteenth-century, unique and significant departures from English land law and feudal doctrines emerged, reflecting the particular social, economic and geographical environment of the colonies: for example, the creation of pastoral leases, development of Crown reserves, the regulation of mining by way of leases and licences distinct from the common law and the creation of the unique title by registration scheme by Robert Torrens. Mabo’s reassessment of this “peculiarly Australian land law freed the law of some of its common law feudal origins, particularly by redefining the nature of Crown title. Paradoxically it also reinstated the prominence of the doctrines of tenure and estates as the land law’s “skeleton of principle” which remains the major impediment to a truly Australian land law.

Since the 1960s, Australian law has responded to the dispossession of Indigenous peoples. Most States and Territories have land rights legislation. These schemes vary, for example in their reliance on claims processes, administrative transfer and statutory vesting for returning land into Indigenous hands. In general, they confer robust property rights (often freehold) and a strong say over mining and development. The concept of native title emerged from the common law decision of the High Court in Mabo v Queensland (No 2) in 1992 and is regulated by a complex federal statute. The capacity for native title to deliver on Indigenous expectations has been influenced by court decisions in key cases, about what groups must prove in order to win recognition, what rights they obtain, what rules apply to the extinguishment of native title and what constitutes ‘just terms’ for dispossession. Governments have also affected developments, as authors of policy and legislation, and as respondents to Indigenous claims in courts and tribunals. Achieving greater land justice from native title and statutory land rights will require governments to adopt a longer-term strategic focus that emphasizes Indigenous empowerment and self-determination.

Captain Cook claimed possession for the British Crown of what he called ‘New South Wales’ at Possession Island, Cape York (now Queensland) on 22 August 1770. British colonisation of Aboriginal lands, then a part of the European colonisation of the continent, began in January 1788.

After the chronic political instability that marked the conservative collapse and then the feverish pace of the truncated Whitlam regime, the ensuing years present an outward appearance of equilibrium. Between 1975 and 1991 there was just one change of government, and two prime ministers held office for roughly equal terms. Both in their own ways were striving for the security the electorate desired, and both held to the middle ground. Yet in the circumstances that now prevailed there could be no security without upsetting the ingrained habits of the past. One prime minister preferred confrontation and the other consensus as the way to bring change, but the changes were never sufficient. There was always a need to go further, to abandon yet another outmoded practice and make additional improvements. The first of the leaders was Malcolm Fraser, who headed a Liberal–National Country Party coalition from 1975 to 1983. In 1983 the voters rejected him for a new Labor leader, Bob Hawke. Both leaders searched for solutions. In the absence of older certainties, governments sought to restore national cohesion and purpose. Most of all, they tried to repair an economy that no longer provided reliable growth and regular employment.