Foucault and Family Relations: Governing from a Distance in Australia 9781498559706, 1498559700

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Foucault and Family Relations

Foucault and Family Relations Governing from a Distance in Australia Malcolm Voyce

LEXINGTON BOOKS Lanham • Boulder • New York • London

Published by Lexington Books An imprint of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 6 Tinworth Street, London SE11 5AL Copyright © 2019 by The Rowman & Littlefield Publishing Group, Inc. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Voyce, Malcolm, author. Title: Foucault and family relations : governing from a distance in australia / Malcolm Voyce. Description: Lanham : Lexington Books, [2019] | Includes bibliographical references and index. Identifiers: LCCN 2019016297 (print) | LCCN 2019018518 (ebook) | ISBN 9781498559706 (Electronic) | ISBN 9781498559690 (cloth : alk. paper) Subjects: LCSH: Families--Australia. | Sex--Australia. | Australia--Race relations. | Foucault, Michel, 1926-1984. Classification: LCC HQ706 (ebook) | LCC HQ706 .V69 2019 (print) | DDC 306.850994--dc23 LC record available at https://lccn.loc.gov/2019016297 TM

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

This work is dedicated to my late brother Graeme George Voyce (1938–2013) Piopio Farmer

Contents

Acknowledgments Introduction: The Background to this Book and the Relevance of Foucault 1

The Social Context of Farming

2

The Dispossession of Aboriginals from Land: An Application of Foucault’s Theories on Race and Sexuality Property and the Governance of the Family Farm Divorce Judgments and “Spatiality” and “Sexuality” Governing at a Distance: The Role of Trusts in Structuring Family Life in Rural Australia Towards a “Family Provision Jurisprudence”: A Case Study on Farming Inheritance Cases Property, the Formation of the Pioneer State, and the Working of Power in Rural Australia Governing the Rural Family in Australia from a Distance: The Family Provision Act and the Role of “Expert Knowledges”

3 4 5 6 7 8

Bibliography Index About the Author

ix 1 21 35 47 69 83 113 135

155 175 205 209

vii

Acknowledgments

Many people assisted in various ways with this project. In the first instance, I acknowledge the funding of the Rural Industries and Research Corporation, who provided the original support for the research. The outcome of this work was published in Gamble, Blunden, Kuhn-White, Voyce, and Loftus. 1 This work had another impetus from my doctoral thesis, which was supervised by Mitchell Dean. His great patience and insight into Michel Foucault contributed greatly to this work. Finally, many of my colleagues at Macquarie University, present and past, helped in various ways, including Bruce Kercher, Rosalind Croucher, Archana Parashar, Iain Stewart and Francesca Dominello, to name but a few. I also thank Richard Smith and Tara Voyce for editing work. NOTE 1. Dennis Gamble et al., “Transfer of the Family Farm Business in a Changing Rural Society,” Rural Industries Research and Development Corporation, Research Paper 95/8, 1995.

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Introduction The Background to this Book and the Relevance of Foucault

This book began with a project on rural inheritance and divorce in Australia. During the course of this research, many farmers were interviewed to discover why families were not able to complete successful transfers of family farms to the next generation. A common sentiment among families was the desire “to keep their farm in family hands” and to continue with a line of male succession. Underlying property division were implicit evaluations concerning the contributions of each respective family member. As Jack Goody has argued, splitting up family property splits up people. 1 As the project developed, several research questions were formulated. Firstly, what was the role of law in assisting families seeking to complete an intergenerational transfer of the farm? This was important, as family conflicts were often resolved through an interpretation of legal decisions or what has been called “bargaining in the shadow of the law.” 2 A common approach when helping people with legal disputes is to provide them with an analysis of the law. Rather, this work seeks not only to provide legal analysis on family law matters but also to examine how the law incorporates different forms of argument about rural society. My objective is to ask, “how does law accept or reject rhetorical forms of argument about rural values and family work?” Here reference is made to arguments by litigants about the value of looking after parents, the importance of ancestral property, the sacrifice of farming sons’ working on farms for many years with minimal rewards and the rightful expectations of off-farm children. Secondly, research to date has well described the policies that various governments in Australia have taken in dealing with issues such as population decline, mental health, prostitution, the age of consent and sexual violence. Some scholarship employing a Foucauldian approach has already connected these concerns to ideas of “sexuality,” but further exploration will bear fruit. The reason for this connection is that marriage relations and their implicit sexuality function as a means of managing populations, promoting some ways of life whilst denying or obscuring others. 3 1

2

Introduction

Sexuality may be seen as a multi-faceted interface, one that connects or links many ideas about pleasure and physical sensation to knowledge and politics. 4 The expression “deployment of sexuality” connotes the way sex has been used to make connections between sexuality and notions pertaining to the welfare of the population and political economy. 5 What constitutes sexuality in any particular situation is contingent upon the kind of concepts that were relayed through it or the social structures that try to organize it. 6 My concern is to link sexuality to ideas of space, race and economics in the context of property inheritance in rural Australia. Thirdly, given the proliferation of discourses about the respective roles of men and women and females on family farms the question arises as to what role “sexuality” plays in the spatial allocation of farms. In other words, do the forms of legal discipline, together with state intervention, help us compile what may be called a “sexual geography of rural Australia”? I later examine how farm properties are spatially determined with males participating in one form of work and females in another. Fourthly, given the great distances in the Australian landscape and the isolation of rural farms from each other, the issue arises as to how successive governments (imperial, federal and state) encouraged economic activity and regulated a rural society based on family farming. In other words, “how did the centralized state rule from a distance, where proximity between state officials and subjects was not possible?” I later argue how local forms of authority (solicitors, welfare agencies) merged with notions implicit in legal institutions. RELEVANT ASPECTS OF FOUCAULT’S THEORETICAL CONCERNS Michel Foucault (1926–1984) was a French philosopher and historian who was interested in the connections between language, knowledge, power and social control. His most influential works concern histories of madness, the medical clinic, the prison and human sexuality. A consistent theme of his work was the critical appraisal of the growth of the “human sciences,” such as psychology, psychiatry, sociology, penology and medicine. In this regard, Foucault did not set out to undermine those sciences, but rather to examine how such truths become established. 7 His “sociology of knowledge” was not concerned with the actual content of any particular science, but with questions related to whose interests it served. 8 At first blush, Foucault did not seem to express an interest in law. However, on closer examination, Foucault was interested in law as a disciplinary institution inextricably linked to social practice. 9 Foucault argued that law was the principal technology of power from the Middle

Introduction

3

Ages through to the eighteenth century. Law operated within the framework of territorial sovereignty, dictating citizens’ lives through a normative system of prohibitions that created a division between the licit and illicit. 10 However, this juridical code gradually came to be supplemented and transformed by the operation of “discipline,” which became the dominant mode through which power operated by the eighteenth century. This form of discipline operated within the context of specific institutions (such as prisons, army barracks and asylums), intervening at the level of the individual body through corrective training to produce a normalized individual. In Discipline and Punish, Foucault makes clear that this disciplinary power was based on visibility and surveillance, which involved minute regulation and normalization of individual behavior through impartial observation and standardized calculated punishment, including correction of behavioral abnormalities. 11 Foucault contends that the advent of this style of discipline did not make juridical mechanisms irrelevant, but rather supplemented and transformed their operation. Therefore, the rise of discipline meant that penalties for criminal acts shifted from spectacular punishment inflicted against the body to incarceration and individual correction. 12 Foucault also developed the idea that, in the second half of the nineteenth century, a shift took place during which sovereign power was displaced by biopower. This term refers to the inclusion of life and its mechanisms into the realm of politics as an object of specific calculation; what was at stake was not the life of the individual but of large units of population such as races, nations, or even the species as a whole. 13 Biopower became manifest in new legal powers attributed to the state, the right to intervene in order to “let” die, particularly through ideas like genocide, eugenics, racial hygiene and issues associated with racial mixing. 14 Concurrently, other new forms of knowledge developed, such as statistics, economics and demographics; these allowed for measurement and analysis of the conditions of life of the population of a territory as a whole. These forms of knowledge made it possible for the population to be conceived of as a singular living organism with a particular set of biological characteristics, including “propagation, births and mortality, the level of health, life expectancy and longevity, with all the conditions that can cause these to vary.” 15 I call these sciences “professional disciplines” to distinguish them from the minute forms of surveillance and verification procedures found in the regulations in organizations such as the military or the asylum. In his lecture entitled Governmentality, Foucault argued that the idea of government began to emerge as a central problem in the political literature of the West in the sixteenth century. The essential issue in these works was the introduction of economy into political practice. 16

4

Introduction

This idea of governmentality is useful because it provides an indication of a facet of government not normally concerned with formal rule. This concept brings into play the idea that the role of government is to rule through guiding the action of subjects, in order that they might govern themselves. 17 Under this approach, government consists of a range of calculated, rational techniques (including devices) and knowledges to shape the conduct and desires of citizens in line with definite ends, which may change over the course of time. 18 The governmentality approach encourages us to consider how rural society was governed through discourses and techniques where the direct application of force was impractical. More especially, we may ask, how did the centralized state rule from a distance, where close proximity between state officials and subjects was not possible? To address these questions, this book contends that the allocation of land in individual lots allowed the state to govern farming families through a nodule of power based on the family farm, namely a “property device.” This idea enables us to see how the notion of “fidelity devices” (such as accountancy forms, surveying procedures and accountancy calculations in trust law) maintained stability in family life where direct contact was not possible. As regards the “property device,” imperial policy saw the need to create a form of property ownership based on small land holdings, as it was believed this would best meet the need for security for landholder and investor alike. It was considered that the most efficient way to do this was to allocate land to free subjects. 19 This process necessitated legal and technical devices such as the “device of property” and the various ways it could be held. FOUCAULT AND FAMILY GOVERNANCE So far, I have traced some aspects of Foucault’s intellectual development. I now canvass some of his key concerns. Here I refer to a range of topics relating to “the family,” such as “sexuality” and “territory,” “governmentality” and “law.” These concepts must be understood in relation to each other. For example, the idea of sexuality needs to be understood in relation to another set of ideas pertaining to power and discourse. Foucault’s ideas on the family indicate how we might proceed to show how notions of the family were constructed and how families might be governed. Thus, a Foucauldian approach entails analysis both of how ideas of the family were discursively produced and how the family was a product of a disciplinary society. Foucault saw the family as a social unit that expressed sovereign power where norms internal to the family could be enforced. At the same

Introduction

5

time, he argued that the family governed itself to conform to external norms such as those contained in what Foucault called biopower. Firstly, Foucault regarded the family as a sovereign power that held rights over its members. As regards the family as a “sovereign cell,” in Psychiatric Power Foucault argues that the family is and remains a sovereign institution. “It seems to me,” he states, “that the family is a sort of cell within which the power exercised is not, as one usually says, disciplinary, but rather of the same type as the power of sovereignty.” 20 He goes on elsewhere to say that while we may theorize the family as disciplinary, it is actually sovereign. “[F]or my part,” he says, “I would put the functioning and microphysics of the family completely on the side of the power of sovereignty, and not at all on that of disciplinary power.” 21 I argue that Foucault here correctly recognizes the importance of power structures within the family as they operate as a force of governance internal to the family. Secondly, Foucault argued that while the family may be regarded as a sovereign institution, its power has been diluted over time. This is the case as the family has been infiltrated by the disciplines and co-opted by biopower in “supplementary” ways. 22 These “disciplines,” together with legislative reforms, have been called the “psy-interventions”: they have acted to modify family behavior, where families began to internalize social norms on issues such as education, health and mothering. These interventions put the family in a position where it becomes in its own interests to conduct itself according to social norms in matters such as education and raising children. 23 In Donzelot’s terms, regulating the family functioned as a kind of “governing through freedom,” a productive rather than an oppressive power that incited self-adjustment and presupposed a certain agency in families to act in their own self-interest. 24 A contrast may be made between sovereign power and disciplinary power, and the question naturally arises about how they operate together. While sovereign power is backward looking, disciplinary power is conceived as future-orientated, supplementing backward authoritative rituals with graduated exercises that aim at an optimal state via disciplinary measures. 25 In Psychiatric Power, Foucault argues that although the family has been invaded with new technologies, sovereign power continued to play a “collaborative role” with disciplinary society. This “collaborative role” was necessary, as sovereign power provided the means to insert individual members into disciplinary practices, such as going to school or to work. 26 The family thus worked as a hinge or “switch point” as it had a double role between the spaces of disciplinary and sovereign power, “pinning individuals to disciplinary systems and linking up disciplinary systems and circulating individuals from one to another.” 27 Such an approach to

6

Introduction

the family shows how internal authority within a family unit reinforced such measures. Therefore, external disciplinary institutions relied on familial bonds of obligation and patriarchal authority to support their goals. SEXUALITY AND SPACE Foucault demonstrated that “sex” was a natural fact, grounded in the functioning of the body and hence something that lay outside of history. “Sexuality,” by contrast, was a cultural production because it represented the appropriation of physiological capacities by ideological discourse. 28 For Foucault, the nineteenth century saw the emergence of the analysis of population as a focal point for the analytics of sexuality, which has two different emphases. Firstly, he argued that sexuality had become the focal point for the production of truth; secondly, the emphasis of a particular kind of sexual praxis functioned as a basis for gathering information on populations. Several features about the discursive construction of sexuality and its imbrication with “space” will be explored. I start by enunciating Foucault’s rejection of the Victorian repressive theory about sex. Foucault argued that, far from being repressed, matters of sex in the Victorian era were animated by a multiplicity of discourses. Beginning in the eighteenth century, there was a steady proliferation of discourses on sexuality as there was “an institutional incitement to speak about it” and it was explicitly articulated in “endlessly accumulated detail.” 29 Foucault wrote about the European metropole and did not concern himself with those colonial laws that governed sexuality. However, while his work did not contain an analysis of colonialism, his work has proved to be a central reference for postcolonial analysis. 30 Several scholars have argued that sexual practices and associated socio-sexual institutions, ranging from governance of prostitution to the nuclear family, have structured and facilitated colonialism. The nuclear family, for instance, may be seen not only as an institution for regulating sexuality, but also as a unit of production and consumption that served as the basis of colonization schemes. There are several features of the sexualized space that I want to illustrate in order to demonstrate their applicability to the governance of family farms in rural Australia. Firstly, sexuality penetrates in a comprehensive way local sites such as schools, workhouses, prisons and the family. The deployment of sexuality, Foucault argues, has in fact been active in every social field, “proliferating, innovating, annexing, creating and penetrating bodies in an increasingly detailed way.” 31 Foucault argues forcefully that the family was one of the main sites that brought about “the affective intensification of the family space.” 32 In particular,

Introduction

7

he contends that European sexuality had become confined to the parents’ bedroom: Sexuality was carefully confined; it moved into the home. The conjugal family took custody of it and absorbed it into the serious function of reproduction. On the subject of sex silence became the rule. The legitimate and procreative couple laid down the law. A single locus of sexuality was acknowledged in social space as well as at the heart of every household, but it was a utilitarian and fertile one: the parents’ bedroom. 33

In Foucault’s account of Victorian sexuality, the parents’ bedroom was the place for reproductive sex; simultaneously, the bourgeois home became a private space protected by liberal theory and distinguished from the public realm of politics. 34 Secondly, space was produced by verbal repetition. Wise has argued that territory was produced by song or stories that mark a personal space in the home. 35 Along these lines, Deleuze and Guattari have shown, by relating a story about a child singing to comfort himself, that such singing marks a space and that repetition of a single phrase structures that space and creates a milieu. 36 Foucault detailed the connections between verbal repetition, the body and sex in this way: “the infinite task of telling—telling oneself and another, as often as possible, everything that might concern the interplay of innumerable pleasures, sensations, and thoughts which, through the body and the soul, had some affinity with sex.” 37 Thirdly, “sexualized space” is not evenly distributed across a territory. It coagulates in nodes, producing places that come to be understood as personal, even though others have access to that space. For example, sex may be confined within the confessional or in the therapeutic office. These private spaces are the consequences of the spatial distribution of sexuality. Likewise, it will be shown how the space of the family farm became gendered in certain areas. These distributions of space create a striated territory marked by the incessant whisper of sex. 38 Fourthly, Foucault saw “sexualized territory” as one punctuated by “perverse interiorities.” Foucault showed that “sexuality” encompassed more than reproductive necessity, as sexual perversions became multiplied. This explosion of sexuality became subject to categorization and control as prohibited sexual acts became aligned with the individual citizen and thus subject to examination. 39 The language of implantation suggests the imposition of fixity in a spatial location. Foucault says that this implantation solidified “an entire sexual mosaic” that consisted of discrete “local sexualities,” each stuck to a particular age and place. 40 Fifthly, sexuality is connected to biopolitics and the “geopolitics of sexuality.” Biopolitical rationality links the human body to the body poli-

8

Introduction

tic so that the sexual conduct of the subject becomes the proper domain of governmental action and of governmentality. Sex and sexual behavior became biopolitical issues as it was thought it was essential for the government to know what was happening to its subjects. 41 Clare concludes: In Foucault’s work, the territory of sexuality’s deployment is filled with the incessant whisper of sexualities that coagulates in particular nodes. It is cross-hatched by infinite lines of visibility and touch and punctured by the externalizing depths of sexual identities. Although it may appear that Foucault’s analysis of sexuality moves the discussion of biopower away from a concern with space, place, and territory, in effect, The History of Sexuality maps a social geography of sexuality. 42

Finally, Foucault refers to “the deployment of alliance” and “the deployment of sexuality.” It is important to understand what is meant by the first of these expressions. As regards the deployment of alliance, Foucault argues that older societies had a system of marriage, fixation of kinship ties, and transmission of names and possessions. What Foucault called the “deployment of alliance” describes sexuality in a period when it was tied to the significance of blood, rather than the constitution of identity. In this situation, the permanence of marriage and patrimony under the system of primogeniture would be threatened should the bloodline be diluted. 43 In Psychiatric Power Foucault explains how sovereign power is recognized in the way it manifests in particular individuals, such as the king or the prince. 44 Of relevance to my approach to inheritance, Foucault recognizes the distinct nature of sovereign power as grounded either in “blood right or blood conquest.” With such sovereign “power” there was always a “founding precedence,” situated in the past through the authority of blood right and individualized power, particularly via the role of the patriarch standing at the family helm. 45 Foucault was referring here to European dynastic family forms where marriage was an economic partnership that functioned as an alliance between families and kin groups, furthering social and economic ties. Lawrence Stone reminds us that the affective, procreative and companionate aspects of marriage were only of secondary importance. In this context marriage acted as the most important vehicle for the transfer of property, which was more important than purchase or sale of property. 46 In this context, it is notable how judges in many cases considered the importance of males holding family property to ensure continuity of the farm within a male line of succession. We might recall how Foucault noted the existence of an alliance between sexuality and what he called the “deployment of the alliance.” 47

Introduction

9

THE CONNECTIONS BETWEEN FAMILY, SEXUALITY, AND RACE This book deals with family farms and the intricacies of family relations, and hence concerns about race in this context may initially seem inconsequential. However, when it is recalled that European colonization of Australia was built on the decimation and continued discrimination of Aboriginal society, it is appropriate to consider the role of racial attitudes amongst family farmers, even within recent times. At first glance, the issue of race seems to be strangely absent from The History of Sexuality. However, a more attentive reading shows that race was one of Foucault’s concerns, as seen particularly in some of his later lectures. 48 Stoler’s examination of The History of Sexuality has made the argument that sexuality and race were more central to Foucault’s thinking than has otherwise seemed to be the case. She argues that references to racism in The History of Sexuality “are neither incidental nor perfunctory but carefully signposted in each part of the book,” and that while such references are sparing, the broad concept is in fact central. 49 Foucault’s account of race is well suited to the “polyvalent mobility” idea of race, namely that the concept is continually shifting or being reinscribed. 50 Foucault has also offered an account of race that can be applied to those considered “abnormal.” It is possible to extract from The History of Sexuality a Foucauldian view on race that has relevance for both family farming relations and relations between settlers and indigenous people. This proposition can be developed through several steps. I refer to Stoler’s work and provide illustrations of her interpretation of Foucault in the Australian context. Firstly, Foucault, as I have indicated, argued that modern states developed a family agenda. State apparatus became increasingly concerned with governing the household, the correct manner of managing individual’s goods and wealth within the family, and of making family fortunes prosper. 51 The family was also regarded as a convenient vehicle for other agendas concerning population, reproduction, inadequate mothering, and the proper administration of assets. 52 Secondly, the importance of the family may be seen in Foucault’s description of the four discursive figures that operated within the strategies contained in the organization of sexuality. 53 Foucault identified four great strategic mechanisms of knowledge and power centered on sexuality. These were the masturbating child, the hysterical woman, the Malthusian couple and the perverse adult. 54 For instance, as regards the category of the pedagogization of children, sexuality was a central concern: this was one of the sites where bourgeois culture defined and defended itself because it represented one of the intimate sites where racial lines could be transgressed. These con-

10

Introduction

cerns were also part of a wider concern around fencing off children that would then grow up with the appropriate European sensibilities. As regards the typology of the mother and the hysterical woman, there was clear concern over that figure’s sexuality. The mother was a substantial element in the colonial order of things because she nurtured children and functioned as a norm against which other mothers could be measured. Thirdly, in the settlement of Australia notions of “sexuality and race” were interconnected. Stoler has argued that sexuality and race were pivotal elements through which the state governed “the bourgeois order.” 55 Stoler has also shown how discourses on sexuality at once classified colonial subjects into distinct human kinds, whilst simultaneously policing the domestic recesses of imperial rule. 56 Racism, we may say, was a product of the colonial encounter fundamental to the access of power and property. 57 In answer to the question of how we might incorporate an understanding of race and sexuality into the study of family farm relations in Australia, Stoler suggests that we might add a fifth category to the fourfold strategic unity outlined above. This addition would take the form of the European obsession with the libidinal energies of “Others” (savages, Orientals, and the colored). The perceived body of the Other makes it possible to redefine internal categories in terms of race to meet the biopolitical needs of legal persons, specifically those that bestow property rights, citizenship and the intrusive needs of nineteenth-century states. 58 In Australia, settler colonization was built around European nuclear families as self-governing communities, which in turn were associated with the larger structures of government. The dominant discourse of white settlers was based on white supremacy, patriarchy and heteronormativity, regardless of how successful these ideals were in actuality. Foucault argues that racism is not an aspect of Western society that can be compartmentalized as an aberration, but should instead be seen as an expansive part of the production of sexuality. He was not interested in race itself but rather how its operation presented the foundation of a new art of government. 59 Foucault regards this as developing in two phases. One takes the form of eugenics directed towards the survival of class supremacy. The second phase is directed to control the exploited classes. He concludes that “sexuality is originally, historically bourgeois and that, in its successive shifts and transpositions, introduces specific class effects.” 60 Young correctly adds by inference that “the same must be said of racism.” 61 We may now rearticulate the idea of the “deployment of alliance” as previously discussed. I connect this concept to the notion of race, not just in relation to the preservation of descent and systems of marriage, but in a wider colonial context. I perceive several relevant aspects of the alliance. Firstly, the deployment of alliance was linked to the maintenance of social stability that defined the licit and illicit. By contrast, the deployment of sexuality did

Introduction

11

not operate through rules or prohibitions but in ways in which the ultimate examination was by examination and regulation. Secondly, the aim of the deployment of alliance was to reproduce both the institution of marriage and the kinship systems. Within these systems, constraints were made on sexual behavior that threatened the maintenance of lines of descent and inheritance. Such laws were concerned mainly with adultery, bigamy, interracial marriage and incest. They had a homeostatic aim and function: to reproduce the body in the same form. 62 Thirdly, Foucault makes clear that the deployment of alliance and the deployment of sexuality worked in tandem. Crucially, the deployment of sexuality was superimposed on the deployment of alliance. The deployment of alliance operated differently in that the reproduction of past structures was not its goal; by contrast, the deployment of sexuality seeks to monitor the sensations of the body and the quality of pleasures. 63 Fourthly, the deployment of alliance has not been completely eclipsed as it is still at work. As Foucault says, the deployment of sexuality has not supplanted the deployment of alliance but it has “neither obliterated it or rendered it useless.” 64 While Foucault’s comments may have been applicable to the kind of feudal land tenure that existed in England, these features of family life were not transferred to Australia, as this country never had dynastic forms of family. 65 However, in reading Foucault’s descriptions of dynastic families, we note that wealthy pastoral families may have exhibited some of the features of the deployment of alliance. These families relied on a strong tradition of the eldest son inheriting the farm after working on the land for many years, coupled with the idea that daughters would be provided for, assuming they married well. This narrative worked to suppress labor of daughters and therefore their possible inheritance of family property. CONCLUSION I refer to the research questions that underpin this study. These questions interrogate the role of law, the importance of sexuality, the role of space in the allocation of people, the role of economics (discussed later), and finally, the issue of governance at a distance. While this work is initially concerned with explaining some of Foucault’s main theories, it is ultimately more interested in deploying his ideas to shed light on rural farming families and property relations in an Australian socio-legal context. This may be more in line with how Foucault imagined his theories: he repeatedly referred to his work as a “toolbox” to indicate that his ideas could be used in a variety of ways to examine different issues. Foucault says that he wanted “to write on disci-

12

Introduction

plinary systems to be useful to an educator, a warden, a magistrate, a conscientious objector. I don’t write for an audience, I write for users, not readers.” 66 In line with Foucault’s approach, my objective is not to study the history of the family, or to explain doctrinal areas of law, but rather to work out how the family was constructed and governed through the interlocking of local power networks. This project does so in various ways. Firstly, it seeks to examine the disciplinary role of law, particularly how law constructs the life of its subjects. Before I expound on what Foucault may have regarded as law, two caveats are in order. Firstly, I acknowledge that “law” does not necessarily reflect ordinary activities of everyday life. I make this rather obvious comment as often lawyers mistakenly consider that the law describes a world as it actually exists. 67 Rather than seeing law as a stable domain that relates in some complicated way to society or political economy or class structure, it is more useful to view it as simply the practice and argument about the relationship between something posited as law and something posited as society. 68 Foucault’s view of law has been open to interpretation and some scholars have claimed he was not much interested in law. However, it is argued here that Foucault was indeed interested in law and legal procedures, regarding them as a catalyst for certain modes of investigation and disclosure of truth. As he remarked, “I encounter law constantly without making it a particular object of investigation.” 69 I will argue that while in some instances law may represent a selfenclosed form of internal communication, in some areas it is colonized by the professional disciplines. Secondly, Foucault made various references to the family, or what we may prefer to call coupledom. My objective in outlining some of Foucault’s ideas on the family is to track how ideas of the family were formed and how that entity was managed. Families, real and abstract, served both as objects of intervention and for the production of discourses necessary for the establishment of the colonial state. 70 I take Foucault’s work to be concerned not with a study of the family structure or a history of how the family came to achieve a nuclear form. Rather, like Foucault, I aim to see the family as “that which dominant regimes of truth make; it is precisely a set of practices, real practices, which established it and thus imperiously marks it out in reality.” 71 This work will argue that the family was found at the nexus of a set of internal sovereign relations and disciplinary techniques, which aimed to manage colonial populations. In this context, I examine the internal disciplinary arrangements of rural families to track how the role of family authority worked through obligation, patriarchal will, blood and conjugal ties. 72 I also wish to examine how disciplinary techniques based on

Introduction

13

individualization, categorization and spatial segregation were reflected in a variety of institutional measures, and how they shaped family life. 73 Thirdly, I will argue that colonial rule operated through the regulation of family sexual relations and race. This form of regulation was central to the allocation of economic and social roles. 74 As regards the issue of race such governance was supported by negative attitudes towards non-European peoples, which classified colonial subjects into distinct kinds. 75 In this context, I later refer to dividing practices where certain signifiers created calibrations that separated undesirable practices from that which was deemed acceptable. Fourthly, as regards the spatial aspect of family farming my approach is twofold. On the one hand, I show how disciplines reveal the “partitioning” of the social order. As Foucault notes, these disciplines create fixed positions that are at once architectural, functional and hierarchical, thereby marking places and prescribing values that guarantee the obedience of individuals. 76 Feder notes in her study on American suburbs how this may be “more flexible and more detailed” than enclosures such as the factory, monastery or town. However, Feder notes how American women each night cooked dinner over several million stoves, indicating that specific times and zones were allocated to women in the domestic realm. 77 The importance of her comment is to note how power creates place for the respective genders. On the other hand, it is clear that the forceful colonization of Aboriginal land drove straight lines across native spaces and destroyed indigenous forms of land-based cultures. The use of state authority and modern technologies to disrupt localized communities saw the displacement of Aboriginal people from land and its repossession by colonizers. This dispossession resulted in a certain “placelessness” as lands became a commodity as part of the operation and logic of Australian property law, particularly as a rights-based discourse derived from English common law. 78 Fifthly, this study will focus on intimate relationships between family members and how those connect with larger relations of power. As Oswin and Martin argue, intimate relations are the domain of the microphysics of power because they provide a bridge to larger relations of power. All aspects studied here, including rules as to what constitutes a family with inheritance rights and rules about the sharing of property, connect up with matters of the state and matters of the heart. 79 ORGANIZATION OF THE BOOK Chapter 1 outlines some social features of the family farm, the historical approach adopted in this work, the genealogical method applied to legal texts, and the general view of law adopted in this book.

14

Introduction

Chapter 2 discusses two justifications behind the dispossession of Aboriginals in Australia. One approach, reflected in the work of Patrick Wolfe, is the idea that settlement of Australia was rooted in structures, not events. In this view, the central component of settler colonialism is based on the exploitation and elimination of Aboriginals and their connection with land. The other account is what I call the “narrative of dispossession.” I interpret this account to show how racial and sexual stereotypes were linked to economic ideas about Aboriginals, which justified the notion that Aboriginals should be removed from their lands. Both these approaches are then critiqued in light of Foucault’s ideas about race, sexuality and biopolitics. Chapter 3 describes “property” as a social arrangement that rests on ideas of reciprocity and kin support. It is argued that state agencies govern the family by stimulating ideas of kin support and personal productivity, including through those sciences such as surveying and mapping that underpin the allocation of land. Property, seen as a socio-technical device, allows a degree of local freedom for owners. This is important as it allows the state to stimulate ideas of local freedom to assist in “ruling from a distance.” Finally, I argue how “fidelity devices” incorporated within the notion of property allow the state to establish certainty and predictability of outcome over the distance between administrative agencies and those on the farm. In chapter 4 I examine how scholarship has considered legal decisions as they affect farmers in matters of divorce, inheritance and economic restructuring. Recently, scholars have also considered issues of sexuality and space. However, such studies have not deployed judgments as an ethnographical form of evidence. A contrary position, adopted here, is that ordinary “black letter” judgments may be used as a field site. 80 This chapter begins by making a spatial analysis of the way family farmers arrange their social and physical space on the farm. To this end, it utilizes Foucault’s ideas on the governance of the family, spatiality and economics. Secondly, the chapter deploys legal judgments to show the discursive construction of different social and economic factors that underlie the reasoning of judges. It is argued that ideas of sexuality and economics are embedded in those judgments. Chapter 5 outlines the role of family trusts as vehicles for holding family property. The role of trusts in protecting various members of an estate against bankruptcy and divorce is well known. In particular, the role of life estates has been seen as a useful vehicle for protecting the interests of the widow against the interests of other family members. I use some analysis of a life estate to show how widower inheritors, by contrast, were often marginalized in family rural estates. This chapter on trusts starts with the question, “what is the role of the state in rural Australia?” Through my conception of a “decentered state”—namely how the state rules through an array of devices, agencies

Introduction

15

and techniques—I approach the question of how property, through the trust device, is implicated in governance. I demonstrate this by showing how the role of the trust and accounting procedures shape the administration of the life estate. It is argued that forms of fidelity devices in trusts, together with the income and capital distinction provided by forms of trust accounting, shape the lives of pastoralists in the sense that they have to adhere to the prescriptions of banks and allow male continuity through male inheritance of the farm. Chapter 6 describes the role of Family Provision legislation and how testamentary freedom has been limited by claims that may be made by family members. The chapter concentrates on a review of the claims of farmers’ sons who have worked on the land and therefore expect to receive the farm. The position of other claimants is discussed, including widows and daughters. I conclude that while this legislation was passed to protect dependent widows, it is now being used to give awards to a wide variety of family members. Furthermore, with the eroding of the protection given to farming sons in receiving the largest interest in the farm on the death of the parents, there is a lessening of the notion of testamentary freedom. This chapter attempts to make two contributions to this area of law. Firstly, it describes the nature of this law within the literature on dispute processes. Secondly, it reviews the nature of discretion utilized by judges pursuant to this legislation. The aim is to create what I call a “Family Provision jurisprudence.” Chapter 7 describes the workings of rural power, which, I argue, enforce a particular form of rural patriarchy. One of the core issues of the colonial settlement was what McMichael has described as the issue of the socio-economic class structure of the pastoral industry. 81 Two essential elements of this form of settler capitalism were the role of property ownership and the importance of male patriarchy on family farms. In this context, comments are made on the role of property and family and the flow-on effects for state formation. The chapter is given this focus to demonstrate in local and regional sites how identity and conduct was actually determined. This approach indicates how cultural values of farming are reflected in the culture of the state through administrative apparatuses of power. Through an explanation of the role of the “family” and “property,” it is shown how different discourse and techniques involved with rural life receive endorsement and support within both legal and non-legal forms of power. I outline the direction my argument will take. Firstly, the chapter shows the importance of the family in state policy and how the notion of family is imbedded in ideas of property. Secondly, the role of economics as a form of governance. Economics, it is argued, forms a discipline of productivity through which the family governed the individual and the State governed the family. Thirdly, I show how prop-

16

Introduction

erty, the family and economics were linked to other administrative agencies in a “governmentalization of society.” This chapter concludes that imported English notions of property and personhood provided the basic rules for the settlement of rural Australia. While Australia developed an urban society, the forms of rural patriarchy have remained entrenched in farming communities. However, in recent times since the opening up of the economy, family ideas about property are changing and women are receiving, in both divorce and inheritance cases, more of an equal share. Chapter 8 provides a critique of Family Provision law as regards the formation of such law and its operation in rural Australia. The chapter first outlines forms of family narrative that justify farming sons inheriting family property. Secondly, the chapter describes how court judgments become involved in what Foucault called the “examination” and in a process called “normalization.” Thirdly, the chapter demonstrates how such cases are involved in the governance of rural society and how such cases incorporate “expert knowledges.” NOTES 1. Jack Goody, Joan Thirsk, and Edward Thompson, eds., Family and Inheritance: Rural Society in Western Europe, 1200–1800 (Cambridge: Cambridge University Press, 1976), 8. 2. Robert Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” Current Legal Problems 32 (1979): 950–97. 3. Jessica Cadwallader and Damien Riggs, “Towards a Biopolitics of Marriage,” Journal of Media and Culture 15, no. 6 (2012): 1–6. 4. Michel Foucault, The History of Sexuality (London: Penguin, 1978), 18. 5. Foucault, The History of Sexuality, 26, 69, 140–41, 154. 6. Patrick Fuery and Nick Mansfield, Cultural Studies and the New Humanities: Concepts and Controversies (Melbourne: Oxford University Press, 1997), 181. 7. Gary Gutting, Michel Foucault’s Archaeology of Scientific Reason (Cambridge: Cambridge University Press, 1989), xi. 8. Gavin Kendall and Gary Wickham, Using Foucault’s Methods (London: Sage, 1999), 63. 9. Ben Golder and Peter Fitzpatrick, Foucault’s Law (Abington: Routledge, 2009), xii. 10. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78 (New York: Picador, 2007), 7. 11. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78, 46; Matthew Hannah, “Foucault and Theorizing,” Environment and Planning D: Society and Space 11, no. 3 (1993): 18. 12. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78, 4. 13. Foucault, The History of Sexuality, 143–45. 14. Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976 (New York: Picador, 2003), 256. 15. Foucault, The History of Sexuality, 139. 16. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78, 95.

Introduction

17

17. Michel Foucault, “Governmentality,” in The Foucault Effect: Studies in Governmentality, ed. Gordon Burchell and P. Miller (London: Harvester Wheatsheaf, 1991), 73–86. 18. Mitchell Dean, Governmentality: Power and Rule in Modern Society (London: Sage Publications, 1999), 11. 19. John Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill, 2003), 12–13. 20. Michel Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974 (New York: Palgrave Macmillan, 2006), 79. 21. Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974, 80. 22. Chloe Taylor, “Foucault and Familial Power,” Hypatia 27, no. 1 (2012): 202. 23. David McCallum, “Coercive Normalization and Family Policing: The Limits of the ‘Psy-Complex’ in Australian Penal Systems,” Social and Legal Studies 16, no. 1 (2007): 113. 24. Jacques Donzelot, The Policing of Families (London: Hutchinson & Co, 1979), 169–234. 25. Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974, 47; Taylor, “Foucault and Familial Power,” 202. 26. Taylor, “Foucault and Familial Power,” 204–5. 27. Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974, 81–82; Lauren Martin, “Governing through the Family: Struggles over US Noncitizen Family Detention Policy,” Environment and Planning A 44, no. 4 (2012): 866–88. 28. David Halparin, “Is There a History of Sexuality?” History and Theory 28, no. 3 (1993): 416, his emphasis. 29. Foucault, The History of Sexuality, 18. 30. Robert Young, “Foucault on Race and Colonialism,” New Formations 25 (1995): 71; Ann Stoler, Race and Education of Desire (Durham: Duke University Press, 1995), vii, 9. 31. Foucault, The History of Sexuality, 107. 32. Foucault, 109; Philip Howell, “Foucault, Sexuality, Geography,” in Space, Knowledge and Power: Foucault and Geography, ed. Jeremy Crampton and Stuart Elden (Oxford: Ashgate Publishing Company, 2000), 296. 33. Foucault, 3. 34. Clare, “Earthly Encounters: Readings in Feminist Theory, Poststructuralism, and Canadian Settler Colonialism,” 123. 35. J. MacGregor Wise, “Home: The Territory and Identity,” Cultural Studies 14, no. 2 (2000): 295–310. 36. Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (Minneapolis: University of Minnesota Press, 1987), 313. 37. Foucault, The History of Sexuality, 20. 38. Clare, “Earthly encounters: Readings in feminist theory, poststructuralism, and Canadian settler colonialism,” 124. 39. Foucault, The History of Sexuality, 48; Mark Kelly, Foucault’s History of Sexuality Volume I, The Will to Knowledge (Edinburgh: Edinburgh Philosophical Guides, 2013), 39, 41. 40. Foucault, 48; Clare, “Earthly Encounters: Readings in Feminist Theory, Poststructuralism, and Canadian Settler Colonialism,” 124. 41. Foucault, 26; Howell, “Foucault, Sexuality, Geography,” 297. 42. Clare, “Earthly Encounters: Readings in Feminist Theory, Poststructuralism, and Canadian Settler Colonialism,” 125. 43. Foucault, The History of Sexuality, 147. 44. Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974, 43; Taylor, “Foucault and Familial Power,” 203. 45. Foucault, Psychiatric Power: Lectures at the College de France, 1973–1974, 43–45. 46. Lawrence Stone, Road to Divorce, England 1530–1987 (Oxford: Oxford University Press, 1990), 6.

18

Introduction

47. Foucault, The History of Sexuality, 147. 48. See Foucault’s lectures: Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976; Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78 and Thomas Lemke, “The Birth of Bio-Politics: Michel Foucault’s Lecture at the College de France on Neo-Liberal Governmentality,” Government and Society 30 (2001): 190–207. See also Rivera Carlos Santana, “Colonisation, Coloniality and Bio-Power: Biopolitics in Queensland, Australia,” Cultural Studies 32 no. 2 (2017): 5. 49. Ann Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California, 2002), 149. 50. Stoler, Race and Education of Desire, 89. 51. Foucault, “Governmentality,” 92. 52. Foucault, 92; Dean, Governmentality: Power and Rule in Modern Society, 127; Rebecca Albury, The Politics of Reproduction: Beyond the Slogans (Sydney: Allen & Unwin, 1999), 64–65; Caroline Knowles, The Family Boundaries: The Invention of Normality and Dangerousness (Peterborough: Broadview, 1996), 29–43. 53. Robbie Duschinsky and Leon Rocha, Foucault, the Family and Politics (London: Palgrave Macmillan, 2012), 2. 54. Foucault, The History of Sexuality, 104–5. 55. Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule, 144. 56. Stoler, 145. 57. Stoler, 24. 58. William Wilder, “Race and the Education of Desire: History of Sexuality and the Colonial Order of Things by Ann Stoler.” Book Review, Journal of Asian Studies 4 (1996): 1088. 59. Santana, “Colonisation, Coloniality and Bio-Power: Biopolitics in Queensland, Australia,” 5. Foucault argues that racism was a way of introducing a break into the domain of life, between what must live and what must die (Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976, 254). Racism allows the biopolitical state to divide the species into races, into “the race” and sub-races and into fit and unfit species of a race. This consequently allows the biopolitical state to designate certain populations as dangerous and thus to justify their death, or enslavement in the name of the protection of life. See Taylor, “Foucault and Familial Power,” 753. 60. Foucault, The History of Sexuality, 127. 61. Young, “Foucault on Race and Colonialism,” 11. 62. Vicky Bell, Interrogating Incest: Feminism, Foucault and the Law (London: Routledge, 1993), 93. 63. Foucault, The History of Sexuality, 104; Bell, Interrogating Incest: Feminism, Foucault and the Law, 94. 64. Foucault, 107; Bell, Interrogating Incest: Feminism, Foucault and the Law. 65. Patricia Grimshaw, “Women and the Family in Australian History,” in Women, Class and History: Feminist Perspectives on Australia 1788–1978, ed. Elizabeth Windshuttle (Melbourne: Fontana Books, 1980), 39–43. I acknowledge that there is some controversy over the actual family form of family life in early rural Australia. Grimshaw argues that there was a disintegration of the old patriarchal control of the family, as the colonial family became “egalitarian.” While colonial family forms did not exhibit the characteristic of dynastic family life, it is hard to label them as “egalitarian.” 66. Michel Foucault, “Prisons et asiles dans le mécanisme du pouvoir,” in Dits et Ecrits, 2 (Paris: Gallimard, 1974): 523–24. 67. Many scholars have noted the limits of state law given the continuation of customary forms of law in most states, as well as the existence of different groups at the margins of capitalist modernity. See Boaventura de Sousa Santos, “The Law of the Oppressed: The Construction and Reproduction of Inequality in Pasagada,” Law and Society Review 12 (1977), 5–126; Stuart Macaulay, “Non-contractual Relations in Business: A Preliminary Study,” American Sociological Review 28 (1963), 55–67.

Introduction

19

68. David Kennedy, “The Disciplines of International Law and Policy,” Leiden Journal of International Law 12, no. 1 (1999): 83. 69. Michel Foucault, “Truth and its Juridical Forms,” in Power, ed. Michel Foucault (New York: The New Press, 2000), 246; Jan Suntrup, “Michel Foucault and Competing Alethurgies of Law,” Oxford Journal of Legal Studies 37, no. 2 (2016): 305. 70. Lauren Martin, “Governing through the Family: Struggles over US Noncitizen Family Detention Policy,” Environment and Planning A 44, no. 4 (2012): 867. 71. Michel Foucault, The Birth of Biopolitics: Lectures at the College de France 1978–1979 (Basingstoke: Palgrave Macmillan, 2008), 19. 72. Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976, 79. 73. Lauren Martin, “Governing through the Family: Struggles over US Noncitizen Family Detention Policy,” 868; Renisa Mawani, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (Vancouver: University of Washington Press, 2010), 83. 74. Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule, 47; Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (New York: Routledge, 1995); Young, “Foucault on Race and Colonialism.” 75. Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule, 8. 76. Foucault, The History of Sexuality, 148. 77. Ellen Feder, Family Bonds: Genealogies of Race and Gender (Oxford: Oxford University Press, 2007), 39. 78. Nicola Graham, Lawscape: Property, Environment and Law (Oxford: Routledge, 2011), 91. 79. Natalie Oswin and Eric Olund, “Governing Intimacy: ‘Disreputable life’: Race, Sex, and Intimacy,” Environment and Planning D: Society and Space 28 (2010), 62. 80. Rebecca French, “Ethnography in Ordinary Case Law,” in Anthropology of Law, ed. Michael Freeman and David Napier (Oxford: Oxford University Press, 2009). 81. Philip McMichael, Settlers and the Agrarian Question: Foundations of Capitalism in Colonial Australia (London: Cambridge University Press, London, 1984), xv.

ONE The Social Context of Farming

FARMERS, INHERITANCE, AND DIVORCE Each member to a dispute about family property may have a different view of the issue. Notions of property are an essential aspect of our cultural inheritance, absorbed by children along with more innocuous matters like table manners. Merry, for instance, has noted in her study of popular attitudes to property that people have both a “natural way of doing things” and a “common-sense understanding of the world.” Property owners, she argues, commonly believe that legal possession should guarantee them a quiet life, free from disturbances by neighbors and carrying the right to protect the boundaries of their land from infringement. 1 One key aspect that ownership of and work on property implies is that this right should be recognized by courts. As I will detail, property ideas in Australia are linked to various aspirations associated with land settlement and self-determination. The land that a farmer develops is not just an inert object, but can also be inextricably linked to his being and identity. Wilkinson says he has observed this process in his home district of Wangoom. He claims the farmer, the farm and the family were “consubstantial,” meaning of “one and the same substance or essence.” 2 In this light, the intergenerational transfer of the farm becomes part of the farmer’s role as a custodian for future generations, in that the farm as an object has an existence beyond its transient occupiers. 3 The idea of the family farm is thus connected to the personal identity of the owner so that the intergenerational transfer of the farm is seen as essential to the continuation of a family legacy. In many cases, the farm property becomes a “living memorial” to older generations. Even young21

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Chapter 1

er generations who have left the farm at an early age may still feel a strong social commitment to the property. 4 The stories of ancestors who settled a farm may create “expectations” that the younger generations may find burdensome. These expectations may include the idea that the farm will remain in the family and may be utilized as a site for family reunions and thus provide the opportunity for older generations to inculcate the new generation into the merits of the founding generation. Thus, in some cases, an awareness that the farm has been in the family for several generations may create further expectations that daughters and widows should not stand in the way of male succession down the generations. The history of the family and pioneer settlement of the land may create a family ideology that straitjackets women into defined roles. The son who inherits the farm after many years of hard labor under the tutelage of the father may regard it as rightfully his. However, daughters may think otherwise, considering themselves as involved in the farm from their youth and deserving of reward as they look after aging parents. They regard the farm as “family property” that should belong to all family members, especially as sharing the property amongst the family might function as recognition of the windfall involved in the increased value of a farming property. While these narratives are important, it is also necessary to consider, where relevant, the history of land settlement and the founding of the ancestral farm in a particular family, as well as the settlement of a particular “district” more generally. At the same time, decisions made by a farming family may reflect different priorities and stages in the broader life of the family. The husband may desire stability for the farming operation, the wife may want family harmony, and the son may seek development of the farm. On the other hand, a life tenant may not want farm operations to be expanded, but rather to receive a regular income to support them in their retirement. While I make these comments about typical family sentiments, one must recognize that family relationships are both diverse and flexible, and that no one family situation remains constant down the years. 5 Most farmers come from farming stock. It is generally regarded that those people who come from farming families possess the most appropriate skills, knowledge and training, and are therefore most likely to contribute to the efficient operation of the farm. 6 However, in the past, many sons entered farming by default and may not necessarily have made the most efficient farmers. 7 The choice of a successor to the farm property and the respective socialization of children occur very early. A child growing up on a farm may acquire a working knowledge of operations very easily, and such a child usually has a head start on those from non-farming backgrounds. Often, socialization takes place through the selective allocation of jobs. 8 Typically, it is reported, “girls may be encouraged to stay inside and the son goes out to mind the stock.” Various accounts show that boys from

The Social Context of Farming

23

rural backgrounds are often encouraged to show an interest in farming. At the same time, education may also reinforce stereotypical gender roles. There is historical evidence that schools complied with rural requirements that children stay at home to work on farms in times of need. 9 In some cultures in medieval Europe there was a formal arrangement or “care contract,” whereby one of the children was designated as a successor to the farm with the agreement of the siblings; in return, that son or daughter would commit to looking after the parents. 10 However, in Australia evidence shows that there was no overall planning or clear-cut decision-making process as regards this issue. The idea of retirement is a product of industrial urban culture and does not have the same relevance for farming families. 11 Retirement may take several forms in the latter context: retirement in farming, retirement to farming and retirement from farming. 12 Should there be a son to take over the farm, a long process of transition is necessary, which scholars have mapped out in various ways. Gasson and Errington have identified the stages of “socialization,” “technical apprentice,” “partnership” and “controller.” 13 It is of interest to ask why farmers are reluctant to retire early. Wilkinson observes that they may not have the right skills for another job, or lose status upon leaving the land, or consider themselves not to have the right personality for off-farm work. 14 Such reluctance often hinders legal mechanisms in the handover process, which is usually underpinned by a “testamentary promise.” These ensure that one day the working son will receive the farm in return for having worked on the farm. It is of particular interest how such a transfer may be considered. Should these “transactions” be seen as gifts or legal exchanges? One way suggested in this work is that these transfers function as a form of gift based on reciprocity, in that the donation of labor for many years is rewarded by a later transfer of title. Thus, while an inheritance through this form of dealing may be seen ultimately to culminate in a formal exchange of contracts, such exchanges form part of a complex web of exchange relationships. 15 Another “transition” of family property may be reflected in cases of divorce. Women often lose out in such cases as they may have married into a farming family and therefore stand to lose even more that the husband, should the farm have to be sold or there is a need to move off the land. The situation may be exacerbated by the fact that both the husband and the wife may have worked on the farm for many years, even though the title still may be held in the name of the parents of the husband. 16 In many cases, the superior farming skills and general entrepreneurial skills of the husband may receive more recognition than the wife’s respective skills, especially in the form of the husband receiving a greater share of the farm on a property settlement.

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Chapter 1

In conclusion, there are several key aspects to the socialization and succession process. Firstly, the gendered allocation of farm tasks is based on the idea that boys do certain farm tasks and girls are better suited to domestic work. Secondly, the symbolic value of property and the sense of grievance children feel in being excluded from a parent’s estate can cause lasting interpersonal problems. The sense of rejection is more than a financial rebuff, as non-inheriting members may well consider themselves excluded from the family bond. 17 Finally, inheritance of farms reproduces the normative structure of family relations that men make farm decisions and women are more active in the domestic realm. The significance of these factors is that the farm is considered as “male property.” It is conceded that these attitudes change over time. 18 THE AUSTRALIAN FARM The description “family farm” includes all types of properties, ranging from small dairy farms to pastoral estates, which often ran large numbers of cattle on vast leasehold properties. I consider there to be no issues raised for the development of this work by these different types of operations. For sake of convenience, I distinguish between two groups of farmers, one which advocates “farming as a way of life” and another who views “farming as a business.” 19 I note the sophisticated ideas developed by van der Ploeg, which allow us to visualize farming styles created by each farmer as a response to different structural forces. 20 At the same time, as I later discuss, some farm families are evolving different forms of the gendered division of labor, spurred on by the increasing amount of off-farm work undertaken by women, as well as changing conceptions about individuality. Studies in Australia and elsewhere have concerned themselves with a variety of issues as regards family farms. One such issue is the attempt to explain the survival of the family farm under capitalism. Some scholars have seen the survival of the farm as refutation of Marxist theory, which predicted the ending of such operations. Other scholars have argued that the farm has survived because of lower labor costs. I will not deal with this debate other than to refer to the literature on the topic. 21 As regards gender issues, some early research on farming women has utilized notions of patriarchy and capitalism to explain gender oppression. 22 Generally speaking, “patriarchy” has been associated with “male” attributes of entrepreneurialism, effort, strength and courage. 23 According to this view, men form the backbone of farming culture: their activities are associated with the performance of heavy and dirty outdoors work, the handling of large animals, working with heavy machinery, and bargaining with other men in the marketplace. 24 As an integral part of

The Social Context of Farming

25

this discourse, men who navigate their family through difficult times are constructed as dealing with the rational world on behalf of others. 25 Some feminist scholars have recently developed a more nuanced reading of this account, showing that women have resisted such stereotypes and in some cases they have created alternative narratives. At the same time, recent studies have recognized that gender identities are not singular but multiple and varied, and therefore there are no homogeneous forms of femininity. 26 Other scholars have also noted the changes in family life brought on by growing individualism: this can be described as a weakening of earlier social norms, with the focus more on individual reflexivity and personal choice as each person makes “a life one’s own.” 27 These legal and cultural changes mean that women may create employment opportunities in the market or develop entrepreneurial activities on the farm, 28 thereby weakening the stereotype of the woman in the farmhouse further still. One approach, described as a “postfeminist sensibility,” intersects with neoliberal ideas. This has encouraged scholars to consider a focus on gender relations more broadly, to think of femininity “as a bodily property,” a “shift from objectification to subjectivation: a focus on self-regulation, self-surveillance and self-improvement” to a form of “feminism that celebrates individualism, choice and empowerment.” 29 However, it is difficult to gauge how deeply these discourses have penetrated into rural society although there is evidence of more women operating farms and increasing off-farm employment for women. THE GENDERED DIVISION OF LABOR AND NEW FAMILY FORMS Research in the discipline of sociology has developed theories as regards the gendered division of labor. Aspects of this debate are instructive as they provide insight into how men seek to reinforce masculine power to achieve particular outcomes as regards the allocation of labor. This research on the gendered division of labor is dominated by three perspectives. One holds that the division is based on economic considerations, the second on the availability of time and the third on ideology and gender. 30 The last theory does not accept that the division of labor is fundamentally economic or a result of role specialization. Rather, it argues that men and women establish and affirm their identity by the display of gender-appropriate behavior. Berk, for instance, argues that the marital household is a “gender factory,” which produces gender as men and women carry out different kinds of household tasks. 31 Researchers have noted how farmers have adopted new strategies: women are increasingly working off-farm, with the result that the source of family income has become diversified. In many cases, women are supporting

26

Chapter 1

the continuation or even survival of the farm during periods of drought, low commodity prices or restructuring. 32 In line with Foucault’s work, it will be argued that a nuanced approach to gender helps to track the differences between male and female, and how genders are constructed through power discourses. This work follows the notion that “gender is not a noun,” it is performative. 33 Gender is distinct from biological sex; there is nothing pre-determined, natural or essential about one’s gender identity. Rather, gender is produced or constituted through discourse. 34 Some feminists have argued that Foucault failed to account for the term “gender” in The History of Sexuality. McNay claims, for instance, that he neglected to examine the gendered character of many disciplinary techniques, instead speaking of power as if it subjugated everyone equally. 35 Along these lines, Naffine argued that Foucault failed to see how operations of power vary according to the sex of the subject. 36 However, such claims fail to give sufficient credit to Foucault’s commitment to historical specificity: his concern was to track how power operated strategically in various fields of knowledge. THE HISTORICAL SCOPE OF THIS WORK It is an implicit premise of this book that Australian history needs to be studied within the metropolitan power framework: ideas as to work, property, economics and sexuality were developed as part of an imperial context. 37 Within a “metropolitan” framework, this book concentrates on two historical phases. The first period is from 1850 to 1975, which I call the period of the settler state. The second period is from 1975 to the present. The “settler state” period constitutes an era of Australian history up until what Paul Kelly has called The End of Certainty. Kelly characterized the period prior to the 1970s in terms of a form of capitalism based on “White Australia, Trade Protection, Wage Arbitration, State Paternalism and Imperial Benevolence.” 38 In the rural context, Australia “rode on the sheep’s back” and the pastoral industry supported the economy of the country. 39 During this period, a “rural ideology” existed as to farming and rural life. Within this framework, the farm was portrayed as a man’s realm, with women relegated to background figures in the landscape. Farming identity in this account was based on acceptance of male hegemony, domestic ideals for women, a commitment to self-sufficiency and individualism without government interference. 40 What has been called the “pioneer legend” celebrated many of the values associated with rural life, such as courage, enterprise, hard work and perseverance. The “bush legend” also encapsulated some of these values to describe the emergence of

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a masculine ideal of a fiercely independent, practical, rough and readymade man. 41 Another version of this theme emerges in the language of “agrarianism” and within ideas of “country mindedness.” 42 While it is recognized that these sentiments have continued in later times this chapter concentrates on how these sentiments were imbricated with law in an earlier period. The second period coincides with the development of neoliberalism in Australia since the 1970s. The literature on neoliberalism encourages us to think about how gender may be reshaped to create a more dynamic view of freedom and self-regulation. Coincidentally, the 1970s may be seen as a period of changing views on marriage, as illustrated by the advent of no-fault divorce under Australian law. 43 While I mention a periodization of history here, I follow the idea that Foucault was not interested in tracing history in terms of linear, unified development. Instead, he sought to discover the rules of a particular discourse and to describe how they were a product of knowledge and power. A GENEALOGICAL APPROACH TO TEXTS Genealogy is a diagnostic methodology that involves exposing the circumstances that brought texts into existence in order to reveal their contingent character. 44 The genealogical approach aims to establish what combination of circumstances, in various fields of activity, gave rise to such composition of texts. 45 Foucault contends that genealogy deploys the notion of “eventualization.” By this he means “making visible a singularity at places where there is a temptation to invoke a historical constant or an obviousness,” especially one which seeks to impose uniformity on all. In other words, the aim is to show that “things weren’t always like that.” For instance, it was not always obvious that mad people were mentally ill or that the only thing to do with “criminals was to lock them up.” 46 This view of family law texts does not, however, represent a typical approach to family law. The conventional taxonomy of legal subjects has its own genealogy. As Sugerman has pointed out, this arose partially out of the classification system commenced by early legal textbook writers. 47 Scholars who use the genealogical approach are not interested in the usual form of legal history, namely that seeking to discover why or by what process a certain rule came to be authoritative. Rather, like Foucault’s approach, the genealogist selects a problem rather than a period for investigation. 48 I apply this approach to law to ask, “how did a particular judgment come to be constituted by a specific legal statement?” The genealogical approach adopted in this book is intended to reveal the disciplines or ideas that legal texts adopt or displace. It is argued that law as a textual practice has systematically appropriated, privileged and secured

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a specific and limited set of meanings, accents and connotations. 49 For Foucault, epistemology as theory should have as its goal the development of tools that allow subjugated knowledges to become resurrected, or even to surface for the first time. There are two aspects to “subjugated knowledges.” The first aspect is the revealing of historical facts and “contents” that have been hidden, or passed over, by hegemonic discourse. Secondly, subjugated knowledges are also knowledges that have been disqualified by hegemonic discourse: “naive knowledges, hierarchically inferior knowledges, knowledges that are below the required level of erudition or scientificity.” 50 THE APPROACH TO LAW IN THIS WORK It is assumed in this work that law is an important part of state governance. However, it will be argued that analysis of legislation and case law does not necessarily show relevant aspects of family life, which can become hidden from view or even suppressed. This work therefore does not exclusively concentrate on doctrinal analysis of cases as laid down by judges, or develop reasons why particular legislation was enacted. I now outline the general approach to law taken in this work. Firstly, law is a professional discourse that represents a body of specialized knowledge. “Law” may be seen as a professional discourse because of its rationality, its procedure and its ability to claim the truth of events. 51 Law as a set of norms and practices acts as a system, which maintains its position because of specialized contents, modes of address and rhetorical tactics. I call this the “enclosed position” of law. Secondly, while law may be a self-enclosed system, it nevertheless incorporates a variety of rationalities and epistemologies. These incorporations represent different forms of knowledge, such as statistics, demography and economics. In specific doctrinal areas, such as taxation law and social welfare, law also adopts accounting and actuarial practices. 52 Thirdly, law incorporates and creates “dividing practices,” which contain certain forms of signification: these work to exclude particular types of people or certain kinds of conduct. The effect of such discursive power is that certain divisions or “dividing practices” are formed whereby certain signifiers or registers assume a commanding position; by contrast, other forms of signification are silently excluded. 53 Fourthly, law is productive and facilitative. Law is generally considered to be either prohibitive or coercive. For instance, Marxism sees law as something that is imposed against the will of its targets in order to secure class domination. On the other hand, liberalism sees law as furthering the “general interests” of the population with no specific target

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groups in mind. Foucault’s work invites us to consider power and law as the embodiment of productive power. Several issues arise from the four-phase approach to law outlined above. What is the actual relationship between law and the professional disciplines? Scholars have commonly observed laws’ expanding influence through a tendency to legalize various areas of social life. However, laws’ expansionary role has been seen in different ways by interpreters of Foucault. I perceive there are three possible positions. Firstly, the “enclosed position.” This holds that law is a set of internal communications that do not interact with other systems of thought or paradigms. Secondly, that the role of law in modern society has been displaced or expelled. 54 According to this view, the legal system has been increasingly supplemented, even eclipsed by the knowledge claims of the medical, psychological, psychiatric and criminological sciences. Carole Smith, for instance, argues that modernity erodes the distinction between law and other regulatory forms of control because it expands operations into broader areas of welfare policy, such as unemployment, housing and education. 55 The third position is that law has not been expelled from its prime position, but still constitutes the core of modern society (“the inclusion thesis”). This position does not attempt to deny the expulsion thesis, but instead adopts it, insofar as law is seen to be utterly dependent, yet responsive to alterity. 56 This more nuanced view has been advanced by Golder and Fitzpatrick, who argue that “law” was in fact one of Foucault’s “theoretical objectives,” and was seen by him as having a constitutive role to play in society. They argue that “Foucault’s law” is neither subsumed within other modes of sociality, such as that found in disciplinary institutions, governmental administration, or sovereignty, nor is it autonomous from them. They argue for a philosophy of law in which law is both dependent on things outside itself and surpasses such things by virtue of its illimitable responsiveness to alterity. They argue that Foucault sketches two different dimensions of law: law as a determinate and contained entity, and law as thoroughly illimitable and as responsive to what lies outside, or beyond its position for the time being. Foucault’s law, we shall see, is “located” in the uneasy, ambivalent relation of these two opposed yet generatively interacting legal dimensions. It is in the movement between these two apparently opposed dimensions that Foucault’s law is revealed as a law of possibility, contingency and liability: that is, as a law always open to the possibility of its being otherwise. 57

The approach adopted by Golder and Fitzpatrick is instructive for this work, as it helps us to focus on the inadequacies of the enclosed position

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to law, which visualizes law as a self-enclosed form of discourse separate from the rest of society. I will argue that law is both self-enclosed and, in different contexts, is colonized by the epistemologies and rationalities of various scientific disciplines. Importantly, does law encourage a change in behavior? It has been argued that law is a clumsy vehicle to bring about social change as customary forms of behavior are often deeply seated and far removed from the influence of central government. 58 Many scholars have referred to the notion of living law or customary law. Both these ideas refer to entrenched ways of doing things that reflect local customs, and may be independent from the laws of a centralized state. In this regard, many scholars have described self-sufficient legal orders. 59 For instance, studies on legal pluralism have shown that polycentric orders are commonplace and that they may be stable. One argument along these lines has been proposed by Robert Ellickson in his study of California ranchers. He suggests that order and enforcement of community norms arose entirely from norms within indigenous community institutions. 60 As the Norwegian experience shows, recent legislation that grants the eldest child, rather than the eldest son, the right to farm succession has not resulted in any gendered pattern of land inheritance. 61 While it is clear that legal pluralism does not operate in Australia, it is recognized that many communities follow customary ways or entrenched forms of behavior. For instance, it will be shown that farming families have distinct “cultural customs” regarding inheritance and divorce that are not necessarily upheld in the cases that come before the courts NOTES 1. Merry, Sally. Getting Justice and Getting Even: Legal Consciousness Among WorkingClass Americans. Chicago: University of Chicago Press, 1990: 44–46. 2. See similar comments by Gray as regards sheep farming in Scotland, in Gray, John. “Family Farms on the Scottish Border: A Practical Definition by Hill Sheep Farmers.” Journal of Rural Studies 14 (1998): 345. 3. Wilkinson, Roger. “Population Dynamics and Succession Strategies of Rural Industry Producers.” Unpublished Doctorate, Victoria University, 2009: 12–13. 4. Geldens, Paula. “Out-Migration: Young Victorians and the Family Farm.” People and Place 15 (2007): 80–87. 5. Wilkinson, “Population Dynamics and Succession Strategies of Rural Industry Producers,” 13. 6. Stayner, Richard A. “Getting into Farming: Family and Financial Factors.” Proceedings of the 1997 Agricultural and Resources Outlook Conference, Bureau of Agricultural and Resource Economics, Canberra, 1997. 7. Gasson, Ruth. “The choice of farming as an occupation.” Sociologia Ruralis 9 (2008): 146–66. 8. Schwarz, Ulrike. To Farm Or Not to Farm: Gendered Paths to Succession and Inheritance. Munster: Lit Verlag, 2004: 163; Lentz Bernard and David Laband. “Entrepreneu-

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rial Success and Occupational Inheritance Among Proprietors.” Canadian Journal of Economics 23 (1990): 563–79. 9. Wimshurst, Kerry. “Child Labour and School Attendance in South Australia 1890–1915.” Historical Studies 19 (1981): 338–411; Murray, Maree. “Working children: a social history of children’s work in New South Wales.” Unpublished Doctorate, Macquarie University, 1995; Campbell, Craig. “Family Strategy, Secondary Schooling and Making Adolescents: The Indian Summer of the Old Middle Class 1945–1960.” History of Education Review 22/2 (1993): 18–44; Campbell, Craig. “The Rise of Mass Secondary Schooling and the Modern Adolescence: A Social History of Youth in Southern Adelaide 1901–1965.” Unpublished Doctorate, University Adelaide, 1994; Davey, Ian. “Growing Up in South Australia.” In The Flinders History of South Australia, edited by Eric Richards, 371–402. Adelaide: Wakefield Press, 1986; Davey, Ian. “Capitalism, Patriarchy and the Origins of Mass Schooling: Feminist and Marxist Theory and the Rise of State Schooling Systems in 19th Century English Speaking Countries.” History of Education Review 16/2 (1987): 1–20. 10. Pradhan, Rajendra. “Family, Inheritance and the Care of the Aged: Contractual Relations and the Axiom of Kinship Amity.” Unpublished Manuscript, University of Amsterdam, 1990. Pradhan reports this practice in Holland while similar practices have been seen in Finland by Abrahams; Abrahams, Ray. A Place of Their Own: Family Farming in Eastern Finland. Cambridge: Cambridge University Press, 1991. 11. Gasson, Ruth and Andrew Errington. The Farm Family Business. Oxford: CAB International, 1993, 220. 12. Foskey, Roslyn. “Older Farmers and Retirement.” Publication No. 05/005. Canberra: Rural Industries Research and Development Corporation, 2005: 62–66; Wilkinson, “Population Dynamics and Succession Strategies of Rural Industry Producers,” 32. 13. Gasson, Ruth and Andrew Errington. The Farm Family Business, 217. 14. Wilkinson, “Population Dynamics and Succession Strategies of Rural Industry Producers,” 27–30. 15. Kennedy, Liam. “Farm Succession in Modern Ireland: Elements of a Theory of Inheritance.” Economic History Review 69/3 (1993): 477–99; Moore, Wilbert. Order and Change. New York: Wiley, 1967. 16. Alsgaard, Hannah. “Rural Inheritance: Gender Disparities in Farm Transmission.” North Dakota Law Review 88 (2012): 347–409. 17. Sussman, Marvin, Judith Cates and David Smith. The Family and Inheritance. New York: Russell Sage Foundation, 1970: 170–72; Bell, Diane. Generations. Sydney: Penguin Books, 1987. 18. Clignet, Remi. Death, Deeds and Descendants: Inheritance in Modern America. New York: Aldine, 1992: 37. 19. Some farmers saw “farming as a way of life” and others saw “farming as a business.” Some farmers in this latter group had more commercial views and less sentimental notions about farm land retention within the family. Some farmers in this group may have absorbed neoliberal views that emphasized notions of enterprise and efficiency. It was clear these farmers had internalised government policies as regards rural restructuring and efficiency enshrined in rural assistance legislation. As regards the former group, these farmers had strong emotions about family land retention and may have been more willing to exploit their own labor so as to continue with the farm. 20. Vanclay, Frank, Peter Howden, Luciano Mesiti and Scott Glyde. “The Social and Intellectual Construction of Farming Styles: Testing Dutch Ideas in Australian Agriculture.” Sociologia Ruralis 46/1 (2006): 57. 21. Winter, Michael. “Agrarian class structure and Family Farming.” In Locality and Rurality: Economy and Society in Rural Regions, edited by Tony Bradley and Philip Lowe, pages 115–28. Norwich: Geo Books, 1984; Whatmore, Sarah. Farming Women: Gender, Work and Family Enterprise. London: Macmillan, 1991. For a good summary, see Williams, Fiona. “The Family Farm through a Succession Lens: Towards Understand-

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ings of Contemporary Practices and Processes.” Unpublished Doctorate, University of Aberdeen, 2010. 22. Alston, Margaret. Women on the Land: The Hidden Heart of Rural Australia. Sydney: New South Wales University Press, 1995; Whatmore, Farming Women: Gender, Work and Family Enterprise. 23. Some occupations have been associated with specific female attributes. Women have been associated with such activities as secretarial work and library work; Evelyn Kerslake and Janine Liladhar, “Angry Sentinels and the Businesslike Women: Identity and Married Status in the 1950s English Library Career Novels.” Library History 17/2 (2001): 83–90; Rosemary Pringle. Secretaries Talk: Sexuality, Power and Work. Sydney: Allen and Unwin, 1989. Women are also linked with notions of domesticity such as gentleness, sensitivity, fragility, weakness, vulnerability and dependence. See, for example, Hunt, Alan. Governing Morals: A Social History of Moral Regulation. Cambridge: Cambridge University Press, 1998: 81–87. 24. Bartlett, Peggy and Katherine Conger. “Three Visions of Masculine Success on American Farms.” Men and Masculinities 7 (2004): 209. 25. Black, Jason. “Authoritarian Fatherhood: Andrew Jackson’s Early Familial Lectures to America’s ‘Red Children’.” Journal of Family History 30 (2005): 247. 26. See for instance Pini, Barbara. “Farm Women: Driving Tractors and Negotiating Gender.” International Journal of Sociology of Agriculture and Food 13/1 (2005): 1–18. 27. Beck, Ulrich and Elizabeth Beck-Gernsheim. The Normal Chaos of Love. Cambridge: Polity Press, 1995. 28. Brandth, Berit and Marit Haugen. “Embodying the Rural Idyll in Farm Tourist Hosting.” Scandinavian Journal of Hospitality and Tourism 9 (2014): 1–15. 29. Riley, Sarah A., Adrianne Evans and Alison Mackiewicz. “It’s just between girls: Negotiating the postfeminist gaze in women’s ‘looking talk.’” Feminism and Psychology 26/1 (2016): 97. 30. Hewitt, Belinda, Janeen Baxter, Sharon Givans, Michael Murphy, Paul Myers and Cameron Meiklejohn. Men’s Engagement in Shared Care and Domestic Work in Australia. The Social Research Centre, University of Queensland, 2014; Geist, Claudia and Leah Ruppanner. “Mission Impossible? New Housework Theories for Changing Families.” Journal of Family Theory & Review 10 (2018): 242–62. 31. Berk, Sarah. The Gender Factory: The Apportionment of Work in American Households. New York: Plenum Press, 1985. 32. Alston, Margaret. “Who is down on the farm? Social aspects of Australian Agriculture in the 21st century.” Agriculture and Human Values 21 (2004): 37–46; Alston, Margaret. “You don’t want to be a check-out chick all your life: The out migration of young people from Australia’s small rural towns.” Australian Journal of Social Issues 39/ 3 (2004): 299–313; Clarke, Josephine. “A gender analysis of agricultural and rural restructuring in the Mallee region.” Unpublished Doctorate, Monash University, 2014: 62. 33. Butler, Judith. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge, 1990: 24. 34. Pini, “Farm Women: Driving Tractors and Negotiating Gender,” 3. 35. McNay, Louis. Foucault and Feminism: Power, Gender and the Self. Oxford: Polity Press, 1992: 11. 36. Naffine, Ngaire and Rosemary Owens, eds. Sexing the Subject of Law. Sydney: LBC Information Services, 1997: 77. One way around this impasse is the approach of Judith Butler, which was that the sexed nature of women was produced prior to culture (Butler, Gender Trouble: Feminism and the Subversion of Identity, 7). Following Foucault, Butler argues that the notion of a “natural” sex that is prior to culture and socialization is implicated in the production and maintenance of gendered power relations because it naturalizes the regulatory idea of a supposedly natural heterosexuality and, thus, reinforces the reproductive constraints on sexuality. 37. See comments in chapter 2, concerning the distinction between colonialism and settler colonialism.

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38. Kelly, Paul. The End of Certainty: The Story of the 1980s. Sydney: Allen & Unwin, 1994, 661. Lloyd adds to this list by adding agricultural marketing, the Federal/State financial arrangements and State-owned banks (Lloyd, Christopher. “Regime Changes in Australian Capitalism: Towards a Historical Political Economy of Regulation.” Australian Economic History Review 42 (2002): 239). 39. Cashin, Paul and John McDermott. “Riding on the Sheep’s Back: Examining Australia’s Dependence on Wool Exports.” The Economic Record 78 (2002): 249–63. 40. Alston, Women on the Land: The Hidden Heart of Rural Australia. 41. Ward, Russell. The Australian Legend. Oxford: Oxford University Press, 1958: 16–17. 42. Aitkin, Don. “Countrymindedness—the spread of an idea.” Australian Cultural History 4 (1985): 34–41. Standard studies on settlement include Fletcher, Brian. Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821. Sydney: Sydney University Press, 1976; Meinig, Donald. On the Margins of the Good Earth: The South Australian Wheat Frontier 1869–1884. London: Murray, 1962; Roberts, Stephen. History of Australian Land Settlement, 1788–1920. South Melbourne: Macmillan, 1968; Denoon, Donald. Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere. Oxford: Clarendon Press, 1983. Some vacant land was settled through forms of squatting where land was seized rather than allocated as in closer settlement schemes such as soldier settlement. 43. Neoliberalism or fiscal conservativism has been seen as embracing a minimalistic state and the privatization of public services; see Larner, Wendy. “Neo-liberalism: Policy, Ideology, Governmentality.” Studies in Political Economy 5 (2000): 5–25. 44. Foucault, Michel. The Archaeology of Knowledge. London: Tavistock, 1972: 6. 45. Foucault, Michel. The Order of Things: An Archaeology of the Human Sciences, translated by A. M. Sheridan. London: Tavistock, 1970: xi. 46. Foucault, Michel. “Governmentality.” In The Foucault Effect: Studies in Governmentality, edited by Gordon Burchell and P. Miller, pages 73–86. London: Harvester Wheatsheaf, 1991. 47. Sugerman, David. “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition.” In Legal Theory and the Common Law, edited by William Twining, pages 26–62. Oxford: Blackwell, 1986. 48. Kendall, Gavin and Gary Wickham. Using Foucault’s Methods. London: Sage, 1999: 22, their stress. 49. Moran, Les. Homosexual(ity) of Law. London: Routledge, 1996, 8; Goodrich, Peter. Reading the Law: A Critical Introduction to Legal Methods and Techniques. London: Basil Blackwell, 1986, 3. 50. Foucault, Michel. Power/Knowledge: Selected Interviews and other Writings 1972–1977. Edited by Colin Gordon. Brighton: Harvester Press, 1980: 82. 51. Smart, Carol. The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations. London: Routledge and Keegan Paul, 1984: 10–11. 52. Simon, Jon. “The Ideological Effects of Actuarial Practices.” Law and Society Review 22/4 (1988): 771–800. For an Australian case, which adopts probability theory on the question of mail delivery, see SDEETYA and Coward AAT 12405, 20 1997. 53. Eagleton, Terry. Ideology: An Introduction. London: Verso, 1991, 194; Stewart, Miranda. “Domesticating Tax Reform: The Family in Australian Tax and Transfer Law.” Sydney Law Review 18 (1999): 453; Foucault, Michel. “Afterword: The Subject and Power.” In Michel Foucault: Beyond Structuralism and Hermeneutics, edited by Hubert Dreyfus and Paul Rabinow, pages 208–26. Brighton: Harvester, 1982, 208–9. 54. Hunt, Alan and Gary Wickham. Foucault and Law: Towards a Sociology of Law as Governance. London: Pluto Press, 1994; Hunt, Alan. “Foucault’s Expulsion of Law: Towards a Retrieval.” Law and Social Inquiry 17/1 (1992): 1–38. 55. Smith, Carole. “The Sovereign State v Foucault: Law and Disciplinary Power.” The Sociological Review 48/2 (2000): 288. 56. Golder, Ben and Peter Fitzpatrick. Foucault’s Law. Abington: Routledge, 2009: 2. 57. Golder and Fitzpatrick, 2–3.

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58. On the effectiveness of law, see Evan, William. “Law as an Instrument of Social Change.” In The Sociology of Law, edited by William Evan, pages 554–62. New York: Free Press, 1980; Cotterrell, Roger. The Sociology of Law: An Introduction. London: Butterworths, 1992; See the review by Griffiths who shows that “instrumentalism” makes four untenable assumptions based on atomistic individualism, perfect legal knowledge, legal monism and the assumption of legislative autonomy, Griffiths, John. “The Social Working of Legal Rules.” Journal of Legal Pluralism 48 (2003): 15–16. On the question of causation in law in the postmodern context, see Rosenau, Pauline. “Modern and Post-Modern Science.” Review 15/1 (1992): 49–89; Klein, David M. “Causation in Sociology Today: A Revised View.” Sociological Theory 5/1 (1987): 19–26. For a discussion of difficulty of the law to affect social change, see the debate within the “implementation literature,” see Casper, Jonathan and David Brereton. “Evaluation Criminal Justice Reforms” Law and Society Review 18/1 (1984): 121–44. 59. For a review of private ordering of disputes, see Richman and his discussion of the various mechanisms of private ordering see Richman, Barak. “Norms and Law: Putting the Horse before the Cart.” Duke Law Journal 62(3) (2012): 739–66. 60. Ellickson, Robert. Order Without Law: How Neighbours Settle Disputes. Cambridge, MA: Harvard University Press, 1991. For a review of private ordering of disputes, see Richman. 61. Haugen, Marit. “Female Farmers in Norwegian Agriculture: From Traditional Farm Women to Professional Farmers.” Sociologia Ruralis 30/2 (1990): 197–209.

TWO The Dispossession of Aboriginals from Land An Application of Foucault’s Theories on Race and Sexuality

I commence this chapter with a personal story. I was brought up on a dairy farm in New Zealand. My family had settled on the land in the 1930s during the Depression. The local school contained a mixed proportion of children from Maori and European descent. Across from the boundary of the family farm lay rich rolling land, owned by Maori people. This land was not ploughed and lay in its unimproved condition covered in scrub and fern. Local farmers of European descent often lamented that it was a great pity the land was not properly farmed and instead lay wasted. In later years, I realized how typical this attitude was towards the Maori. European farmers resented the fact that Maori landowners underused their land by not adopting European agricultural practices. Many farmers politically agitated for underused Maori land to be confiscated and used more productively. What is illustrated here is European ignorance of traditional Maori attitudes to land. 1 Many years later, I read to my daughter Little House on the Prairie by Laura Ingalls Wilder. 2 This book gives an account of a pioneer family settling on new lands in the 1870s in the United States. In reading this story I re-encountered the typical attitude that land belongs rightfully to those who work it. What intrigued me was that Eurocentric attitudes were found in both New Zealand and the United States. In Australia in a similar way, Europeans complained about Aboriginals in Australia not working lands that lay in “unproductive idleness.” 35

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I now want to connect these accounts with parallel ideas in Australia as regards the dispossession of indigenous land by colonists. I examine what I call the “narrative of dispossession” to enable a deeper understanding of how a reworking of Foucault’s ideas on race and sexuality may explicate a methodology that explains the exclusion of Aboriginals from the land. There are two broad lines of scholarship as regards the history of settler invasion. One is contained in the literature concerning settler and colonial studies; 3 the other is found in general historical accounts of Australian settlement. Both accounts provide explanations about the erosion of indigenous culture and the establishment of European society. Patrick Wolfe has advanced one of the most influential theoretical models for understanding the process of dispossession, namely that settler invasion is “a structure rather than an event.” 4 That structure is also one of the elimination of indigenous peoples by violence or assimilation. Wolfe envisaged that the relationship within colonization was not based on the indispensability of indigenous people, but on their dispensability (his stress). 5 Invasion was based on a polarity or empirical binarism 6 (indigenous vs settler). As regards this particular issue Wolfe says that “it might seem doctrinaire to insist on the primacy of an underlying polarity,” but the “motivation is empirical as polarity is indisputable.” 7 The “narrative of dispossession” 8 supports the claim that racial and sexual stereotypes were invoked to support the colonization of lands occupied by indigenous peoples. Anderson and Perrin correctly assume that this account is “irrefutable,” adding that this explanation has turned into a power dynamic “that saturates, and indeed exhausts,” so that “the very character as an encounter has been effaced.” 9 A critique will be made of the Wolfe thesis and the narrative of dispossession, through Foucault’s methodological approach. It is suggested the genealogical method should not be deployed to the detriment of historical analysis, as both methods need to operate together. In the first part of this chapter, I outline the “narrative of dispossession” 10 regarding the removal of Aboriginal people from their land, and connect this with ideas of “sexuality and economics.” The argument will be made that ideas of an inferior race, particularly one constructed as sexually dangerous, were instrumental in the decimation of Aboriginal society. In the second part of this chapter, I summarize relevant aspects of Foucault’s historical approach and his genealogical method. These approaches are then used to analyze both Wolfe’s thesis and the broader narrative of dispossession in the context of European settlement of rural Australia. I am not seeking to establish an argument that there was a causal connection between these two factors, that is, “race-sexuality-economics” and “dispossession.” Rather, consistent with the genealogical approach adopted in this work, I show how discourses on sexuality and race were

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imbricated with economic justifications for dispossession. Instead of discrediting Wolfe’s thesis, my concern is to demonstrate how it may be critiqued from a different perspective. FOUCAULT, RACE, AND SEXUALITY To understand the role of colonial discourse as regards the removal of Aboriginals from the land, I refer to Foucault’s ideas of racism discussed previously. As I have indicated, in Foucault’s view, ideas concerning nation and race merged to form “population.” Within this new conception of population, those at risk to the general well-being could be discriminated against by those who held power. The consequences of this calibration meant that an attempt could be made to strengthen the existing population not qua individuals who constituted it, but rather to strengthen the population as a whole by incorporating new elements that improved it. 11 In the settlement context, the result was a range of calibrations pertaining to Aboriginals and their perceived sexuality. Stoler has shown how race created a set of subdivisions in which certain races were classified as “good, fit, and superior.” 12 Sub-races were considered “excess” or classified as dangerous to the aggregate population, and must accordingly be “contained and/or eliminated.” We might now see some connectivity between these two ideas. Here I refer to the notion “that there was racialization of sexuality and sexualisation of race.” 13 To this end, we may recall Foucault’s injunction that sexuality was endowed with the greatest instrumentality useful for the greatest numbers of maneuvers and strategies. 14 According to this double connectivity, sexual acts were no longer things one engaged in but the criteria that determined what one was. 15 We may now envisage that sexuality became racialized as Aboriginals’ sexual behavior was specified as a special category involving “a new specification of individuals.” 16 NARRATIVES OF DISPOSSESSION A central goal of my account of dispossession is to identify the assumptions and representations within this form of explanation. I outline what has become a familiar trope about dispossession, one that has actually come to have a “narrative” life of its own. Firstly, Aboriginal land was regarded by British colonial governments as terra nullius—or vacant land. 17 The extension of this doctrine was that the land was still considered “terra nullius,” even if it was actually inhabited. Under British law, Aboriginals had no property in the land and the land was accordingly vested in the government. 18 The description of the “new world” as uninhabited wilderness reflected the long-standing view that indigenous peo-

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ple lived in a state of nature, were not fully human, and therefore property ownership and other rights did not apply. 19 A second justification for dispossession of Aboriginals was that they were perceived not to work the land. It was widely thought that indigenous Australians lived a nomadic, hunter-gatherer lifestyle. 20 Writers in the Sydney Gazette and the Sydney Morning Herald, for example, asserted that the land had not been stolen: Aboriginal people were merely “wanderers” who “bestowed no labor on the land” and had no real property sense. “This vast country was to them a common.” 21 The sentiments quoted below were expressed in the Port Phillip Gazette in 1838. Through a fictional conversation between a squatter and a newly arrived philanthropist, the extract expresses alternative positions on the topic of Aborigines. The following discusses the rights of Aborigines in regard to land ownership: Squatter: [O]f course they have some idea of property, as consequently of the rights of possession, and if from this they have been taught to respect the land belonging to another, let them beware how they trespass upon mine, or I will shoot them as I would a native dog. . . . By the law of nature . . . everything she gave us she gave in common, therefore the land is mine as much as it is theirs. By the law of man, which arises out of the first, and constituted as the great human society is, cannot be subverted. The improvements I make are my own. Philanthropist: Are you sure then the blacks have not done anything which may be considered in the light of an improvement, and which would by the law of man give them the priority or right? Squatter: Nothing. 22 This quotation shows how long-standing ideologies, often imported from English society, were imbricated with local prejudices coinciding with the early settlers’ desire for land acquisition. Thirdly, arguments for the colonization of land were commonly based on the importance of opening up new areas for cultivation; agrarianism was seen as the most profitable way to settle new lands. The encouragement of agriculture, it was suggested by farmers, would lead to the export of crops and the creation of employment. 23 Fourthly, colonists neither understood, nor wanted to understand, the complexities of the relationship between Aboriginals and their land. They regarded Aboriginals as “indolent” and lazy for their failure to work the land according to English agrarian ideals. 24 The Australian and Sydney Gazette described them as “totally destitute . . . of industry and ingenuity . . . wretchedly inattentive to the very means of subsistence.” These papers went on to describe Aboriginals as “a very erratic and wandering

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race,” possessing “a vagrancy of mind that bears a strict analogy to their vagrancy of body.” 25 Many of the depictions of Aboriginals—“savages,” “lazy,” “unreliable,” “thievish and wild”—showed a resemblance to depictions of commoners who resisted the enclosure of fields in England in the 1820s. Therefore, a body of pre-existing notions could be drawn upon to denigrate Aboriginal people. 26 However, the irony was that Aboriginal men and women provided the backbone of labor on pastoral properties. The use of such black labor clearly challenges the view that the achievement of pioneer settlement was the result of hard toil by Europeans, and that Aboriginals contributed little. 27 Fifthly, colonial policies were based on the idea that Aboriginals posed a threat to the European social order on account of a “sexuality” that was “profoundly destabilizing.” 28 Their alleged propensity for promiscuity was seen as a threat to white society. As Jackie Huggins describes it, “the obsession with racial purity and prestige made any sexual relations between black and white horrifying.” 29 In European eyes, the native was passionate, irrational and immoral. 30 Aboriginal women who had sexual intercourse with white men were designated “black velvet.” The metaphor also provided a point of reference as regards their exoticism in the eyes of white men. 31 The corollary was that Aboriginal men were considered brutish and abusive towards their female counterparts. Such descriptions therefore reinforced the belief that Aboriginal women were freely available to white men. These accounts also alleviated guilt over such liaisons as “her treatment as a concubine was seen as more humane than that which the Aboriginal wife received from her husband.” 32 The image of the white woman as a symbol of racial and sexual vulnerability for white men to protect would become vital during the late nineteenth and early twentieth centuries. These concerns supplemented a number of cultural developments, such as the rise of Australian nationalism, concerns about the white birth rate, and the emergence of racial and sexual pseudo-science. McGrath reports that white women perceived Aboriginal women as a threat, not only because of their sexuality but also because they were always more knowledgeable and skillful in their environment. 33 However, despite the shame surrounding sexual interaction between Aboriginal women and white men, it is clear such liaisons took place. 34 McGrath reports that, although the white “pioneer family” was reified in colonial legend, in fact the family of mixed descent was more characteristic of Australia’s “nation builders.” 35 By contrast, the domestic space of the white family home was regarded as the site where immigrant mothers and children properly belonged. A white woman could be seen as betraying her race if she had sex with an Aboriginal man. Such sexual contact would also affect the white husband’s patriarchal authority, as it was thought that for a white woman to have sex with an Aboriginal would eventually render white men

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impotent and cause contamination to white society through mixed blood. 36 These projected values concerning the dangerousness of the Aboriginal man contrasted markedly with the supposed purity of white women. A REVALUATION OF THE NARRATIVE IN LIGHT OF FOUCAULT’S WORK Foucault’s work did not deal extensively with colonialism, but scholars have read into his work traces of his concerns about the impact of colonialism. Foucault’s research nevertheless has inspired the new field of postcolonial studies. 37 Given that I have already outlined some of Foucault’s ideas on race, I now turn to his methodological approach to provide an indication of how both the Wolfe thesis and the narrative of dispossession might be re-examined. Foucault had a pragmatic approach to the development of theory and the use of concepts. He regarded theory as a “tool box”: a different conceptual tool might be deployed to examine a specific problem under investigation. 38 Garland writes that in Foucault’s oeuvre there is “no ready-made theoretical system that can be ‘applied’ by others. Instead, what Foucault provides to us is a series of quite specific, precisely theorized analyses, each one mobilizing a customized methodology designed to address a theoretically defined problem from a strategic angle of inquiry.” 39 This approach has been of value in this work as it has enabled me to locate heterogeneous strands of arguments as regards economic thought, sexuality and spatiality and show how they were imbricated in different ways into different forms of legal analysis. Secondly, Foucault argued that history should be written from a radically different perspective, compared with the history as a narrative of the evolution of the past. Poster says, “He does not tell the story of how ‘the seamless web of yesteryear’ leads slowly and inexorably into the present.” 40 Rather, his genealogical approach was a method “to trace the uneven and haphazard processes of dispersion, accumulation and overlapping that are constitutive of the event.” 41 In light of Foucault’s methodology, I conclude with an analysis of Wolfe’s approach and a critique of the narrative of dispossession. Wolfe argues that the invaders have come to stay. In his interpretation, settler colonialism cannot be localized in a specific instance of dispossession, but that it continues as a feature over the entire national territory. 42 His approach rests on the binary division between natives and invaders: the frontier is seen as a “linear model, a binary opposition between civilization and savagery.” 43 An alternative and preferable method to Wolfe’s thesis is to regard colonialism as a collection of heterogeneous assemblages of ideas. Thom-

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as says, along the same lines, that colonialism should not be seen as “a singular enduring discourse, but rather a series of projects that incorporate representations, narratives and practical efforts.” 44 Foucault did not accept any pre-analytical structure or political rationality as a given. His epistemology rejects the idea of any fixed political regime; instead, his approach aims to reveal the particular configurations of power/knowledge in the formation of such an assemblage. This approach does not mean that such concepts and entities are not real. In essence, the distinction between “real” and “fictitious” is untenable because, in Foucault’s worldview, everything is “practice.” 45 Foucault’s work does not deal with the deployment of hierarchical opposites, such as those drawn in Wolfe’s work. This is the case as binaries deploy notions such as civil/uncivilized, black/white or state/society. Perhaps Foucault’s main complaint about binaries might not have been the feminist complaint that binaries indicate that one term is always dominant (man over woman), but rather that to give preferences to one binary distracts from a genealogical approach more generally. Morgensen argues that Wolfe’s emphasis on the elimination of indigenous people must be seen as the “exemplar of biopower.” Morgensen contends that Foucault sees biopower as displacing the power of the sovereign to “make life” or “let die.” 46 While Wolfe’s argument depends on the elimination of the native, biopower may foster life. This amalgamation of ideas (fostering life/elimination of life) works two ways, one being “inclusive,” the other being “exclusive.” Exclusive valorization therefore ensures the neutralization, suppression or eschewal of those parts hostile to the project of the state. 47 Assuming we regard dispossession to be not only an initial removal of indigenous people from land, these forms of calibration have continual ongoing significance. This is the case as Aboriginals are being constantly remade as citizen subjects, property owners, entrepreneurial subjects or the bearers of human rights. 48 I have narrated the stereotypical account of dispossession. This approach, as with Wolfe’s approach, argues that dispossession was enacted by the colonial drivers of capital and profit. This dynamic occurred in situations where there was a clear dichotomy between Aboriginal social structures and the Western economic model with its necessity for the physical possession of land. As Rowley states, “Land and not labour was the asset sought by British settlers.” 49 As regards the narrative of dispossession, the central elements of this account hold that from the beginning of the settlement of Australia social lines were drawn between Aboriginal society and white settlers. Firstly, Aboriginals represented a realm of disorder and untrammeled desire. Secondly, they were seen as mentally and physically inferior. Thirdly, they did not struggle to transform the environment. The consequence was a discourse that justified the exclusion of Aboriginals from the land.

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This constructed view of interracial relations maintained that, firstly, the white, patriarchal heterosexual family established and enforced the parameters of who belonged in the nation, racially speaking. Secondly, sexuality was also connected with economic evaluations of Aboriginals because their dangerous sexuality was constructed as a threat to the economic viability of farm properties. My account of how these various strands of discourse amalgamated into one account has been particularized in some cases through local studies. I follow Harris’s argument that to understand dispossession one must examine the array of disciplinary technologies that draw attention to local issues and forms of power that operate between settlers and Aboriginals. 50 We should pay attention to the capacity of state authorities to make allocations of land in individual lots, which facilitated the state in governing families from a distance through a variety of expert knowledges, such as cartography, demography, accounting and mapping. These knowledges facilitated the surveying and division of land into legal parcels that enabled government officials to make grants of land. As Dean Neu has shown, the broader political context was hostile to the situation of indigenous people, and the utilization of disciplinary technologies enabled colonial powers to translate colonial objectives into practice. 51 I turn to an examination of these technologies in the next chapter, particularly as regards the idea of property as a “device.” NOTES 1. Voyce, Malcolm. “Native Doctors in New Zealand: The Tohunga Suppression Act 1907.” Oceania 60/2 (1989): 99–124; Firth, Raymond. Economics of the New Zealand Maori. Wellington: Government Printer, 1959. 2. Wilder, Laura Ingalls. Little House on the Prairie. London: Methuen Children’s Books, 1981, 142. 3. While settler colonialism is often confused with colonialism more generally, settler colonialism is a distinct imperial formation. Both colonialism and settler colonialism are based on the idea of exogenous domination. However, only settler colonialism seeks to replace the original population of the colonized territory with a new society of settlers. This new society often, from the colonial metropole, needs land so it accomplishes this through treaties with indigenous inhabitants, or simply by violence (LeFevre, Tate. “Settler Colonialism.” In Oxford Bibliographies in Anthropology. Oxford: Oxford University Press, 2015). See Veracini, Lorenzo. Settler Colonialism: An Overview. London: Palgrave Macmillan, 2010 for a full discussion. 4. Wolfe, Patrick. “Settler Colonialism and the Elimination of the Native.” Journal of Genocide Research 8/4 (2006): 390. 5. Veracini, Settler Colonialism: An Overview, 8. 6. I am grateful to Svirsky, Marcelo. “Resistance is not a Structure.” Settler Colonial Studies 7/1 (2016): 1. 7. Wolfe, Patrick. Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event. London: Cassel, 1999, 163–64; Wolfe, Patrick. “Recuperating Binarism: a heretical introduction.” Settler Colonial Studies 3/3–4 (2013): 257.

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8. My focus on dispossession is mainly meant to refer to the initial removal of Aboriginals from farming properties. As regards its rapid spread, Evans has shown that with the onset of pastoral farming in 1840 the frontier did not merely spread, it “galloped.” He estimated that in the 1860s period it advanced in Queensland at the rate of 300 kilometers per year. See Raymond Evans. 2004. “Plenty shoot ‘em’: the destruction of Aboriginal societies along the Queensland frontier,” in Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History, ed. A. D. Moses. New York: Berghahn Books, 163. 9. Anderson, Kay and Colin Perrin. “Beyond Savagery: The Limits of Australian ‘Aboriginalism.’” Cultural Studies Review 14/2 (2008): 147. 10. Interpretations of “contact history” have evolved through a series of changes which has usefully been called “old history,” “the new history” and “the new right history.” For the strongest approach of the new right history, see Windschuttle 2002 and the response by Reynolds 1982. I acknowledge the strand of anthropology that counterbalanced the weight of colonial oppression and racism with a focus on Aboriginal agency. I also acknowledge the critique of “internal colonialism,” and the idea of a “hybrid economy,” ideas which I do not develop. For a review of both of these approaches, see White, John. “Histories of Indigenous-Settler Relations on Internal Colonialism and Hybrid Economy.” Australian Aboriginal Studies 1 (2011): 81–96. 11. Kelly, Mark. “Racism, Nationalism and Biopolitics: Foucault’s Society Must Be Defended, 2003.” Contretemps 4 (2004): 62. 12. Stoler, Ann. Race and Education of Desire. Durham: Duke University Press, 1995, 84. 13. Ehlers, Nadine. “Onerous passions: colonial anti-miscegenation rhetoric and the history of sexuality.” Patterns of Prejudice 45/4 (2011): 320. 14. Foucault, Michel. The History of Sexuality. London: Penguin, 1978, 34. 15. Foucault, The History of Sexuality, 324. 16. Foucault, The History of Sexuality, 42–43. 17. I later note some scholarship which gives nuance to this view. The Mabo case, Mabo v Queensland (No 2) [1992] HCA 23, invalidated the doctrine of terra nullius and the Native Title Act 1993 (NTA) imbedded the notion of native title into statute law. 18. Banner, Stuart. “Why Terra Nullius? Anthropology and Property Law in Early Australia.” Law and History Review 23/1 (2005): 96–131. Land ownership was perceived differently within Aboriginal traditions than it was in European law. Aboriginal boundaries were marked by landscape features, which were connected to stories in dreamtime accounts which were passed through an oral tradition. These were more flexible than the system of land tenure based on allocated lots. Aboriginals were aware of their traditional boundaries and land by kin groups (McGrath, Ann. Born in the Cattle: Aborigines in Cattle Country. Sydney: Allen & Unwin, 1987, 24). 19. Fenn, Stewart. “Grey Owl in the White Settler Wilderness: ‘Imaginary Indians’ in Canadian Culture and Law.” Law, Culture and the Humanities 14/1 (2018): 163. 20. Gammage, Bill. The Biggest Estate on Earth: How Aborigines made Australia. Sydney: Allen and Unwin, 2012. See also Pascoe, Bruce. Dark Emu: Black Seeds, Agriculture or Accident? Broome: Magabala Books, 2014. Gammage has argued that the earliest landscapes that early European settlers encountered were man-made rather than natural. He argues that Aboriginals modified the land in a predicable way to make food supplies reliable. He concludes, by showing how Aboriginals farmed, but why they did not become farmers, as he argues in some instances they cultivated vegetables and fruits which were stored. He argues they choose a mobile style of life because it enabled them to live comfortably in a variety of climates and terrains, which gave in fact more flexibility than that provided by sedentary agriculture. 21. Sydney Gazette, 19 August 1824; Sydney Morning Herald, 7 November 1838. See also Mitchell, Jessie. “Flesh, Dreams and Spirit: Life on Aboriginal Mission Stations, 1825–1850: A History of Cross-Cultural Connections.” Unpublished Doctorate, Canberra: ANU University, 2005, 97.

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22. “Aboriginals,” Port Philip Gazette, Saturday, 10 November 1838, 3. I am grateful to Jensz, Felicity. “‘Ohne Neid’ (‘Without Jealousy’): Moravian Missionaries’ Ideas of Land Ownership in Colonial Victoria.” In Rethinking Colonial Histories: New and Alternative Approaches, edited by Penelope Edmonds and Samuel Furphy, pages 219–31. Melbourne: RMIT Publishing, 2006, 222. 23. It was argued that property in land resulted in mixing one’s labor with the soil to render it more efficient than it would have been if it had been left in its natural state. In effect this meant the deployment of settled agriculture based on cultivation, irrigation and enclosure. The other requirement was that there was a system of property law which protected the work of the laborer (Wolfe, Patrick. “Land, Labor, Difference: Elementary Structures of Race.” American Historical Review 106/3 (2001): 869). For an explanation of Locke’s ideas, see Arneil, Barbara. “Trade, Plantations, and Property: John Locke and the Economic Defence of Colonialism.” Journal of the History of Ideas 55/ 4 (1994): 591–609; Dorsett, Shaunnagh. “Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in Canada and Australia.” Griffith Law Review 4/2 (1995): 227–37. 24. Dorsett, Shaunnagh G. “Land Law and Dispossession: Indigenous Rights to Land in Australia.” In Land Law Themes and Perspectives, edited by Susan Bright and John Dewar, 279–301. Oxford: Oxford University Press, 1998, 282. 25. Australian, 26 December 1840; Sydney Gazette, 24 June 1804 and 23 August 1822. 26. Mitchell, “Flesh, Dreams and Spirit: Life on Aboriginal Mission Stations, 1825–1850: A History of Cross-Cultural Connections,” 99. 27. Reynolds, Henry. With White People. Ringwood: Penguin Books, 1990, 231; McGrath, Born in the Cattle: Aborigines in Cattle Country, 50. 28. Gilman, Sander. Difference and Pathology: Stereotypes of Sexuality, Race, and Madness. Ithaca: Cornell University Press, 1985; Henningham, Nikki. “‘Hats off, Gentlemen, to our Australian Mothers!’: Representations of White Femininity in North Queensland in the Early Twentieth Century.” In A Race for a Place: Eugenics, Darwinism and Social Thought and Practice in Australia, edited by Martin Crotty, John Germov and Grant Rodwell, pages 156–66. Callaghan: University of Newcastle, 2000. 29. Huggins, Jackie. Sister Girl. St Lucia: University of Queensland Press, 1998, 17. 30. Relevant here is also the issue of the “problem” of Aboriginals who often provided the physical labor on farming properties and hence their proximity was dangerous (McGrath, Born in the Cattle: Aborigines in Cattle Country). For these reasons, he must be “constrained” (Evans, Raymond. “The Hidden Colonists: Deviance and Social Control in Colonial Queensland.” In Social Policy in Australia: Some Perspectives 1901–1975 , edited by Jill Roe, pages 74–100. Cassell: Australia, 1976, 95; Wolfe, Patrick. “On Being Woken Up: The Dreamtime in Anthropology and in Australian Settler Culture.” Comparative Studies in Society and History 33 (1991): 210. Kidd, in her study of Aboriginals in Queensland, has shown how English notions of “reformatory conviction” were part of a “practice of identification and legislated removal.” Thus, unschooled children, the poor, itinerants and the destitute were all judged as unreliable or unsuitable without corrective treatment (Kidd, Rosalind. The Way We Civilise: Aboriginal Affairs, the Untold Story. Brisbane: University of Queensland Press, 1997, 20–21). 31. McGrath, Born in the Cattle: Aborigines in Cattle Country, 68; Evans, Raymond. “Don’t you remember Black Alice Sam Holt? Aboriginal Women in Queensland History.” Hecate 8/2.1 (1982): 15. 32. Threlkeld, Lancelot. Australian Reminiscences and Papers of L. E. Threlkeld, Missionary to the Aborigines, 1824–1859, edited by Neil Gunson. Canberra: Australian Institute of Aboriginal Studies, 1974, 49. 33. McGrath, Born in the Cattle: Aborigines in Cattle Country, 50. 34. Robert, Hannah. “Disciplining the Female Aboriginal Body: Inter-racial Sex and the Pretence of Separation.” Australian Feminist Studies 16/34 (2001): 69–81. 35. McGrath, Ann. “Consent, Marriage and Colonialism: Indigenous Australian Women and Colonizer Marriages.” Journal of Colonialism and Colonial History 6/3 (2005): 1–12.

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36. Haskins, Victoria and John Maynard. “Sex, race and power.” Australian Historical Studies 36/126 (2009): 191–216. 37. Young, Robert. “Foucault on Race and Colonialism.” New Formations 25 (1995): 1. 38. Foucault, Michel. “Prisons et asiles dans le mécanisme du pouvoir.” In Dits et Ecrits, t.II, pages 523–24. Paris: Gallimard, 1974, 523–24. 39. Garland, David. “What is a ‘history of the present’? On Foucault’s genealogies and their critical preconditions.” Punishment & Society 16/4 (2014): 366. 40. Poster, Mark. “Foucault and History.” Social Research 49/1 (1982): 117. 41. Foucault, Michel. The Order of Things: An Archaeology of the Human Sciences, translated by A. M. Sheridan. London: Tavistock, 1970, xxi. 42. Rifkin, Mark. “Indigenizing Agamben: Rethinking Sovereignty in Light of the ‘Peculiar’ Status of Native Peoples.” Cultural Critique 73 (2009): 88–124. 43. Vimalassery, Manu, Juliana Hu Pegues, and Alyosha Goldstein. “Introduction: Colonial Unknowing.” Theory & Event 19/4 (2016): 5. 44. Thomas, Nicolas. Colonialism’s Culture: Anthropology, Travel and Government. Carlton: Melbourne University Press, 1994, 97, 171. 45. Rosenow, Doerthe. “Decentring Power: The Merits of a Foucaultian Approach to International Relations.” Global Society 23/4 (2009): 499. 46. Foucault, Michel. Society Must Be Defended: Lectures at the Collège de France, 1975–1976. New York: Picador, 2003, 241; Morgensen, Scott. “The Biopolitics of Settler Colonialism: Right Here, Now.” Settler Colonial Studies 1/1 (2011): 52–53. 47. Lindroth, Marjo and Heidi Sinevaara-Niskanen. “Adapt or Die? The Biopolitics of Indigeneity—From the Civilising Mission to the Need for Adaptation.” Global Society 28/2 (2014): 183. 48. Rowse, Tim. “Indigenous Crime and Settler Law: White Sovereignty After Empire by Heather Douglas and Mark Finnane.” Journal of Law and Society 40/2 (2013): 314. 49. Rowley, Charles. A Matter of Justice. Canberra: ANU Press, 1981, 94. 50. Harris, Cole. “How Did Colonialism Dispossess? Comments from an Edge of Empire.” Annals of the Association of American Geographers 94/1 (2004): 165–82. 51. Neu, Dean. “Accounting and Accountability Relations: Colonization, Genocide and Canada’s First Nations.” Accounting, Auditing and Accountability 13/3 (2000): 268–88; Gibson, Kathy. “Accounting as a tool for Aboriginal dispossession: then and now.” Accounting, Auditing & Accountability Journal 133 (2000): 289–306. He is writing here of accountancy technologies, but the same may be said of other expert technologies.

THREE Property and the Governance of the Family Farm

Much of the false thinking about “property” stems from the residual perception that property is itself a thing or a resource rather than a legally endorsed concentration of power over things and resources. 1 However, it is not possible to study the technologies of power without an analysis of the political rationality underpinning them. 2 Implicit in the view of Western property law based on expert knowledges is the property device. What is meant by a property device? Various modern legal forms, such as the trust and the incorporated company, are forms of property ownership 3 and represent forms of “private power” that allow the operation of “government at a distance.” 4 This notion, adapted by Miller and Rose from Latour, 5 allows for the possibility of seeing what we might call “fidelity devices.” Fidelity devices refer to procedures such as accountancy practices, 6 numbers and tables, which allow action at a distance because these techniques have mobility and stability. 7 Certain of these fidelity devices were the creation of eighteenth-century technologies, such as particular forms of accountancy and cartography, which allowed the state to assign land. Fidelity devices operate as “immutable mobiles” to relay and implement consistent and reliable forms of intervention. Fidelity devices thus allow consistency between the state and the locality. Rose and Miller indicate how the strategies and programs of the center of government link themselves to the activities of the far distant school, prison or hospital. 8 They use the notion of “translation” to describe how local agents convert directives into their own terms, especially within a context of local agency and networks of shared interests. What do these fidelity devices connect to? Here the idea of “property as a device” is instructive. Bodies of laws, such as the law of contract or 47

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property, build upon long-established tradition, which recognizes “semiautonomous realms.” These realms provide nodules of semi-autonomy, which allow the “state” to govern from a distance in both a “constitutional” and “spatial” sense. 9 Several features of ruling from a distance through property devices need clarification. Firstly, those who own property or control a trust or company can exercise a form of internal governmental power. For instance, writing of property owners, Cahn says of Hale’s views on property that “property owners” were able to retain their property or part with it as they chose; owners are therefore like petty sovereigns who can dictate the terms and conditions of their ownership. Property becomes a type of political power and may be viewed as the exercising of a form of private government. 10 The legal freedom of property owners is restricted by the constitutionality of the arrangement, whether it be a trust, company or piece of private property. This allows some degree of freedom, which is limited by the continuous, low-key, controlled interventionism of the state. 11 For instance, trustees will be removed from office in family estates should they endanger the trust property or show a lack of capacity in the exercise of their duties. 12 Secondly, property devices have spatial implications. This claim is made for three reasons. Firstly, in allocating land, the state is creating order and certainty for commerce or “an assured framework of dealing.” 13 Secondly, through arranging the security of land boundaries, the state also facilitates the extension of its power over time and space. This breaks down distance as an obstacle of control over such arrangements. Thirdly, these devices enable us to see legal forms as being involved in the creation of “governable spaces.” It is now possible for the state to govern not only the specific farmer, but the “farmer situation” more generally. In other words, farmers in a cohort who exhibit specific non-viable factors and who are at risk should move out of the industry and allow their spatial area to be bought up. 14 A DIAGNOSTIC APPROACH TO PROPERTY AND FAMILY RELATIONS Minogue argues that property is “like an iceberg.” 15 This analogy may also be applied to internal social relationships amongst property-owning families. Above the figurative waterline lies the legal apparatus—the company structures, the trust forms, the partnership agreement and the recognition of “legal” or equitable forms of ownership. Below the waterline is the biggest and most important part of the iceberg: the social structure that supports the legal apparatus. The approach to property adopted here seeks to demonstrate how this far greater part of the property problem was governed. Like Twining and his notion of “surface

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law,” I contend that the “cultural stuff” that constituted family property existed beneath the “surface.” 16 This analogy suggests that the state’s dealings with property’s underlying social structures should not be discounted, but rather carefully explored. This chapter does so via an extension of Foucault’s work: I seek to identify what Dean calls the “analytics of government” by exploring how the state is involved in structuring and adjustment of its relationship with property-holding subjects. 17 Systematic ruling of citizens can also be approached via particular occasions on which authorities call into question certain activities, whether it be unruly pupils, the idle, the sexually dangerous or unproductive dependents. 18 An essential aspect of the diagnostic approach is to ask, “what is the part of ourselves that others seek to know and act upon”? 19 This work argues that in the colonial settlement of Australia the state was attempting to adjust property relationships through the “ethical element” of personal relationships within a given family. I perceive this to be a “character element”: in the context of land allocation in rural Australia this approach requires one to examine the concerns of governmental agencies about “character,” productivity, and the problem of unruly and irresponsible families. In other words, state policies expressed concern about productive labor and the willingness of property owners to maximize the wealth created by family property ownership. THE “LABOR/WORK” PROBLEM AND CONCERNS ABOUT IRRESPONSIBLE FAMILY LIFE The first element of this diagnostic approach seeks to locate the moral substance of the subject to be governed. I have already referred to the psy-interventions and how the state governs through such practices. In the case of family-owned property, I take this element to be the ethical substance in a family concerned with productive labor, as well as the familial response necessary to support kin in need. As will be shown, there were various manifestations of this perceived “substance.” One was the reproductive capacity of mothers, who were perceived as necessary for building up the population. 20 Another was the perceived domestic role of women: some considered that they should not work in the fields but instead provide support for their husbands in the home. 21 Conversely, those with positive attributes towards motherhood or work in general should be rewarded. Australia was promoted in the early nineteenth century as a place that needed the “best bone and sinew of the British Isles.” 22 In this light, we might understand the “pull” factors for emigrants. These included the desire to lead a less monotonous life, the desire to sell their labor more

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profitably, the availability of assisted passage, the buoyant economy of Australia and the “lure” of an idyllic existence on a pioneer farm. 23 In the rougher colonial setting, the pre-existing ethic of the self-made man, self-control, thrift, continuance and sobriety was demanded with a new emphasis. Idleness was damned as the root cause of moral abandonment and debauchery. The incapacitated and the infirm did not fit into the colonial plan. Allied to this was a concern that some men might go “bush” (or in other words, native). Colonial progress could only be achieved by unremitting struggle with untamed nature. 24 The Victorians were obsessed with the problem of self-reliance and consistently attributed poverty and lack of progress to indolence, improvidence and a lack of frugality. 25 Along with the development of the notion of “moral citizenship” there existed the contrasting notion of the moral menace exemplified by people who could not or would not provide for themselves. 26 In Australia, the development of the economy depended on an adequate and regular labor supply. In this regard, the government sought to maintain an adequate immigration level to sustain population growth. At later times, there was fear of strikes, such as the shearers’ strikes of the 1890s. Squatter Archibald Archer told the Queensland Assembly in 1868 that a “pauper was vermin who should not breathe the same air, or eat the same food, or do aught else that is done or thought by freeman.” 27 T. G. Turner wrote in 1898 that “pale faced, dispirited, listless mendicants should be cast on a desert island.” Evans indicates that the (colonial) new nation was still touchy about its hereditary convict stains, and was setting ambitious moral standards to show that it could be an energetic and enterprising race. 28 These concerns were fortified by ideas of social Darwinism current in the nineteenth century. As regards work on family farms, there was the problem that older laborers (many old jailbirds and expiree convicts) were exceedingly independent and rowdy. Curr Roberts noticed that the lowest class of laborers had the whip hand, especially when the assignment of convicts ceased, and they knew it. 29 Other ethical problems included regulating what could be called unruly and irresponsible families. As I have argued, nineteenth-century colonial regimes developed a “family agenda”: the family was regarded as a convenient vehicle for other issues concerning population, reproduction, inadequate mothering, and the proper family administration of family assets. At the end of the nineteenth century, following a period of national uncertainty—exhibited by the slowing of the economy and a decline in the birth rate—the government became concerned that the family was not playing its proper role in nation building. 30 Numerous inquiries 31 into family life showed the anxiousness of legislators to promote stable family life. In the rural context of the late nineteenth century, the continu-

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ation of stable patriarchal families in the rural sector was regarded as the basis for the continuation of male inheritance of family property. There were also concerns about individual behavior in the areas of income saving, alcohol abuse and sexual promiscuity. 32 In the context of succession to family property, different state governments conceived that there was a problem with families becoming destitute when the male breadwinner left his estate to a non-family member. By contrast, there was concern that wives who had helped build up family estates could be appropriately rewarded if their husbands died. 33 One should also mention the issue of divorce, which split productive family land and often made one spouse dependent on welfare. In the same period, with the growth of middle-class ideals, there arose social conflict about the proper role of women, reflected in expectations that motherhood required women neither to work in the fields nor to abandon their husbands. In the last twenty years, there has been increasing recognition of the problems associated with “handing over the family farm.” These problems have been brought about by the aging rural population, rural depopulation and issues surrounding the financing of successors. 34 THE SOCIAL “SUBSTANCE” IN THE PROPERTY-RELATIONSHIPS THAT GOVERNMENTS SOUGHT TO CONTROL The second methodological concern is to delineate the internal elements to be governed. Here I concentrate on the “property-relationship” and how the social life of families has been conceptualized in terms of governance. My focus is on the “moral substance” of the land-owning family and how governance takes place through the “nodal power arrangement” 35 that constitutes the property-holding form. An examination is therefore made of the “ethical substance” of property-relationships, which I take to be the capacity of personal productivity and kin support; this is key to the location of the governing substance of family property holdings. It is rightly conceived that reciprocity is the engine that drives commitments. 36 In this regard, I draw on debates concerning old-age pensions, 37 maintenance for deserted wives 38 and Family Provision law in order to develop my argument about “property-relationship.” 39 One of the essential aspects of human character in Victorian times was the notion of “self-help.” This was not seen as selfish individualism; rather, it involved helping oneself through helping one’s neighbors. 40 Other essential aspects of character included the common virtues of thrift, industry, perseverance and diligence. 41 These virtues underpinned the general idea of family property, which was perceived as the physical representation of an emotional bond between family members. Failure to pro-

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tect family property indicated a lack of “moral fiber.” 42 Furthermore, it was expected that parents should support children and children should support parents. In Australian Parliamentary debates and in the reports of Magistrates’ Courts it was commonly asserted that “there was a solemn obligation resting upon a parent to provide for children, and for the children to relieve the necessity of the parent.” One speaker argued that to interfere with that obligation was “to seriously undermine the moral fiber of the community.” 43 It was considered that spouses who were guilty of sexual misconduct or desertion should not be rewarded with property. 44 Marriage was seen as an economic partnership and it was thought men in particular should not abandon such responsibilities. 45 “Property” therefore was not only a representation of the emotional bonds that tied families together but also a socio-economic structure that linked kinfolk through productive labor. This notion required that financial resources should be kept within the family and property not left to undeserving persons. A spouse who had worked alongside her partner for many years should also be rewarded with a property division. 46 A variety of social legislation has shown the state’s concerns over the moral substance of family property holders, as well as how the state was concerned to shape ideas of reciprocity, mutual care and intergenerational support. For instance, in the context of Testators’ Family Maintenance Legislation, 47 both the widows who had helped to build up family assets on farms and adult sons who had contributed to the farm were rewarded with sizable inheritances, often to the detriment of non-farm children (including daughters). 48 In the divorce context, men traditionally received the greatest share of the assets. However, women’s contributions were recognized to the extent that they helped to consolidate family property through their contribution as homemakers. 49 I take the ethical substance to be the self-adjustment mechanism that families could regulate to further their own improvement and development. PROPERTY AS A TECHNICAL/SPATIAL DEVICE The third element of this “analytics approach” asks how the property relationship is to be governed. Implicit in the new style of government of the eighteenth century 50 was the notion that government consists of a range of procedures, analysis, reflections, calculations and tactics. 51 These devices were not neutral as they reflected social values that were instrumental in property governance. This lack of neutrality is illustrated in the following section, in which I outline some eighteenth-century scientific developments that enabled the spatial construction of property, and show how ideas of productivity within the farming context were based on ideas of “moral citizenship.”

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SCIENTIFIC DEVELOPMENTS AND PROPERTY Long before the settlement of Australia, English culture had developed methods for documenting land transactions. 52 From the eighteenth century, these methods depended on scientific forms of calculation, 53 such as surveying, 54 accounting, 55 cartography 56 and mapping, 57 all of which could be used to formulate spatial and territorial allocations. 58 Several scholars have shown the importance of the intellectual control of space by Europeans through the development of the legal concepts of territory and jurisdiction. 59 Intellectual control over appropriate space through systematic measurement, such as geodetic triangulation and statistical calculations, allowed the British to discipline Australia using their science and on their own terms. 60 Fundamental to this intellectual control of space was the facility to divide and sell land in lots or parcels. 61 Under English Common Law, British sovereignty was declared over the Australian territories in their entirety, that is, Britain defined the spatial area of Australia using concepts from British law. This declaration of a jurisdiction that was both spatial and territorial came to be associated with liberal notions of individual equality: the individual came to be the bearer of rights associated with a person’s attachment to territory. 62 The importation of scientific method into Australia also provided the basis for penology, demography, 63 and statistics; these formed the basis of techniques used by the state to collect information. 64 The use of political economy, with its conceptions of wealth and work, required empirical answers to its “moral calibrations” through the use of measurement, forms of accounting and the classifications that constituted emerging notions of the “economy.” 65 In the Australian context, development of agricultural statistics enabled that sector to come within the vision of the state, making possible a new way of thinking about agriculture. 66 These scientific transplantations and local developments coincided with ideas of moral citizenship as regards productivity, which are discussed below. Scientific developments and the growth of a viable local economy led to the allocation of land allotments. The official history of how the Australian landscape was settled via family farms is well known. 67 This history has generally assumed that property, through the techniques of measurement and methods of allocation, became a commodity. With the commodification of land came the hallmarks of English property law, namely ownership, alienation and exclusion. The sale of land was assisted by the Torrens registration system, which was based on public registration of title and thus simplified the transfer of land. Finally, the transplanting of English legal culture saw the introduction of trust law, company law and accountancy practices. These legal transplants were maintained through legal education and the foundational classifications of English law. 68

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THE FAMILY FARM AS A TECHNICAL ARRANGEMENT In the previous section, I outlined how the allocation of land was underpinned by scientific discoveries. I now examine how forms of ownership as regards the farm itself have reflected, and continue to reflect, the “socio-technical” aspect of farm ownership. Duncan’s work on colonial plantations invites us to see the forms taken by family farms as a social and a technical arrangement. By conceptualizing the farm unit as a technical arrangement, it is possible to examine how specific forms of scientific knowledge shape family life. In this way, the family farm can be viewed as an abstract space resulting in the “commodification and bureaucratization of everyday life”—a tool for governance over physical territory, a means to strip the inhabitants of former social attachments and to reconstitute them “as workers through the use of space-time strategies of monitoring and control.” 69 In this way, property in the context of the family farm inevitably becomes a socio-technical arrangement combining notions of kinship, residence and the technicalities of property ownership. Such a construction of the “family farm” is an historical one, with its roots in the European settlement of Australia. In the following section, I show that this socio-technical arrangement of the family farm reflects a social life that is itself mediated by both social and technical aspects inherent within legal notions of property. PROPERTY AS A FACILITATIVE DEVICE Property law, in conjunction with the family as a social unit, may be seen as a “facilitative device.” 70 In this context, the phrase “facilitative device” refers to a particular type of laws known as “facilitative laws,” which do not impose duties or obligations, instead providing individuals with the facilities they need to achieve their goals. Such laws include those that confer on individuals the power to regulate relationships with others through marriages, contracts, trusts or property ownership. 71 Facilitative laws allow a degree of “local” freedom, although in property law this freedom may be constrained by a constitutive document and by the relative power relations of those who have interests in the property-holding form. 72 Property law as a facilitative device recognizes that those who own property operate in a “semi-autonomous realm” through what has been called a form of “private government.” 73 In this context, Cohen has noted the connections between property and sovereignty, stressing that property rights provide not simply dominion, or power over things, but imperium, or power over other people. 74 Pollock has described the family settlement as imperium in imperio (an empire within an empire), with all

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the constitutional safeguards of a complex political system. 75 Focusing on the socio-legal structure of the family farm implicit within a facilitative device is helpful as it enables us to visualize how power is dispersed throughout the State, and is therefore implicated in all purportedly private transactions. 76 PROPERTY AS A SOCIO-TECHNOLOGY OF CIRCULATING POWER Foucault’s idea of “power knowledge” demonstrates that truth and knowledge are mutually dependent. Within the realm of science, what functions as orthodoxy or “truth” is determined by the scientific community, which has the power to do so as it is those individuals and institutions that set up the rules used to assess scientific theories. 77 In similar fashion, the “scientific” calibrations of political economy legitimate or enshrine prescriptive views on moral citizenship. The idea of moral citizenship was constituted by a binary system of values in which productive labor was evaluated against that considered unproductive. This discourse of productivity 78 became prescriptively embedded within the family economy, dictating that those involved in labor on family property must be hard working and share the proceeds of their labor. Such notions coincided with the new type of rational selfactivated conduct promoted within capitalism, which must be now seen as the economic. 79 The goal of the expansion of the British Empire was perceived as integral for securing the needs of commerce through the allocation of property rights. The form of capitalism endorsed by the expansion of empire was seen to rest on the allocation of private land holdings; from the 1830s the doctrines of the bourgeois political economy were propagated widely in pulpit and press. 80 A stable economy was believed to be most effectively achieved through a patriarchal form of family structure based on values that privileged productive male labor. Such a goal endorsed notions held in classical economics, which defined women in terms of their status as dependent mothers and housewives. 81 This prioritization was seen as necessary to keep the farm viable in the long term. Hegemonic values of male labor (“power”) were endorsed in a variety of different discoveries in eighteenth-century science (“knowledge”). The “bureaucracy” of statistics produced new conditions for administrative rulings and impositions in the sense that they created new norms to be set and adhered to. 82 The mutually dependent and supportive interrelationship between these concepts of “power” and “knowledge” are illustrated below.

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SCIENCE, LAW, AND THE ROLE AND STATUS OF WOMEN In the early twentieth century the role and status of women was fixed by certain scientific findings that subordinated their place in society. For instance, the Harvester wage-fixing case found that a reasonable and fair wage was one that allowed an unskilled worker to support himself and his wife in “frugal comfort.” 83 This decision reflected broader social policy that this worker was a male “breadwinner” with a housewife as a dependent, and so rationalized and legitimated the status quo. 84 At about the same time, national statistics disguised the extent to which Australian women were engaged in farm labor. It was thought that “women in the fields” was not something that a new nation should reveal. This disguising of women’s labor may be seen as an attempt to downgrade the women’s contribution to the farm. 85 This compilation of statistics may not have been consciously calibrated but in any event reflected socio-sexual norms. In 1995, the Australian Bureau of Agricultural Economics and the Australian Bureau of Statistics produced a report entitled Women on Farms. 86 This report provides a more recent example of the under-accounting of women’s work on farms. Alston claims that this is due to a narrow definition of “work” and a focus on tasks of importance to men. Alston shows that so-called farmers’ wives were seen to provide help in the domestic realm, such as cooking and cleaning, keeping the vegetable garden and rearing young animals, but these tasks did not amount to an “economic contribution” and therefore were not seen as “work.” 87 Similarly, the ways in which male labor has been evaluated in rural divorce cases has typically resulted in men being rewarded more than women. 88 Such outcomes were based on notions of a supposedly “economic man” (an abstraction), 89 on the idea that individuals made up the economy rather than the household, 90 and on formulations that devalued non-productive labor, such as housekeeping and the raising of children. 91 In addition, the development of the efficiency movement and its penetration into the home allowed experts to promote principles of scientific rationalism—principles that undermined feminine values as regards naturalism and housewifery. 92 PROPERTY AS A FORM OF TECHNICAL KNOWLEDGE “Property” as a form of technical “knowledge” had an inextricably social aspect because a farm unit provided a family with exclusive economic space. 93 This allowed the State to give special fixity and visibility to the security of land (guaranteed in part by maps), and also gave governments the ability to stretch their authority over time and space. 94

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As mentioned above, conceptualizing property as a form of facilitative device necessarily incorporates certain embodying technology (knowledge), which allows a degree of “local” freedom. This freedom was an important facet of government in colonial Australia, as settlers were encouraged to develop autonomy and self-sufficiency through ownership of land. Examples of this include the granting of land to ex-convicts to provide for their self-support and to quell any troublemakers, 95 and the Closer Settlement policies, with the various “ideological burdens they bore”—Christian Socialism (the Victorian schemes), the obligations of empire (the Western Australian Group Schemes), and the patriotic fervor of Soldier Settlement. 96 Common to all these schemes was an attempt to open up new spaces and to increase the density of the population therein, 97 to redistribute land and shape class formation, and also to provide equality of opportunity and independence. 98 In each case, the State manipulated the various interest groups involved and their respective ideas of freedom to assist local autonomy as this was regarded as the best means to assist a form of agriculture based on family farms. Simultaneously, the State was deploying the long historical tradition of “property as rights” for agrarian people, 99 as well as ideals of selfsufficiency and land ownership; such oversight sought to encourage the acceptance of structural change in the economy. In this way, the State ruled and continues to rule through farmers’ very freedom by invoking ideas of independence and autonomy. 100 In this context, the facilitative nature of property, together with the social life constructed around it, allowed the State to inculcate and manipulate ideas of proximity as an object of social policy. For instance, at the time when the physical limitations of settlement were the coastal mountains, officials expressed concern that if settlers moved beyond this area they would lose their “civilization”—the rationale being that “closeness produces civilization.” 101 As a result, according to this notion of “regulated freedom,” each settler was allocated land at a sufficient distance from his neighbor to be able to keep him in view, and hence encourage the development of rural communities. PROPERTY AS A FORM OF LONG DISTANCE CONTROL OF BRITISH INVESTMENTS Connell and Irving have argued that property was historically a social and technical device that allowed British investors “long distance control” of their investments in two key ways. 102 Firstly, accounting and legal practices structure relationships and thus assist the State in acting at a distance. These devices make it possible to obtain fidelity or confidence over distance. 103 Fidelity emerges when assemblages of heterogeneous elements, such as legal taxonomies and procedures, are utilized, trans-

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forming unreliable actions into regular and observable actions. 104 Ideas of trust accounting (capital/income) shape the administration of rural estates, ensuring minimal assets for the unproductive widow and larger amounts for the male remainderman (usually the eldest son). 105 Accountancy forms also minimize the “contributions” in divorce cases and positive waste; 106 we may say they are instances of fidelity devices achieving mobility and stability over distance. 107 Secondly, productive property discourses within family life are located within a wider set of power relations—for example, the patriarchal power relations within family life are supported by a variety of institutions connected with the farming context. These institutions—including the Family Law Court, 108 the Equity Court, 109 industrial relations courts or tribunals, 110 educational institutions for farmers and the Country Women’s Associations 111—all act in unison with each other to enforce the social aspect of property as a form of technology. CONCLUSIONS: PROPERTY AND GOVERNANCE OF RURAL PROPERTY With the settlement of Australia, the State was required to shape various ideas of land ownership to provide a basis for the orderly settlement of the colony. Much literature has described the settlement of Australia, but little has assessed the manner in which ideas about property and freedom were implicated in governance. 112 This chapter has made use of an “analytics approach” to government in an attempt to do just this: to understand the settlement process and how the idea of freedom was connected with governance. The chapter has also shown how ideas of freedom, particularly those connected with property ownership, form a teche of governance, and therefore that property can validly be seen as a sociotechnical apparatus. In conclusion, I will now consider what was accomplished, and for whom, by the form of governance identified in this chapter. Regarding what was aspired to, the common historical opinion is that the Settlement Acts were intended to give life to the yeoman ideal by opening up the land to all, particularly by establishing small farmers and their families on their own land. 113 Gammage, in his review of the Settlement Acts in New South Wales, intimates that perhaps the Acts intended to re-create an idealized rural England or, alternatively, not to help any particular group at all, but instead to “civilize the bush” and open up the land to anyone with capital. 114 The question of who gained from land selection is fundamentally different to the question of what was hoped to be achieved by land settlement schemes. One possibility, as discussed above, is the small selector. However, small selectors were few and far between. A more realistic

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probability is that it was the banks and the pastoral companies who gained primarily from the “battle to open the lands,” along with governments who received increases in both revenue and immigration. The resulting new financial regimes produced further disciplinary techniques as regards rural property. Farming families who were allocated parcels of land could only redeem themselves through work—the alternative was to exit the land. As a result, “rural property” must therefore be equated not only with spatial practices but also with the calculation of work; this was not only a means of survival, but also an activity consistent with agricultural improvement and the cruel necessity of paying rent whilst adhering to conditions of agricultural improvement in order to repay banks and governments. NOTES 1. Australian High Court in Yanner v. Eaton (1999) 166 ALR 258, per Gleeson CJ, Gaudron, Kirby and Hayne JJ at 264. 2. Lemke, Thomas. “The birth of Bio-Politics: Michel Foucault’s Lecture at the College de France on Neo-Liberal Governmentality.” Government and Society 30 (2001): 191. 3. Land may be held in joint tenancy or as tenancy in common. 4. Rose, Nikolas. Powers of Freedom: Reframing Political Thought. New York: Cambridge University Press, 1999, 49. 5. Miller, Peter and Nikolas Rose. “Governing Economic Life.” Economy and Society 19/1 (1990); Latour, Bruno. Science in Action: How to Follow Scientists and Engineers through Society. Cambridge: Harvard University Press, 1987, 219–32. Latour used the expression “action at a distance.” 6. On the role of double-entry bookkeeping in Australia see Carnegie, Gary. “Pastoral Accounting in Pre-Federation Victoria: A Case Study of the Jamieson Family.” Accounting and Business Research 23 (1993): 204–18; Carnegie, Gary. “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900).” Unpublished Doctorate, Flinders University, 1994; Carnegie, Gary. “Pastoral Accounting in Pre-Federation Victoria: A Contextual Analysis of Surviving Business Records.” Accounting, Auditing and Accountability Journal 8/5 (1995) 3–33; and for the role of the capital/ income distinction see Voyce, Malcolm. “Governing from a Distance: The Significance of the Capital Income Distinction in Trusts.” In Feminist Perspectives on Equity and Trusts, edited by S. Scott Hunt and H. Lim, pages 153–77. London: Cavendish, 2001. Some of the critical accounting literature I found helpful was Miller, Peter. “On the Interrelations between Accounting and the State.” Accounting Organizations and Society 15/4 (1990): 315–38; Miller, Peter. “Accounting Innovation Beyond the Enterprise: Problematizing Investment Decisions and Programming Economic Growth in the UK in the 1960s.” Accounting Organization and Society 16/8 (1991): 733–62; Miller, Peter. “Accounting as Social and Institutional Practice: An Introduction.” In Accounting as Social and Institutional Practice, edited by Anthony Hopwood and Peter Miller, pages 1–39. Cambridge: Cambridge University Press, 1994; Hopwood, Anthony G. and Peter Miller, eds. Accounting as a Social and Institutional Practice. Cambridge: Cambridge University Press, 1994. For the role of the expertise of professional accountants, see Chua, Fong and Chris Poullaos. “The Dynamics of Closure Amidst the Construction of Market, Profession, Empire and Nationhood: An Historical Analysis of an Australian Accounting Association 1886–1903.” Accounting Organisations and Society 23/2 (1998): 155–87.

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7. Robson, Keith. “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting.” Accounting Organisations and Society 17/7 (1992): 697; Latour, Science in Action: How to Follow Scientists and Engineers through Society, 223. 8. Rose, Nikolas and Miller, Peter. “Political Power beyond the State: Problematics of Government.” British Journal of Sociology 43 (1992): 173–205; Rose, Powers of Freedom: Reframing Political Thought, 48. 9. Rose, Powers of Freedom: Reframing Political Thought, 49. 10. Cahn, E. “Review of Freedom through Law: Public Control of Private Governing Power by Robert Hale.” New York Times, March 14, 1953, 14; Duxbury, Neil. “Robert Hale and the Economy of Legal Force.” Modern Law Review 53/4 (1990): 434. 11. Rubin, Gerry and David Sugerman. Law, Economy and Society 1750–1914: Essays in the History of English Law. Oxford: Professional Books, 1984, 10. 12. Heydon, John and Mark Leeming. Jacobs’ Law of Trusts in Australia. Sydney: LexisNexis, 2006, 318–26. 13. Hurst, James. Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836–1915. Boston: Harvard University Press, 1964, 290; Horwitz, Morton. “The Historical Foundations of Modern Contract Law.” Harvard Law Review 87 (1974): 917–56. 14. Higgens, Vaughan. “Governing the Boundaries of the Viability: Economic Expertise and the Production of Low-Income Farm Problem in Australia.” Sociologia Ruralis 41 (2001): 358–75. 15. Minogue, Kenneth R. The Concept of Property and its Contemporary Significance. In Property, Nomos XXII, edited by Roland Pennock and John Chapman, pages 53–66. New York: New York University Press, 1980, 10. 16. Twining, William. General Jurisprudence: Understanding Law from a Global Perspective. Cambridge: Cambridge University Press, 2009, 316–18. 17. Dean, Mitchell. “Governing the Unemployed Self in an Active Society.” Economy and Society 24 (1995): 559–83; Dean, Mitchell. “Administering Asceticism: Re-working the Ethical Life of the Unemployed Citizen.” In Governing Australia: Studies in Contemporary Rationalities of Government, edited by Mitchell Dean and Barry Hindess, 87–107. Melbourne: Cambridge University Press, 1998. 18. Dean, Mitchell and Barry Hindess. “Introduction: Government, Liberalism, Society.” In Governing Australia: Studies in Contemporary Rationalities of Government, edited by Mitchell Dean and Barry Hindess, 1–19. Melbourne: Cambridge University Press, 1998, 2, 8. 19. Dean, “Administering Asceticism: Re-working the Ethical Life of the Unemployed Citizen,” 91. 20. Finch, Lynette. The Classing Gaze: Sexuality, Class and Surveillance. Sydney: Allen & Unwin, 1993. 21. Deacon, Desley. “Political Arithmetic: The Nineteenth Century Australia Census and the Construction of the Dependent Woman.” Signs 11 (1985): 27–47. 22. Camm, Jack. “The Hunt for Muscle and Bone: Emigration Agents and their Role in Migration to Queensland during the 1880s.” Australian Historical Geography Bulletin (1981): 2–29. 23. Baines, Dudley. “European Emigration, 1815–1930: Looking at the Emigration Decision Again.” Economic History Review 13 (1994): 525. 24. Evans, Raymond. “The Hidden Colonists: Deviance and Social Control in Colonial Queensland.” In Social Policy in Australia: Some Perspectives 1901–1975, edited by Jill Roe, pages 74–100. Cassell: Australia, 1976. 25. Roberts, David. The Social Conscience of the Early Victorians. Stanford: Stanford University Press, 2002, 140; Collini, Stefan. “The Idea of ‘Character’ in Victorian Thought.” Transactions of the Royal Historical Society 35 (1985): 29–35; Scott, David. Refashioning Futures: Criticism after Postcoloniality. New Jersey: Princeton University Press, 1999, 85.

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26. Dean, Mitchell. The Constitution of Poverty: Toward a Genealogy of Liberal Governance. London: Routledge, 1991; Dean, Mitchell. “A Genealogy of the Government of Poverty.” Economy and Society 21 (1992): 215–51. 27. Evans, “The Hidden Colonists: Deviance and Social Control in Colonial Queensland,” 88. 28. Evans, “The Hidden Colonists: Deviance and Social Control in Colonial Queensland,” 89. 29. Karsten, Peter. Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora—The United States, Canada, Australia, and New Zealand, 1600–1900. Cambridge: Cambridge University Press, 2002, 341. 30. Gilding, Michael. The Making and Breaking of the Australian Family. Sydney: Allen & Unwin, 1991, 31–47; Caldwell, John C. and Leo Ruzicka. “The Australian Fertility Transition: An Analysis.” Population and Development Review 4/1 (1978): 81–103. 31. See, for example, New South Wales Parliamentary Debates 1916: 139 (as regards debates on the Testators’ Family Maintenance and Guardianship Act 1916 (NSW) and the Royal Commission on Old Age Pensions. Appendix to Parliamentary Debates. Victoria: Government Printer, 1907–8 and the Royal Commission on the Decline of the Birth Rate and the Mortality of Infants in New South Wales. Sydney: Government Printer, 1904. 32. Royal Commission on Old-Age Pensions 1907–8. See questions 1904, 1225, 1357, 1737, 1643. Siedlecky, Stefania and Diana Wyndham. Populate or Perish. Sydney: Allen & Unwin, 1990; Finch, The Classing Gaze: Sexuality, Class and Surveillance. 33. Voyce, Malcolm. “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm.” Australian Journal of Family Law 7 (1993): 191–224; Voyce, Malcolm. “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia.” Sociologia Ruralis 34/1 (1994): 71–83. 34. Gamble, Dennis, S. Blunden, L. Kuhn-White, M. B. Voyce and J. Loftus. “Transfer of the Family Farm Business in a Changing Rural Society.” Rural Industries Research and Development Corporation, Research Paper 95/8, 1995; Special Rural Task Force. Impact of the Social Security Assets Tests on Rural Customers. Canberra: Monograph, DSS, 1997. 35. The idea of the family as a nodal form of power arrangement is an extension of the work of Shearing, Clifford and Jennifer Wood. “Nodal Governance, Democracy, and the New Denizens.” Journal of Law and Society 30 (2003): 400–19. 36. Finch, Janet and Jennifer Mason. Negotiating Family Responsibilities. London: Routledge, 1995, 54; Singer, Joseph W. Entitlement: The Paradoxes of Property. New Haven and London: Yale University Press, 2000, 13–18; Rose, Carol. “Property as the Keystone Right.” Notre Dame Law Review 71 (1996): 329–69. 37. Royal Commission on Old Age Pensions 1907–8. 38. Twomey, Claire. Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare. Melbourne: Australian Scholarly Publishing, 2002, 1–28. 39. See Atherton, Rosalind. “Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales.” University of New South Wales Law Journal 11 (1988): 133–57; Atherton, Rosalind. “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right.” Australian Journal of Law and Society 6 (1990): 97–129; Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm”; Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia.” 40. Smiles, Samuel. Self Help. London: Murray, 1908, v–viii. 41. Stone, Lawrence. “Family Values in a Historical Perspective.” Speech delivered at the Tanner Lectures on Human Values, Harvard University, November 16 and 17, 1994; Himmelfarb Gertrude. The De-moralisation of Society: from Victorian Virtues to Modern Values. New York: Knopf, 1995, 166. 42. See the debate over the widows’ pension in New South Wales Parliamentary Debates, 1929–30, 2111; Royal Commission on Old-Age Pensions 1907–8.

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43. See Atherton, “Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales”; Atherton, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right”; Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm”; Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia.” 44. Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare, 11–14. 45. Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare, 20. 46. New South Wales Parliamentary Debates, 1905: 2887, 2889. 47. This is a form of State legislation and has been enacted under various names. 48. Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm”; Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia.” 49. See Lee Steere v. Lee Steere [1985] 10 FLR 431; Voyce, Malcolm. “The Farmer and His Wife: ‘Hey ho the dairy goes.’” Alternative Law Journal 18/3 (1993): 121–25. 50. While I utilize Foucault in this regard, others have made this point using Weber, Max. General Economic History. London: Allen & Unwin, 1927 and Weber, M. Economy and Society: An Outline of Interpretative Sociology. Berkeley: University of California, 1978. 51. Kalpagam, U. “Colonial Governmentality and the Economy.” Economy and Society 29/3 (2000): 419. 52. Anderson, Stuart. Lawyers and the Making of English Land Law, 1832–1940. Oxford: Clarendon Press, 1992; Macfarlane, Alan. The Origins of English Individualism: the Family, Property and Social Transitions. Oxford: Blackwell, 1978. 53. See Buck-Morss, Susan. “Envisioning Capital: Political Economy on Display.” Critical Inquiry 21 (1995): 434–67; Mitchell, Tim. “Fixing the Economy.” Cultural Studies 12/1 (1998): 82–101; Mitchell, Tim. Rule of experts: Egypt, techno-politics, modernity. Berkeley: University of California Press, 2002 in relation to how statistical thinking especially assisted the new discipline of political economy. 54. See Reilly, Alex. “Cartography and Native Title.” Journal of Australian Studies 79 (2003): 1–15; Jamieson, E., D. N. Jeans and J. Forster. “The Spatial Scale of European Colonization and Land Alienation in Northern New South Wales 1850–1910.” Australian Geographer 15 (1983): 322–25; Jeans, D. N. “The Spatial Analysis of Colonization: A Review.” Western Geographer 1 (1974): 77–94; Blomley, Nicholas. “Law, Property, and the Geography of Violence: The Frontier, the Survey and the Grid.” Annals of the Association of American Geographers 93/1 (2003): 121–41. 55. For an introduction to critical accounting in monograph form, see Hopwood and Miller, Accounting as a Social and Institutional Practice; Robson, “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting.” On the Foucauldian approach to critical accounting, see Armstrong, Peter. “The Influence of Michel Foucault on Accounting Research.” Critical Perspectives on Accounting 5 (1994): 25–55; MacLullich, Katarzyna. “The Emperor’s new clothes? New Audit Regimes: Insights from Foucault’s technologies of the self.” Critical Perspectives on Accounting 14 (2003): 791–811. For the spread of accounting as a disciplinary form in Australia see Chua and Poullaos, “The Dynamics of Closure Amidst the Construction of Market, Profession, Empire and Nationhood: An Historical Analysis of an Australian Accounting Association 1886–1903.” For the important connection between accounting, tax and governance in the Australian context, see Carnegie, Gary. Pastoral Accounting in Colonial Australia. New York: Garland, 1997. In other contexts, see Bush, Barbara and Josephine Maltby. “Taxation in West Africa: Transforming the Colonial Subject into the Governable Person.” Critical Perspectives on Accounting 15/1 (2004): 5–34; Walker, Stephen. “Agents of Dispossession and Acculturation. Edinburgh Accountants and the Highland Clearances.” Critical Perspectives on Accounting 14/8 (2002): 813–53. For an outstanding study of the role of accounting in the lives of indigenous

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people, see Neu, Dean and Richard Therrien. Accounting for Genocide: Canada’s Bureaucratic Assault on Aboriginal People. Halifax: Fernwood Publishing, 2003. 56. See Kalpagam, U. “Cartography in Colonial India.” Economic and Political Weekly (1995): 87–98. 57. See Harley, Brian. “Maps, Knowledge and Power.” In The Iconography of Landscape: Essays in Symbolic Representation, edited by Denis Cosgrove and Stephen Daniels, pages 277–312. Melbourne: Melbourne University Press, 1988; Ryan, Simon. The Cartographic Eye: How Explorers Saw Australia. Cambridge: Cambridge University Press, 1996; Deleuze, Gilles and Felix Guattari. A Thousand Plateaus: Capitalism and Schizophrenia. Minneapolis: University of Minnesota Press, 1987; Haynes, Rosylynn. Seeking the Centre: The Australian Desert in Literature and Art. Cambridge: Cambridge University Press, 1998; Withers, Charles. “Authorizing Landscape: ‘Authority,’ Naming and the Ordnance Survey’s Mapping of the Scottish Highlands in the Nineteenth Century.” Journal of Historical Geography 26/4 (2000): 532–54; Pottage, Alain. “The Cadastral Metaphor.” In Constitutions of Property, edited by Huri Islamoglu, pages 180–213. London: IB Tauris, 2003. 58. See Weber and his explanation as regards the emergence of territory and nation. Weber argues that this process was typical of the process of rationalization in which there was a movement from diverse, special laws based on group membership to compulsory membership of the state (Weber, Economy and Society: An Outline of Interpretative Sociology, 696). With the growth of nations, the concept of jurisdiction was developed, in the sense that law defended a spatial area subject to that law. Initially propounded as lex terrae, or the common law of the land, the declaration of a territorial homogenous jurisdiction was associated with liberal notions of individual equality as the individual came to be the bearer of rights associated with a person’s attachment to territory (Mohr, Richard. “Law and Identity in Spatial Contests.” National Identities 5/1 [2003]: 54). 59. See Mitchell, “Fixing the Economy”; Mitchell, Rule of experts: Egypt, techno-politics, modernity; Tomlins, Christopher. “The Legal Cartography of Colonization, the Legal Polyphony of Settlement: English Intrusions on the American Mainland in the Seventeenth Century.” Law and Social Inquiry 25 (2001): 315–72 (North America). 60. Tomlins, “The Legal Cartography of Colonization, the Legal Polyphony of Settlement: English Intrusions on the American Mainland in the Seventeenth Century,” 20. 61. For texts, which describe the development and importance of “surveying” in Australia, see the entry in the Oxford History of Australia; Ryan, The Cartographic Eye: How Explorers Saw Australia; and Reilly, “Cartography and Native Title.” 62. Mohr, “Law and Identity in Spatial Contests,” 61. 63. Demography only began to develop in the 1920s–1930s. Greenhalgh, Susan. “The Social Construction of Population Science: An Intellectual, Institutional, and Political History of Twentieth Century Demography.” Society for Comparative Study of Society and History 38/1 (1996): 26–66. 64. This transformation of the social sciences appears to reflect the delocalization of social statistics, the “representative method” and random sampling—all vital ingredients in the creation of the welfare state. See Desrosieres, Alain. The Politics of Large Numbers: A History of Statistical Reasoning. Cambridge: Harvard University Press, 1998: 221–22. See also Hacking Ian. The Taming of Chance. Cambridge: Cambridge University Press, 1990; Rose, Powers of Freedom: Reframing Political Thought, 197–230. 65. Kalpagam, “Colonial Governmentality and the Economy,” 419; See Mitchell, “Fixing the Economy”; Mitchell, Rule of experts: Egypt, techno-politics, modernity. 66. Higgens, “Governing the Boundaries of the Viability: Economic Expertise and the Production of Low-Income Farm Problem in Australia”; Murdoch, Jonathan and Nkil Ward. “Governmentality and Territoriality: The Statistical Manufacture of Britain’s ‘National Farm.’” Political Geography 16/4 (1997): 307–24. 67. A selection includes Fletcher, Brian. Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821. Sydney: Sydney University

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Press, 1976; Meinig, Donald. On the Margins of the Good Earth: The South Australian Wheat Frontier 1869–1884. London: Murray, 1962; Powell, Joseph. Mirrors of the New World: images and image-makers in the settlement process. Canberra: Australian National University Press, 1977; Roberts, Stephen. History of Australian Land Settlement, 1788–1920. South Melbourne: Macmillan, 1968; Denoon, Donald. Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere. Oxford: Clarendon Press, 1983. 68. See Edgeworth, Brendon. “Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Law Compared after MABO v Queensland.” Anglo-American Law Review 23/4 (1994): 397–435 on the maintenance of English law forms and Sugerman, David. “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition.” In Legal Theory and the Common Law, edited by William Twining, pages 26–62. Oxford: Blackwell, 1986 on the influence of legal education and classical English texts. 69. Duncan, James. “Embodying Colonialism? Domination and Resistance in 19th century Ceylonese Coffee Plantations.” Journal of Historical Geography 28/3 (2002): 317; Lefebvre, Henri. The Production of Space. Oxford: Blackwell, 1991. Duncan’s work, which I follow here, builds on Bruno Latour’s actor network theory: Latour, Science in Action: How to Follow Scientists and Engineers through Society; Latour, Bruno. We Have Never Been Modern. New York: Harvester Wheatsheaf, 1993. Other scholars such as Noe and Alroe have used this theory to explore the complexity of the farm enterprise, with its heterogeneous network of human and non-human actors, in light of different forms of knowledge and technology, including land, animals and plants (Noe, Egon and Hugo Alroe. “Combining Luhmann and Actor-Network Theory to see Farm Enterprises as Self-Organising Systems.” Last modified 12 Apr 2010. http://orgprints.org/ 00000325 70. Rubin and Sugerman, Law, Economy and Society 1750–1914: Essays in the History of English Law, 9–10. 71. Rubin and Sugerman, Law, Economy and Society 1750–1914, 9. 72. Chambliss, William and Robert Seidman. Law, Order and Power. Reading: Addison-Wesley Publications, 1982: 85–117; Symes, Pamela. “Property, Power and Dependence: Critical Family Law.” Journal of Law and Society 14/2 (1987): 199–216; Cotterrell, Roger. “The Law of Property and Legal Theory.” In Legal Theory and Common Law, edited by William Twining, 81–98. Oxford: Blackwell, 1986; Cotterrell, Roger. “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship.” In Critical Legal Studies, edited by Peter Fitzpatrick and Alan Hunt, 77–90. Oxford: Blackwell, 1987. 73. See Robert Hale in Hale, Robert L. “Bargaining Duress and Economic Liberty.” Columbia Law Review 43 (1943): 603–28 described in Duxbury, “Robert Hale and the Economy of Legal Force,” 434. 74. Cohen, Morris. “Property and Sovereignty.” Cornell Law Review 13 (1927): 8–30. 75. Pollock, Frederick. The Land Laws. London: Macmillan, 1896, 117. 76. In this context, I acknowledge the work of the legal realists and their claim that the State is involved in all purported private transactions (Cohen, “Property and Sovereignty,” 1935; Hale, “Bargaining Duress and Economic Liberty”). 77. See Latour, Bruno and Steve Woolgar. Laboratory life: The Social Construction of Scientific Fact. Beverly Hills: Sage Publications, 1979 on the questionable neutrality of science. See also the feminist critique of economics which addresses the social construction and economic subordination of women. This critique has now transcended the explicit feminist project by questioning the very nature of economic analysis: Benería, Lourdes. Gender, Development, and Globalization: Economics as if all People Mattered. New York: Routledge, 2003, 41–52. See also McCloskey, Donald. “The Rhetoric of Economics.” Journal of Economic Literature 21 (1983): 481–517; McCloskey, Donald. Knowledge and Persuasion in Economics. Cambridge: Cambridge University Press, 1994; Ferber, Mariana and Julie Nelson. Beyond Economic Man: Feminist Theory and Economics. Chicago: University of Chicago Press, 1993.

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78. On the notion of productivity and its counterpart, the “discourse of poverty,” see Dean, The Constitution of Poverty: Toward a Genealogy of Liberal Governance and Dean, “A Genealogy of the Government of Poverty.” 79. Hirschman, Albert. The Passions and the Interests: Political Arguments for Capitalism before its Triumph. New Jersey: Princeton University Press, 1977, 31 (his emphasis); Burchell, Graham. “Peculiar Interests: Civil Society and the ‘System of Natural Liberty.’” In The Foucault Effect: Studies in Governmentality, edited by G. Burchell, C. Gordon and P. Miller, pages 119–50. London: Harvester Wheatsheaf, 1991, 130. These notions reflected some of the Victorian economists who believed in the ideals of Malthus and the distinction between the deserving and the undeserving poor (Malthus, Thomas. An Essay on the Principle of Population as it Affects the Future Improvement of Society. London: Johnson 1798). Malthus simultaneously endorsed works by Quesnay and others which held that progress requires that the state introduce taxation on land, rather than produce, as it was argued that taxation promotes agricultural investments (Weaver, John. The Great Land Rush and the Making of the Modern World, 1650–1900. Montreal: McGill, 2003, 25). 80. Goodwin, Craufurd D. W. Economic Enquiry in Australia. Durham: Duke University Press, 1966, 606–11; Chua and Poullaos, “The Dynamics of Closure Amidst the Construction of Market, Profession, Empire and Nationhood: An Historical Analysis of an Australian Accounting Association 1886–1903.” 81. Pujol, M. “Into the Margin!” In Out of the Margin: Feminist Perspectives on Economics, edited by E. Kuiper and J. Sap with E. Feiner, N. Ott and Z. Tzannatos, pages 17–34. London: Routledge, 1995. 82. Hacking, Ian. “How Should We Do The History of Statistics?” Ideology and Consciousness 8 (1981): 15–26. 83. Ex parte H V Mckay (1907) 2CAR 1 (the “Harvester” case). See also Rural Workers Union v. Mildura Branch of the Australian Dried Fruits Association (1912) 76 CAR 62 (the “Fruitpickers” case). 84. Bennett, Laura. “Legal Intervention and the Female Workforce: The Australian Conciliation and Arbitration Court 1907–1921.” International Journal of Sociology of Law 12/23 (1984): 34. 85. Lake, Marilyn. “Help Mate, Slave, Housewife: Women in Rural Families 1870–1930.” In Families in Colonial Australia, edited by Patricia Grimshaw, Chris McConville and Ellen McEwen, pages 173–85. Sydney: Allen & Unwin, 1985, 179; Deacon, Desley. “Political Arithmetic: The Nineteenth Century Australia Census and the Construction of the Dependent Woman,” 29. 86. Gooday, J. “Women on Farms.” Australian Bureau of Agricultural Economics, Research Report 95, 1995. 87. Alston, Margaret. “Farm Women and Their Work: Why is it not Recognised?” Journal of Sociology 34/1 (1998): 32. 88. Bordow, Sophy and Margaret Harrison. “Outcomes of Matrimonial Property Litigation: An Analysis of Family Law Cases.” Australian Journal of Family Law 8/3 (1985): 73–100; Voyce, “The Farmer and His Wife: ‘Hey ho the dairy goes.’” 89. There are a growing number of critiques by feminist economists regarding the notion of free rational prudent persons. On the idea of pareto efficiency and other calculations in conventional microeconomic theory, see Davies, Margaret. Asking the Law Question: The Dissolution of Legal Theory. Sydney: Lawbook, 2002, 154–60; Weigers, Wanda. “Economic Analysis of Law and Private Ordering: A Feminist Critique.” University of Toronto Law Journal 42 (1992): 170–206; Sen, Amartya. Rational Fools: A Critique of the Behavioral Foundations of Economic Theory. Vermont: Elgar Reference Collection, 1997; Keene, Steven. Debunking Economics. London: Zed Books, 2011. 90. Gibson-Graham, Katherine. The End of Capitalism (As We Knew It): a Feminist Critique of Political Economy. Oxford: Blackwell, 1996, 261; Snooks, Graeme D. Portrait of the family: within the total economy: a study in longrun dynamics, Australia 1788–1990. Melbourne: Cambridge University Press, 1994; Chiappori, Pierre A. “Collective Labour Supply and Welfare.” Journal of Political Economy 100 (1992): 437–67; Folbre, Nan-

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cy. “The Unproductive Housewife: Her Evolution in the Nineteenth Century Economic Thought.” Signs 16/3 (1991): 463–84. 91. Graycar, Reg and Jenny Morgan. The Hidden Gender of Law. Sydney: Federation Press, 1990. 92. Reiger, Kerreen M. The Disenchantment of the Home: Modernizing the Australian Family 1880–1941. Melbourne: Oxford University Press, 1985, 55. 93. Lewis, Jack. “Is the Concept of the Home Maintenance Area Outmoded?” Australian Journal of Agricultural Economics 7 (1963): 97–106. 94. Blomley, Nicholas and Jeff Sommers. “Mapping Urban Space: Cartographic Struggles in Inner Vancouver.” In Governable Places: Readings on Governmentability and Crime Control, edited by R. Samandych, pages 121–41. Aldershot: Ashgate, 1999: 266. Foucault noted the connection between spatial concepts and the microphysics of power and concluded that all territorial concepts imply the exercise of power. Hannah, Matthew. “Foucault and Theorizing.” Environment and Planning D: Society and Space 11/3 (1993): 349–63; Driver, Felix. “Power, Space and the Body: A Critical Assessment of Foucault’s Discipline and Punish.” Society and Space 3 (1985): 425–46. Foucault recognized that power was both centralized and diffuse and that it was manifest in space. Foucault’s substantive historical inquiries show clearly how the distribution and arrangement of people’s activities and buildings are always deeply implicated with spatial relations (Philo, Chris. “Foucault’s Geography.” Environment and Planning: Society and Space 10 [1992]: 151). Foucault was not the first to develop these ideas, but he certainly gave them currency. 95. Fletcher, Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821, 14. 96. See Lake, “Help Mate, Slave, Housewife: Women in Rural Families 1870–1930” and the discussion in Share, Perry B. “Tickle it with a hoe and it will laugh with a harvest! Discourses of Closer Settlement in Australia 1898–1988.” Unpublished Doctorate, School of Sociology and Anthropology, LaTrobe University, 1994, 3. 97. Powell, Joseph M. A Historical Geography of Australia. Cambridge: Cambridge University Press, 1988, 25–28. 98. Gollan, Robin. “American Populism and Australian Utopianism.” Labour History 9 (1965): 38. 99. Agrarianism is a belief that farming is an ennobling vocation which commands respect, because it provides the necessities of life and it involves hard work, perseverance and the fostering of family life (Gray, Ian and Geoffrey Lawrence. A Future for Regional Australia: Escaping Global Misfortune. Cambridge: Cambridge University Press, 2001, 73). Ideas of agrarianism are a product of history rather than a result of environmental factors. It reemerges in a variety of historical and geographical contexts in different forms (Share, “Tickle it with a hoe and it will laugh with a harvest! Discourses of Closer Settlement in Australia 1898–1988,” 82). I expand on agrarianism later. 100. These developments occurred in line with the development of neoliberalism and changes in the economy in the 1980s. However, there were earlier indications of this tendency. 101. Lines, William J. Taming the Great South Land: A History of the Conquest of Nature in Australia. Sydney: Allen & Unwin, 1992, 61. 102. Connell, Robert and Terrance Irving. Class Structure in Australian History. Sydney: Longman, 1992, 45. 103. On the development of landed property as security for mortgagee finance see Whalen, Douglas. The Torrens System in Australia. Sydney: Law Book Company, 1982, 3–11 and Wells, Andrew. Constructing Capitalism: An Economic History of Eastern Australia 1788–1901. Sydney: Allen & Unwin, 1989, 87. 104. Kendall, Gavin. “Governing at a Distance: Anglo-Australian Relations 1840–70.” Australian Journal of Political Science 32 (1997): 223–35. 105. Voyce, Malcolm. “Governing from a Distance: The Significance of the Capital Income Distinction in Trusts.”

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106. Tenants of land could not “commit waste.” This meant that tenants could not allow the land to decline in value (Bonyhady, Tim. The Colonial Earth. Melbourne: Melbourne University Press, 2000, 161–63; Bessant, Chris. “From Forest to Field: A Brief History of Environmental Law.” Legal Service Bulletin 16/4 [1991]: 160–64). 107. Robson, “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting,” 697. For the impact of accounting for the administration of indigenous people see Neu, Dean “Accounting and Accountability Relations: Colonization, Genocide and Canada’s First Nations,” Accounting, Auditing and Accountability 13, 3 (2000): 268–88. 108. In divorce cases contributions are evaluated using scientific forms of evaluation and by assessing the relativity of the contributions. The former are subjected to poststructural forms of critique because they are a product of economic formulations, which are based on the rational man and ideas such as the pareto optimality theory. 109. As regards Testators’ Family Maintenance cases see Voyce, “The Impact of Testators’ Family Maintenance Legislation as Law and Ideology on the Family Farm” and Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia.” For divorce settlement cases which reward “pioneering” and “hardworking farmers” see Parker Appeal 59 of 1990 Suit No TV 2478 of 1989, Messina Appeal 132 of 1998, Guthrie (1995) FLC 92–647. See discussion in chapter 4. 110. See my discussion of the importance of the Harvester case above. 111. Teather, Elizabeth. “Remote Rural Women’s Ideologies, Spaces and Networks: Country Women’s Association of New South Wales 1922–1992.” Australian and New Zealand Journal of Sociology 28/3 (1992): 369–90; Teather, Elizabeth. “Tailoring Rural Women in Australia, Canada and New Zealand: A Touch of Silk.” Journal of Australian Studies 52 (1997): 102–12. 112. But see Hogg, Russell and Kerry Carrington. “Governing Rural Australia: Land, Space and Race.” In Rethinking Law, Society and Governance: Foucault’s Bequest, edited by Gary Wickham and George Pavlich, pages 43–60. Oxford: Hart Publishing, 2001. 113. Gammage notes in his review that in general eighteenth-century historians are of this opinion. See Gammage, Bill. “Who Gained, and Who Was Meant to Gain, from Land Selection in New South Wales.” Australian Historical Studies 24 (1990): 111. 114. Gammage, Bill. “Who Gained, and Who Was Meant to Gain, from Land Selection in New South Wales.” Australian Historical Studies 24 (1990): 115.

FOUR Divorce Judgments and “Spatiality” and “Sexuality”

Academic research about family farms has been undertaken in a variety of disciplines, such as rural sociology, anthropology and geography. Some of this scholarship has considered legal decisions that affect farmers as regards divorce, inheritance and economic restructuring. 1 Recently scholars have also considered issues of sexuality and space. 2 However, such studies have not deployed judgments in law as an ethnographical form of evidence. A position, adopted here, is that ordinary “black letter” judgments may be used as a field site or as a place to conduct a type of ethnography. 3 This chapter, firstly, makes a spatial analysis of the way family farmers arrange social and physical spaces on the farm. To this end, the chapter utilizes Foucault’s ideas on the governance of the family, spatiality and economics. Secondly, the chapter deploys legal judgments to show the discursive construction of different social and economic factors that underlie the reasoning that judges provided. Here I argue that ideas of sexuality and economics are embedded in such judgments, an argument that links in general with other chapters. FOUCAULT’S APPROACH TO THE FAMILY Foucault’s contribution to the theory of family appears at first sight to offer no in-depth analysis of that particular social unit. However, as I have indicated, his treatment of the family is actually a crucial theme in his lectures. 4 In these lectures, Foucault explores the relationships between kinship, sexuality and the state. 5 He is therefore able to show how

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the family exercised a degree of sovereignty over its own affairs, whilst at the same time being subject to various forms of state intervention. Interwoven with these ideas of the family and forms of kinship was the role of sexuality, a core element of family that had to be managed through calibrations based on the performance of the body. The word “kinship” is important here as this notion alludes to general ideas concerning “blood” descent and the role of family members. The word kinship also incorporates ideas about equality, authority and solidarity. 6 In writing about the connection between sexuality and inheritance—what Foucault called the “deployment of the alliance” 7—we may see that courts, in some cases, support the continuation of the family patrimony by making awards that will not take the farm out of the family line and lead to the farm being sold. Family law created the appropriate vehicle for this social intervention: under the Family Law Act 1975 (Cth), the nuclear family was seen as “natural” and “fundamental” to society. As Stewart writes, this “truth” about the family is that it functions as “an ideology, produced and sustained in this instance through legal discourse.” The same “truth,” she adds, is also produced through discourses such as biology, religion, anthropology and economics. 8 THE LEGAL GOVERNANCE OF FAMILY RELATIONSHIPS Alexander has argued that the approach the courts take as regards property relationship within families is to govern the internal relationship between the parties. 9 Such governance is directed to restrict or judge those who showed a lack of capacity to work, were intemperate or who did not properly care for each other. While Alexander’s argument is instructive, the approach this work takes is to explain how the courts govern the family through the focal point of sexualized economics. I argue that both Foucault’s views on the importance of the family and his genealogical method suggests an inquiry is necessary into which elements of family life the law sought to govern. 10 In family life the exact point of governance might be seen as the “ethical substance” within the family relationship. That ethical substance is the aspect of self that is morally problematic and may be regarded as the object of one’s ethical reflection, transformed in one’s ethical work. 11 It is suggested this substance is mediated through ideas pertaining to the notion of sexuality, such ideas reflecting a concern for the behavior of the individual collectively, and this was effected through what Foucault called the “homeostasis of the social body.” 12 In the context of the Family Law Act, it is argued that the notion of sexualized economics is underpinned by the binary notions fault or nonfault. This contention needs some explanation. Fault is not supposed to be

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an issue under the Family Law Act. 13 Under the Family Law Act 1975 “fault” as a grounds for divorce, and therefore as a basis of property division, has been abolished. 14 However, while fault as grounds for the assessment of property settlements has metaphorically been legislated out the front door, it lurks in the shadows, in the sense that there are still financial consequences for marital misbehavior. 15 Adopting a wider register for the meaning of the word fault, we may see that “fault” has the quality of an “offence” or “deficiency” hindering economic productivity and the accumulation of property. 16 Fault, understood in this way, is quantifiable through economic calibrations incorporated in the dividing practices in the texts. Foucault has outlined how “dividing practices” separate the good from the bad, the sick from the insane. 17 In terms of family law texts, these dividing practices separate the appraisal of productive work from nonproductive work. These oppositions created a division between the productive and those who were deemed blameworthy, morally deficient or involved in “non-economic” behavior (such as child-care, housework or working on the farm). The cases discussed show us classic instances of men being in charge of farm operations, with women “helping out.” It is commonly remarked that male farmers embody masculine traits, while women are constructed as helpers who support their husbands by taking care of the household and family. At the same time, the male working body and its associated masculine qualities also have symbolical values: the way it looks and performs delivers messages about a person’s importance and status. 18 In this worldview, women are seen as unproductive, defined instead by their passive or invisible presence in rural space. ASPECTS OF FAMILY LAW AS REGARDS SEPARATION OF MATRIMONIAL PROPERTY Jurisprudence as regards family law in Australia, following the passage of the Family Law Act 1975 (Cth), is now well known. I outline some of the central ideas in this legislation, which provides a lens through which judges see rural society and make judgments about social arrangements on farms. 19 Firstly, under the “contributions approach” to family law, judges working under the legislation should take account of seven factors before making a property order, the most important being the perceived contribution of each partner to the wealth and welfare of the family. Both financial and non-financial contributions are included. The Family Law Act also makes clear that the homemaker’s contribution is to be taken into account. The approach of assessing property on the basis of respective

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contributions of the parties now sits alongside another discourse—that of recognizing parties’ perceived need of compensation in “a just and equitable way.” 20 Secondly, the section of the Family Law Act dealing with the alteration of property interests regards such alterations as discretionary acts and makes explicit a number of factors to be taken into account. The statute is silent on a number of issues, including the relative importance of each factor, which factors should be given higher priority and how to resolve any conflict between factors. 21 Some uncertainty may arise out of this broad discretion, but the existence of discretion can be justified on the basis that it gives a judge the opportunity to respond to the full range of circumstances that a case presents, thereby allowing justice to prevail in each case. 22 The court cannot use its discretion to make unjustified or arbitrary decisions, as it is required to give reasons for its determination. Despite the broad nature of the discretion, it has been possible to discern, from decisions in different periods, a “going rate” in relation to similar cases. 23 In a similar way, Bordow and Harrison, writing in 1985, concluded that there is consistency in the decision-making process. 24 Thirdly, decisions from 1977 to 1985 held that land used for farming purposes essential to the production of an income was in a different category from land that simply provided a place for the family home. 25 In these cases, judges took special note of section 79(4)(d) of the Act, which required the court to take account of the earning capacity of either party. This is often referred to as the presumption or preference against a “crippling order.” However, in 1985, in the case of Lee Steere v Lee Steere, 26 the Full Court indicated an important new direction when it clarified that there is no “farming case” exceptional to the ordinary principles applicable under section 79 of the Act. Their Honours said: The fact that the subject of property proceedings under s 79 is a farm may give rise to considerations as to the way and means by which a property division should be effected. . . . But there is no farming case exception to the ordinary principles applicable under s 79 of the Act. . . . By the same token it is wrong to approach a farm case on the basis that the wife should only receive an amount which adequately meets her needs without considering first her entitlement by way of contribution. . . . We must therefore reiterate that in relation to farming properties, as in relation to all other assets, be they business assets or suburban land, the ordinary principles of s 79 of the Act apply. 27

It is now clear that farms do not have any special status in property proceedings. The same principles of s 79 apply, whether, as in the case of Lee Steere, the husband inherited the farm, or whether it was acquired by one of the parties prior to the marriage.

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SAMPLE CASES OF THE LEGAL DIVISION OF PROPERTY Farm cases indicate courts consider a range of factors, including the husband’s contribution in bringing the farm into the marriage (the “initial contribution”), the future earning capacity of the wife after separation, and the earning capacity of the husband, particularly his vocational need to retain the farm. At the same time, courts may consider the degree to which the farm has been built up by the parties during the marriage through their respective contributions. Finally, the court may consider an overall need to ensure a “just and equitable” result. 28 I now outline some specific cases that discuss the division of rural property after divorce. It is not intended to present an exhaustive legal analysis, but in line with my particular ethnographical approach, to show how judges have construed the social and spatial factors in these cases. 29 This form of analysis is useful as it reveals who does what on farms. I also note in the following analysis how the assets were divided. In Parker’s case, 30 the husband was from a third-generation farming family in northern Queensland. In 1971, he commenced farming with his father on a property that had been acquired by his grandfather in 1896, and which was currently owned by his father. On this property, he built the “family home” before he married, with the help of his parents and some borrowed money. In 1970, he married his wife, who left her clerical job one month prior to the birth of their first child; by the time of the hearing that child was eighteen years old. In late 1972, she returned to work part-time and continued until 1977. During that time, their second son was born (in 1975); he was fifteen years old by the time of the hearing. In 1977, the husband, with his father, transferred all the plant machinery and growing sugar to a family trust. The trust also took a lease on the farm from the father. During this period of the late 1970s, the wife did the farm bookwork, and in 1978 she had their third son. In 1981, the husband invented a packaging machine, and the wife assisted in the clerical work for that operation. In 1984, she took outside work for three years. In 1985, the husband’s father died and the husband received part of the father’s wealth, including part interest in another farm, which he subsequently operated. The wife also kept the books for the other farm property. The partners were found to have separated in 1989. The judge assessed the total value of the assets as being $2,011,655. As regards the wife’s contribution, it was accepted that she had worked as a homemaker and parent; in addition, on the farm and in the packing shed had worked to her full capacity. The trial court judge accepted that the mother/wife had far heavier duties than might normally be the case. It appears that there was some hesitation in accepting this evidence, and the trial court judge was reluctant to consider a maintenance element for the wife as she would receive a large award and was capable of work. The wife also held primary responsibility for the three children, who at

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the time were between twelve and eighteen years of age, although the conflict this activity generated with work was not thought to be noteworthy. The judge accepted that the husband was a “highly driven, highly motivated man who had been industrious throughout the 20 years of marriage.” The crucial factors in the husband’s favor were the assets he had brought into the marriage and the work he had done on the farm after the separation of the parties (an eight-month period). The judge awarded the wife 30 percent of the assets, amounting to $507,639, and payable within ninety days as settlement of property claims, and further ordered $100 a week for the three children. On appeal, the Full Family Court only awarded a slight increase of $30,000, based on a mistaken assessment by the lower court judge. Pike and Pike 31 dealt with a couple aged in their fifties, who had been together for twenty-two years. The husband had brought the farm property into the marriage and the wife had brought some assets worth $25,000. The wife worked with her husband on the farm, doing work such as “picking rocks and stumps,” which involved working for about five to seven days a year. Other than this, she also worked with her husband at harvest time and when generally necessary. The wife carried out nearly all of the homemaking work, although the husband helped from time to time, and she was also employed as a nurse, earning about $80,000 a year. The judge decided that the husband was entitled to 60 percent of the assets, amounting to $4,262,281, while the wife received $1,508,187. In Casper v Casper, decided in 2009, 32 the farming property was worth $12,100,000. The couple had been married for sixteen years, with the wife bringing into the marriage assets worth $5,000. A few years into the marriage, the husband was gifted with his parents’ land, by which time it was worth $9,700,000. During the marriage, the parties had different roles, with the wife functioning as the primary carer of the children. She had therefore assumed a supportive role as regards the operation of the farm. At the time of the hearing, her salary was between $50,000 and $70,000 per annum. The husband argued that although he could find offfarm work in the event of losing the farm, it would not be the same as working on the land. The judge made an order enabling the husband to retain the farm, dividing the assets by giving 70 percent to the husband and 30 percent to the wife. The judge said it was commonly held that the husband had significantly increased the value of the farm. No comments were made concerning the evaluation of either the husband’s or the wife’s contribution. This case involved a large asset base; the wife received a reasonable payout ($1,610,000) and was in receipt of a reasonable income. In Cumpton v Cumpton, 33 the husband and the wife had been together for eighteen years. Both parties had brought assets of various kinds into

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the marriage and, otherwise, both had contributed in their respective spheres (work on farm vs homemaking vs childcare). Apart from running the farm, the husband had developed a sustainable agricultural project, based on the invention of a particular technology. He then sold it for $5,000,000, for which he received $3,600,000 after tax. The husband claimed that his special contribution to the financial relationship was the introduction, refinement and marketing of this technology. The judge recognized there could be no question that it was his “skill and acumen, innate and special to him, that produced the product and that is deserving of recognition and substantial weighting in his favor.” 34 The judge commented: On the facts of this case there could be no question that the arrival of over $3.584 million net . . . was overwhelmingly referable to the husband’s introduction to the marriage of the fundamental framework of the intellectual property sold, to his refinement of it and to his efforts to market and sell it, all of which in turn is referable to his innate and special skills in inventing it. His contributions must be weighted accordingly in recognition of his special skills and his special contribution. Of course, that weight must take into account the indirect contribution by the wife in her support, but as the time spent on bringing it to the point of sale was not significant in the scheme of things, that brings about a relatively minor counterbalance. 35

The judge decided that the husband should receive 87.5 percent of the total assets and that the wife should receive 12.5 percent. The judge also concluded that “it is recognized this is a large disparity, with the husband’s entitlement being seven times that of the wife’s, but it is one I regard as warranted on the facts of this particular case.” 36 SOME OBSERVATIONS ON THESE SAMPLE CASES I now make some observations about how judges assess the social facts of these cases as regards the lives of the parties involved in such disputes. I also refer to a few more cases, which show spatial sexuality to illustrate how the gendered division of labor has spatial implications. What is most noticeable in reading farm divorce cases is how carefully judges record the history of the farm operation and outline the respective work done by the husband and wife. Several aspects of these descriptions are striking. I describe aspects of cases in different ways. Firstly, the corporeal nature of these activities are calibrated and assessed. For instance, in Parker’s case the husband was praised for being a highly motivated man who had been industrious throughout the twentyyear marriage. The wife had worked on the farm, including the packing shed, done the “books” and looked after the children. In Pike’s case the wife had “picked rocks and stumps” on the farm, worked elsewhere as a

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nurse and looked after the children. In Casper’s case, the details are given of how the wife looked after the three children, worked as a teacher and played an active role in management of the farm. In a typical dispute over a dairy farm, the judge noted how the wife “weighed in wherever help was needed,” 37 whether it be in the milking shed or helping with harvesting. Her daily routine was as follows: Up at 6.30 feeding the babies, while the husband got in the cows, she would prepare to have a drink to have in the dairy at 7 to 7.30, separate, feed the calves, pigs, clean up and the husband would put away and feed out the cows, then breakfast, feed the babies, pull turnips, wash, get the midday meal. In the afternoon it would be the same type of routine but perhaps more gardening more than housework, then milk at 4.30 again, separate, prepare the meal, the babies, bed at 10.30 to 11 o’clock. That was the repetitive programme seven days a week every day of the year.

As regards the husband, the judge said that he . . . made the greatest contribution to the increase in the value of the property. His acumen, foresight and appetite for long, hard physical work has made these allotments into a farming property of real and substantial worth and significance. His work to develop the land and his seizure of opportunities to buy additional lands by evaluating their potential, were not work or decisions shared by his wife. 38

On this basis the wife received 38 percent of the assets. While physical work on the farm is fully described and therefore valued, what is striking in these cases is that the work of the wife as regards the home and her domestic contribution is glossed over, being mentioned in only a cursory way. For instance, in the dairy farm case cited above, all we are told about the wife’s contribution is that she looked after her daughters, as regards their clothing and education, a role she was well suited for as she had been a mothercraft nurse. Secondly, while there is variation in the way couples make decisions on farms, 39 the judgments examined indicate that husbands normally decided what activities were important versus what was marginal that the wife “would work around him for his assistance.” 40 One farmer, who bred stud cattle, gave an implicit assessment of his family values in saying that he “put cows before most people and that was his attitude he had all his life.” 41 These comments in these judgments clearly illustrate that men dictated spatial zones for each gender and in some cases allowed their wives some freedom in the public realm.

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THE SPATIAL CONSTRUCTION OF THE FARM All these judgments give an indication of the way farms are “spatially constructed.” “Space” does not just record gender-based assumptions, but also reinforces them because certain spaces result in certain behaviors. Space then marks those who are “in place” versus those who are “out of place,” and indicates how individuals see themselves in different subject positions. 42 Applying a “spatial analysis” to the judgments, it is instructive how judges narrate the story of the settlement of the farm, 43 and how the partners have reached their present financial position. These accounts ground the respective partners in specific spatial areas and therefore locate their respective status on the farm. The implicit value behind such accounts is the presupposition that the women’s space is the domestic realm. While the home is widely seen in liberal ideology as a haven from the world, there is little evidence in reported judgments that “acknowledges the affective dimensions of homemaking.” 44 Given the importance of the home as a place of shelter, comfort and privacy, this is perhaps initially surprising, but accountable when we see the great emphasis that legal judgments place on economic evaluations as against contributions that are regarded as altruistic. It is clear most wives worked in a helping capacity on the farm property, while husbands generally did not reciprocate in the home. Husbands seemed to occupy the home in a fleeting manner and, when they contributed, did so grudgingly. 45 As regards looking after children, one husband felt uneasy with the younger children, so he left this responsibility to the wife, who was more comfortable in such a role. 46 The judgments also show that the division between farm labor and housework as regards the notion of domestic place is not static. Readers of rural sociology familiar with the work of Pini will recall the account of the wife driving a tractor around the back of the farm, 47 and the resultant obvious tension in the kitchen over whose duty it is to provide breakfast. 48 There are indications in these cases that some wives see themselves differently in different spaces. The irony of domestic space is that it provides a vehicle for self-validation, which represents the core rather than the periphery of social values. 49 However, wives in the cases examined are often portrayed as having diverse views towards their spaces. For instance, the wife in Kaine’s case seemed to have no room for self-expression in the home, which was untidy, nor in public life outside the home. However, the wife of a wealthier grazing family in the Macphillamy case 50 contributed significantly to the domestic sphere and took time and pride in making it attractive. By contrast, the wife in Galway 51 was born into a prosperous family, whom the judges deemed to be “graziers of substance.” In this case, the wife forged her own identity outside the farm. At the same time, she

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contributed significantly to her duties in the house by looking after the children and completing domestic work. Finally, we also get indications of how wives related to the land outside the house gate. In most cases it was clear that women eagerly participated in farm work; one women said she held along with her husband “a deep and abiding interest in the land.” 52 Several wives in these cases lived rural life to the full, having been brought up on a farm and continuing to be involved throughout adulthood in farm work and local social activities. 53 It these cases, the women’s identity seemed to merge with the land. CONCLUSION The judgments considered in this chapter indicate how the work of rural families was appraised through merging economic evaluations with considerations about socially appropriate behavior. Domestic labor contributed by women was seen as secondary because it fell outside the requisite transactional framework of the economic world. Therefore, such contributions, important though they may have been, were deemed not sufficiently calculable and specific. 54 In this context, domestic labor was seen as a form of altruism that lay beyond the law. 55 Expressed in a different form, we may say that women’s contributions on farms were inherently “sexualized” in the sense that women’s labor was incorporated into preconceived notions of productivity or non-productivity. The basis of this devaluation may be accounted for in several ways. Firstly, the calibrations concerning contributions made by judges represent a form of technology in terms of Foucault’s approach to “the economy.” Here I refer to the way Foucault saw the economy as a technology for eliciting certain types of practices for those who could not govern themselves. 56 Secondly, we should note that, historically, the value of women’s labor was discounted through accounting and industrial awards, which supported the idea that the man was the breadwinner and the women a dependent. 57 Thirdly, property evaluations implicit in these judgments were also imbricated with notions that the household unit functioned as a form of a household economy, with the man going out to work to support the wife. 58 These notions combined to endorse the rural sentiment that women’s sexuality was dangerous, in that her labor, wrongly evaluated, could take the property out of the family. Overall, these conclusions reflect the contention that family law embodied a form of liberal ideology and that the public/private dichotomy arguably still lives on in the Family Law Act. This comment must be qualified by the recognition that domestic contributions are taken into account, 59 but the split of the proceeds of rural property, in favor of the

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male, indicates that domestic contributions are still generally undervalued. It has been shown, in the cases analyzed, that conferrals of work from the female partner to the male were regarded as grants from the economy of love, and that such transactions were based on emotional rather than economic value. 60 As Thompson explains, such transactions constituted Oikos, the sphere of devalued everyday necessity, whilst Polis, the public domain, had a visible and negotiable economic value. 61 NOTES 1. See Tom Bramble, “Australian Capitalism in the Neoliberal Age,” Marxist Left Review 1, no. 7 (2014): 55–95; Vaughan Higgens, “Governing the Boundaries of the Viability: Economic Expertise and the Production of Low-Income Farm Problem in Australia,” Sociologia Ruralis 41 (2001): 358–75; Ian Gray and Geoffrey Lawrence, A Future for Regional Australia: Escaping Global Misfortune (Cambridge: Cambridge University Press, 2001); Malcolm Voyce, “The Impact of Testators’ Family Maintenance Legislation as Law and Ideology on the Family Farm,” Australian Journal of Family Law 7 (1993): 191–224; Malcolm Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia,” Sociologia Ruralis 34, no. 1 (1994): 71–83. 2. See a review of this emerging area by John Scott, Anthony Lyons and Catherine McPhail, “Desire, Belonging and Absence in Rural Places,” Rural Society 24, no. 3 (2015): 219 –26. 3. Rebecca French, “Ethnography in Ordinary Case Law,” in Anthropology of Law, ed. Michael Freeman and David Napier (Oxford: Oxford University Press, 2009). 4. See Michel Foucault, The History of Sexuality (London: Penguin, 1978) and Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78 (New York: Picador, 2007), 78. For a fuller discussion, see Chloe Taylor, “Foucault and Familial Power,” Hypatia 27, no. 1 (2012): 201–18. 5. Robbie Duschinsky and Leon Rocha, Foucault, the Family and Politics (London: Palgrave Macmillan, 2012), 1. 6. Hank de Haan, In the Shadow of the Tree: Kinship Property and Inheritance Among Farm Families (Amsterdam: Het Spinhuis, 1994), 33. 7. In Foucault, The History of Sexuality, 147, Foucault describes the period of time when families were dynastic in the sense that marriage arrangements kept the property in the family. In this period, sexuality was linked to blood as family solidarity depended on properties being handed down without division to enable the family line being kept intact. 8. Miranda Stewart, “Domesticating Tax Reform: The Family in Australian Tax and Transfer Law,” Sydney Law Review 18 (1999): 457. 9. Gregory Alexander, “The Social-Obligation Norm in American Property Law,” Cornell Law Review 94 (2009): 2012. 10. See as examples of this approach Mitchell Dean, “Governing the Unemployed Self in an Active Society,” Economy and Society 24 (1995): 559–83; Mitchell Dean, “Administering Asceticism: Re-working the Ethical Life of the Unemployed Citizen,” in Governing Australia: Studies in Contemporary Rationalities of Government, ed. Mitchell Dean and Barry Hindess (Melbourne: Cambridge University Press, 1998), 87–107: Malcolm Voyce, “Property, The Governmentalisation of the State and the Working of Power in Rural Australia,” Journal of Historical Sociology, Issues and Agendas 21, 2/3 (2008): 331–54. 11. Bob Robinson, “Michel Foucault: Ethics,” Internet Encyclopedia of Philosophy, https://michel-foucault.com/2011/10/10/michel-foucault-ethics-internet-encyclopediaof-philosophy-2011/ (accessed 18 June 2018), 2.

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12. Michel Foucault, The History of Sexuality, 107. 13. Peter Nygh, “The Home Maker Contribution,” in College of Law Seminar Notes (St Leonards: College of Law, 1994). 14. H. A. Finlay, “The Grounds for Divorce: The Australian Experience,” Oxford Journal of Legal Studies 6 (1986): 368–91; Richard Ingleby, “Matrimonial Breakdown and the Legal Process: The Limitations of No-Fault Divorce,” Law & Policy 11, no. 1 (1989): 1–16. 15. While it has not been suggested by commentators that there should be a return to fault divorce, it has been suggested that marital misbehavior should have financial consequences. See Nell Alves-Perini, Margaret Harrison, Helen Rhoades and Shurlee Swain, “Finding Fault in Marital Property Law: A Little Bit of History Repeating?” Federal Law Review 34, no. 3 (2006): 377–398; Eithne Mills and Mirko Bagaric, “Disloyality and Divorce: Why (and When) the Traitor Should Pay,” Australian Journal of Family Law 18, no. 1 (2004): 63–85; Patrick Parkinson, “Quantifying the Homemaker Contribution in Family Property Law,” Federal Law Review 31 (2003): 1–55. 16. It is accepted that differential evaluations of property are made on the basis of inheritances and property which are brought into the marriage. I also mention the assessment of violence. However, differences in awards are made on the basis of economic conduct against the party deemed to be deficient or what must be called fault. For support for my approach, see Judith Behrens, “Domestic Violence and Property Adjustment: A Critique of ‘No-Fault’ Divorce,” Australian Journal of Family Law 7 (1993): 9–28; Jocelynn Scutt, “Principle v. Practice: Defining ‘Equality’ in Family Property Division on Divorce,” Australian Law Journal 57 (1983): 152, 155. For a dated but valuable discussion of negative contributions, see Joan Alford, “Financial Misconduct: The Capacity of Matrimonial Property Law to Provide a Remedy,” Unpublished Doctorate (University of Tasmania, 1986), and more recently, Anthony Dickey, Family Law (Sydney: Law Book Company, 2014), 610. 17. Michel Foucault, “Afterword: The Subject and Power,” in Michel Foucault: Beyond Structuralism and Hermeneutics, ed. Hubert Dreyfus and Paul Rabinow (Brighton: Harvester, 1982), 208. 18. Berit Brandth and Marit Haugen, “Embodying the Rural Idyll in Farm Tourist Hosting,” Scandinavian Journal of Hospitality and Tourism 9 (2014): 4. 19. See s 79 Family Law Act 1975 (Cth); Dickey, Family Law, 613. See also the provisions for spousal maintenance in s 75(2) of the Family Law Act 1975 (Cth). See generally Archana Parashar and Francesca Domiello, The Family in Law (Cambridge: Cambridge University Press, 2017). 20. Stanford & Stanford (2012) FLC 93-518. 21. Patrick Parkinson, Australian Family Law in Context: Commentary and Materials (Sydney: Law Book, 2012), 564. 22. Carl Schneider, “The Tension Between Rules and Discretion in Family Law,” Family Law Quarterly 27, no. 2 (1993): 229, 234. 23. Angela Lynch, Zoe Rathus and Rachael Field, “The Future of Family Law Property Settlement in Australia: A 50:50 Split or Community of Property Regime? Some Issues for Women,” Queensland University of Technology Journal 15 (1999): 77, 83. 24. Sophy Bordow and Margaret Harrison, “Outcomes of Matrimonial Property Litigation: An Analysis of Family Law Cases,” Australian Journal of Family Law 8 (1985): 73–100. 25. The significant cases to note include In the Marriage of Scott (1977) 29 FLC 90-251; Hayne v Hayne (1977) FLC 76, 412; Smyth v Smyth (1977) FLC 90-283 (1 January 1977); Healy v Healy (1977) FLC 76, 564 (1 January 1977); James v James (1978) FLC 77, 522 (90487); Talbot v Talbot (1979) FLC 90-696 (1 January 1979). 26. Lee Steere v Lee Steere (1985) FLC 91-626. 27. Ibid 80077. 28. Family Law Act 1975 (Cth) ss 75, 79. Note my comments in Stanford’s case in this regard.

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29. For traditional overview of the law in this area see Malcolm Voyce, “Family Farming and Property Settlements under the Family Law Act 1975 and the Category of ‘Special Contributions,’” Queensland University Law Journal 34, no. 2 (2016): 341–61. 30. Appeal 59 of 1990 Suit No TV 2478 of 1989. 31. Pike and Pike [2009] FCWA 19. 32. Casper v Casper [2009] FamCA 989 (15 October 2009). 33. Cumpton v Cumpton (2007) 38 Fam LR 377. Contrast Cuneo & Cuneo [2006] FamCA 158 (17 March). 34. Ibid [109]. 35. Ibid [116]. 36. Ibid [118]. 37. See Kaine and Kaine No LN4903 of 1983. 38. Kaine and Kaine, 4. 39. See Constantina Safilios-Rothschild, “A Comparison of Power Structure and Marital Satisfaction in Urban Greek and French Families,” Journal of Marriage and the Family 29 (1967): 345–52. Clarke’s work in the Mallee region suggests that women often acceded to their husbands’ decisions to support the desire to keep the farm going over the long term and to support male continuity; see Josephine Clarke, “A Gender Analysis of Agricultural and Rural Restructuring in the Mallee Region,” Unpublished Doctorate (Monash University, 2014): 150–56, and Melissa Gibbs, Decision Making on Pastoral Properties: Women in Rural Australia, ed. Kerry James (Brisbane: University of Queensland Press, 1989). This research indicates that decisions are made through consultation and mediation. The cases, however, indicate that men in most cases impose decisions. 40. Kaine and Kaine, 6. 41. Kaine and Kaine, 10. 42. Gill Valentine, “Theorising and Researching Intersectionality: A Challenge From Feminist Geography,” The Professional Geographer 59, no. 1 (2007): 18; Margaret Higonnet, “New Cartographies: An Introduction,” in Reconfigured Spheres: Feminist Explorations of Literary Space, ed. Margaret Higonnet and Jean Templeton (Amherst: Massachusetts UP, 1994), 16; Creswell, Tim Creswell, In Place/Out of Place: Geography, Ideology and Transgression (Minneapolis: University of Minnesota Press, 1996), 8. 43. Ethington suggests that “all action and experience takes place, in the sense that it requires place as a prerequisite, and makes place, in the sense of inscription.” See Philip Ethington, “Placing the Past: ‘Groundwork’ for a Spatial Theory of History,’” Rethinking History 11, no. 4 (2007): 483. 44. Royston Lawson, “A Comparative Study of Domestic Contribution and Family Property Allocation in Australia, New Zealand and the United Kingdom,” International Journal of Consumer Affairs 15 (1991): 301. 45. Kaine and Kaine, 6. 46. Kaine and Kaine, 5. 47. Barbara Pini, “Farm Women: Driving Tractors and Negotiating Gender,” International Journal of Sociology of Agriculture and Food 13, no. 1, (2005): 1–18. 48. See Re Guthrie (1995) FLC 92-647. 49. Kerry Falkner, “Domestic Space and the Construction of Identity,” Bachelor of Arts Thesis, Edith Cowan University, 1994. 50. MacPhillamy v MacPhillamy No S2754 of 1982. 51. Galway v Tomkins No B5287 of 1990. 52. Kaine and Kaine, 3. 53. Galway v Tomkins, 9, and Higginbotham v Robinson 155 of 1990. 54. As regards the debate about the evaluation of work and on what basis it is excluded, see Archana Parashar and Francesca Domiello, The Family in Law (Cambridge: Cambridge University Press, 2017), 159–60. 55. Katherine Galloway, “Yours, Mine, or Ours?: Charting a Course through Equity’s Determination of Domestic Proprietary Interests,” Unpublished Doctorate (Melbourne University, 2017): 92.

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56. Daromir Rudnyckyi, “Objectifying Economics: Contemporary Themes in the Anthropology of Economic Knowledge and Practice,” in The Routledge Companion to Contemporary Anthropology, ed. Simon Coleman, Susan B. Hyatt and Ann Kingsolver (London: Routledge, 2016), 245. 57. For instance, the Harvester wage-fixing case found that a reasonable and fair wage was one which allowed an unskilled worker to support himself and his wife in “frugal comfort” (Ex parte H V Mckay (1907) 2CAR 1). At about the same time, the national statistics disguised the extent to which Australian women were engaged in farm labor. It was considered that “women in the fields” were not something that a new nation should reveal (Marilyn Lake, “Help Mate, Slave, Housewife: Women in Rural Families 1870–1930,” in Families in Colonial Australia, ed. Patricia Grimshaw, Chris McConville and Ellen McEwen [Sydney: Allen & Unwin, 1985], 179; Desley Deacon, “Political Arithmetic: The Nineteenth Century Australia Census and the Construction of the Dependent Woman,” Signs 11 (1985): 29. In 1995, the Australian Bureau of Agricultural Economics and the Australian Bureau of Statistics produced a report, Women on Farms (J. Gooday, “Women on Farms,” Australian Bureau of Agricultural Economics, Research Report 95, 1995). This report is a more recent example of the under-accounting of women’s work on farms. Alston claims that this is due to a narrow definition of “work” and a focus on tasks of importance to men (Margaret Alston, “Farm Women and Their Work: Why is it not Recognised?” Journal of Sociology 34, no. 1 [1998]: 32). 58. With the emergence of the companionate ideals of marriage, marriage became connected with an economic model—those husbands, by going out to work, freed their wives to stay at home. Under this approach, it was regarded that partners structured their lifestyles in a complementary way for their increased mutual benefit. Under this view, both partners were contributors, one contributing from the market economy and the other from the home (Jack Knetsch, “Some Economic Implications of Matrimonial Property Rules,” University of Toronto Law Journal 34 [1984]: 271). The assumption was that the husband worked for commodities and the wife for luxuries (Richard Posner, Economic Analysis of Law [Boston: Little, Brown & Co, 1977]). In this context, judges in the Family Law Court have recognized that marriage is a “socioeconomic” partnership in that homemaker contributions are to be given as much weight as breadwinners’. 59. Family Law Act (Cth) 79(4)(c). 60. As regards a similar idea in contract law, see Balfour v. Balfour [1919] 2KB 571, at 574 per Lord Atkin: “The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection, which counts for so little in these cold Courts.” See also Frances Olsen, “The Myth of the State Intervention in the Family,” University of Michigan Journal of Law Reform 18, no. 4 (1983): 835. In the context of contract law, see Patrick Atiyah, The Rise and Fall of the Freedom of Contract (Oxford: Clarendon Press, 1979), 8. 61. Patricia Thompson, Home Economics and Feminism (Prince Edward Island: Economic Publishing Collective, 1988); Royston Lawson, “A Comparative Study of Domestic Contribution and Family Property Allocation in Australia, New Zealand and the United Kingdom,” International Journal of Consumer Affairs 15 (1991): 369.

FIVE Governing at a Distance The Role of Trusts in Structuring Family Life in Rural Australia

INTRODUCTION On reading Judith Wright’s Generations of Men I was struck with great force by her account of how her grandfather, Albert Wright, spent evenings on his remote property in 1850s Australia going over and over his financial accounts. This may not strike us as an unusual activity, but Albert’s desperation, threatened as he was with drought and bank foreclosure, hit me with particular force. Albert Wright’s pastoral activities were typical of the era of “settler capitalism” 1 or colonial liberalism. 2 This pastoral expansion was funded during the heyday of British imperial investment in Australia. Only later, after reading Carnegie’s work on pastoral accounting and his description of the role that financial reporting systems played in pastoral development, did I fully appreciate the importance of accounting practices in rural Australia. 3 In a sense, Wright’s nightly financial activities encouraged me to think (like Miller) of the linkages or interdependencies between the practices and rationalities of accounting on the one hand, and the broader functions of the State on the other. 4 My purpose in this chapter is to develop earlier ideas of how accounting and legal practices as forms of inscription help structure relationships and provide a means for the state to “govern at a distance.” 5 This enables me to show how the decentered state rules through a diversity of structures in heterogeneous ways to regulate the lives of individuals. 6 In this sense, the work of Foucault and his notion of governmentality 7 is perti83

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nent, as Foucault argues that power does not necessarily reside in centralized government, but instead in everyday practices in civil society; this includes semi-private agencies like workhouses, asylums, prisons and social welfare agencies. In this sense, the state is involved in the private sphere through a multitude of agencies and techniques, some of which may only be associated loosely with the origins of the state. 8 The purpose of this chapter is to outline the importance of the classification of land (property/estates/tenure) to examine in greater detail how the specific deployment of the capital/income division in trusts operated alongside other discourses to reinforce the marginalization of the role of women. To achieve this, I develop the concept of governance to show that the state does not have a “unity,” “individuality” or “rigorous functionality” that controls the population by directly enforceable edicts implemented in the provinces. 9 Neither is the state controlled by the logic of class or the mode of production. 10 Rather, I argue that the state rules via a set of technologies that, in the particular context of this case, involve fundamental technical processes, such as accountancy practices, as well as the distinctions inherent within law, such as the capital income distinction. I remind my readers of four basic facets of what I describe as liberalism. Firstly, I see government as a problematizing activity, in that it poses obligations for rulers in terms of the problems it seeks to address (emphasis retained). 11 Secondly, I note that the programmatic aspects of government have been termed “political rationality.” 12 By their very nature, political rationalities are highly abstract and set out the broad objectives of government. Consistent with my decentered view of the state, I view these rationalities as also emanating or circulating at a local level as a product of local power centers. Thus, unlike Miller and Rose, I include in my view of political rationalities dominant popular discourses. I accept that these rationalities may not necessarily be abstract, but instead contradictory or diffuse in nature. This approach allows me to posit that ideologies are not always determinative at a local site, but can allow for local agency or resistance. Thirdly, I envisage liberalism as a form of governance requiring not so much a confrontation between governor and governed, but instead as a constant and often invisible reshaping of the taken-for-granted freedom of subjects. 13 Fourthly, as I have indicated, government also consists of technologies of government. 14 Technologies of government are diverse and include both mundane and sophisticated mechanisms. These comprise techniques of notation, computation and calculation; procedures of examination and assessment; the invention of devices such as surveys and presentational forms such as tables; the standardization of systems for training and the inculcation of habits; the inauguration of professional specialisms

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and vocabularies; and lastly, building design and architectural forms. 15 Importantly for my purposes, I include in this list (as suggested by Miller and Rose) legal classifications and accountancy practices. These technologies make it possible to document behavior through subjects who then go on to produce their own inscriptions. By the term “inscriptions” I mean material and graphic representations, such as accountancy reports, numbers, tables, etc. 16 Robson has shown, using the work of Latour, 17 that inscriptions facilitate “action at a distance” because they are mobile, stable and allow combinability, in that they allow new forms of knowledge to be created. 18 These technologies are important because they enable “government at a distance” and do not rely on close physical proximity of the governed to ensure efficiency. 19 The forms of techniques I enumerate in this chapter enable fidelity or confidence of outcome to be obtained over a distance. Fidelity emerges when assemblages of heterogeneous elements are utilized, such as legal taxonomies and procedures: this enables previously unreliable actions to be prescribed, and hence become regular and observable. In this sense, Law talks of fidelity techniques. 20 Through this process, domains of the self become visible, bodies legible. New domains of the self become problematized as space for governance; inscriptions can be compared and analyzed. However, more importantly, when subjects are acted upon and habits instilled, “progress” can be quantified. Humans become calculable, the individual constituted as an effect and object of knowledge, and bodies are worked on to increase economic or non-economic “productivity.” 21 My task here is to show how discourses act in close alliance with technical devices established by accountancy practices. I argue that the link between capitalism and accountancy, by transforming assets into abstract values and by expressing quantitatively the results of business activities (through double-entry bookkeeping), clarified the aims of business and provided a rational basis through which capitalists could direct their investments. Finally, it allowed the separation of the business from its owners, and hence the growth of the limited liability company. I also build on some recent research in accounting, which argues that accounting practices may be regarded as social and institutional practices intrinsic to and constitutive of social relations, rather than being derivative or secondary. According to this research, accountancy is seen not only as a technology capable of acting on individuals, but furthermore as a social practice that can constitute and reconstitute the economic domain. 22 With regard to accountancy, three aspects are important in the context of rural Australia. Firstly, I will argue that accounting techniques, through the administration of estates, shape widowhood via the practice of granting widows income rather than capital. Secondly, the spread of accountancy practices saw the advent of an obligation to account through the maintenance of records pertaining to resources. Thus, accounting

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records have traditionally provided evidence of an accountant’s stewardship of the resources. As I will discuss, this is particularly relevant in the context of death duties. 23 Thirdly, it may be noted in passing that accounting practices assist pastoral communities by providing forms of calibrations in isolated settlements, thus assisting pastoral expansion. 24 This approach allows me to show how various technologies—together with classifications within land law such as the object/subject distinction, 25 the notion of estates, and tenure and trusts—were not neutral but involved political visions. I take it as established that the epistemologies within these dichotomies were fundamental to colonial liberalism. I have shown elsewhere how the political constructions behind these classifications reinforced the marginalization of women. 26 TRUSTS AND THE DEVELOPMENT OF SETTLER CAPITALISM IN AUSTRALIA: THE DEVELOPMENT OF ANALYTICAL DIVISIONS IN LAND LAW I have already referred to the existence of classifications in law, and elsewhere I have shown how liberal legal thinking allowed for the development of notions of mastery of self and of objects/land. 27 Davies argues that paradigms of identity in law, property and personality emphasize delimitation and exclusion of others. This knowledge was constituted at a distance: a knowledge that relied on making something an object of thought. 28 Over the course of time, English law developed a system of classification as regards various interests in land. Intrinsic to the structure of medieval land law was the view that the king held the underlying title to land because he had originally granted it in terms that derived from the largess of the Crown. In this sense, it was not clear what, if anything, an individual “owned.” The answer to this conundrum was the “doctrine of estates” or an abstract entity called the estate in land to interpose between the tenant and the land he worked. Thus, a tenant owned not the land itself but the conceptual estate. 29 Gray writes that by this ingenious compromise English law resolved the contradiction between theory and reality as regards ownership of land. 30 By a further device, a dimension of time was introduced into the description of the terms enjoyed by the “tenant.” Each tenant was given a “temporal slice” as regards the period of time they might enjoy the estate. By yet another abstract notion, the law employed a mathematical abstraction to recognize different rights across different periods of time. The “future estate” created a right that was perceived as existing in the future, co-existent with a right for a present estate. 31

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This standard explanation of tenure, estates and successive interests needs, for my purposes, to be supplemented by an explanation of trusts. The essence of a trust is that it splits the facets of property ownership. The trustee is the legal owner of property and the “real” or beneficial owner is the beneficiary. Thus, the essential feature of a trust is that the formal or “titular interest” in the property is vested in a nominee (or trustee) whose duty it is to protect the beneficial enjoyment of the person or persons who hold the beneficial interest under the trust. Trusts were versatile devices because they allowed the founder to play a range of tricks with three particular aspects of property ownership: nominal title, benefit, and control. 32 Legal doctrine is not neutral in the sense that it has instrumental aspects. The liberal idea of property distinguishes between legal subjects (persons) who are equal before the law and objects, which can be owned (things) and conceptualized as distinct from them. Subjects are therefore formally equal, but the distribution of assets is not. 33 In particular, the founder or settler of the trust generally may not interfere with the trust at his will. The trustee may control the property at his discretion. While the trust property may float in suspension, it is nevertheless controlled by those who exercise power. Once the trust is executed the settler is out of the picture; only the deed itself speaks. 34 The trust device makes it clear who owns property and this is explicitly recognized in law. In this way, the trust enables the concentration and preservation of capital, as well as the power and security of those who have legal ownership. 35 Cotterrell argues that the legal doctrine of property is important not only for what it expresses but also for its silences. He argues that, in the trust realm, the notion of property avoids certain important features of social life. In particular, he contends that the idea of private power is banished. 36 Thus, the device of the trust, which was initially developed to protect the property of knights away on crusades, later made it possible for English law to recognize many forms of property ownership without attracting the technical and ideological conflicts implicated in the doctrine of corporate personality found in continental legal systems. 37 In essence, the trust device and the subsequent development of life estates enable those who have control (the trustees) to exert private power or, to use Hale’s term, “private government.” 38 To illustrate the role of trusts, I discuss several forms it took in rural societies, beginning with the strict settlement in England in the nineteenth century and then turning to recent usages of trusts in rural Australia.

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STRICT SETTLEMENTS There is nothing, perhaps, in the institutions of modern Europe that comes so near to an imperium in imperio (an empire within an empire) as the settlement of a great English estate. The settler is a kind of absolute lawgiver for two generations: his will suspends for that time the operation of the common law of the land and substitutes for it an elaborate constitution of his own making. The trustees of a family settlement are something like the constitutional safeguards of a complex political system; their presence is, in ordinary circumstances, hardly perceived, but they hold great powers in reserve, which may be used with effect during an emergency. 39 Wealthy families in England developed over the centuries a particular form of the trust device called the “strict settlement” in order to keep family property intact in the hands of successive elder sons. Its principal aim was to inhibit any disposal of family estates by heirs outside the family. The strict settlement has been described as a complicated series of life estates that could be set up at any one time. However, the most common event leading to its creation was the coming of age of the eldest son. Generally, there had to be a resettlement in every generation if the constraints on disposal were to be maintained. 40 Every substantial landowner in the eighteenth and nineteenth centuries in England was subject to strong pressure from the land-owning classes to adopt strict settlement as a means of controlling land estates, thereby guaranteeing the political position of the “landed estate.” 41 By the end of the seventeenth century, a fairly standard form of strict settlement had evolved at the hands of eminent conveyancers, and was endorsed by the courts. This form of conveyance survived until the beginning of the twentieth century, when death duties led to its demise and general lack of effectiveness. Strict settlements made a significant contribution to the consolidation and preservation of wealth and power for the land-owning classes of England. By the mid-eighteenth century such devices had been imposed on up to three-quarters of English land. 42 New families could obtain access to the land-owning class through the purchase of land; however, this was difficult, given the limited number of hereditary titles available. The only means to buy new land was to mortgage existing properties or to arrange for an advantageous marriage to a wealthy heir. As a buttress against the possibility of family ownership of land, the strict settlement acted as a line of defense against short-sighted sales by an heir or heiress. 43 It has not been my intention to outline the law of strict settlement. Rather, I seek to show how the concept of the trust was a semi-autonomous device or facilitative law 44 (a fidelity technique) that enabled trustees to utilize a form of family arrangement to act as a property-holding

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vehicle. In this context, we should note how lawyers both sustain and support middle-class ideologies, as well as invent new categories of ideas about trusts in response to specific socio-economic problems. 45 Australia, for a variety of reasons, never utilized strict settlements. 46 Historians have indicated the reasons for this: vestiges of moral economy imported by convicts, resentment over the treatment of labor in the era of industrial capitalism, suspicion of efforts to reproduce English-style class relations, and the scorn heaped on efforts to establish a “bunyip aristocracy.” 47 English dynastic notions of property were foreign to Australian soil. While the colonial gentry had prospered and retained substantial political power, it did not, on the whole, successfully transplant British “customs of patronage and deference in such an uncongenial soil.” 48 In short, colonial aristocracy was on the defensive, and state governors had to take into account popular sentiment, such as squatters’ need to access land. While ownership of rural land in Britain was consolidated in few hands and continued to provide the social and political base of the dominant classes, the opposite was generally true in Australia, in that land was freely available. 49 In essence, property was a commodity. Since the founding of Australia, the formal device of strict settlement has been extremely rare. 50 Greater use was made of life estates set up with a trust in a will, or trusts under the Settled Land Acts. 51 Such arrangements are usually called “trusts” rather than “settlements” and are governed by the various State Trustee Acts. 52 In effect, the universal form of trust and the power politics behind it were remodeled in a different form through life estate trusts and family trusts. We may recast Pollock’s observation, cited above, that while trusts did not act as constitutional safeguards in the English sense, they allowed trustees to hold great powers in reserve, not only to be used in an emergency, but also as vehicles for the enforcement of trustee autocratic power. 53 RECENT USAGES OF TRUSTS The advantage of family trusts (whether they be inter vivos, testamentary trusts or life estates) is that they are usually seen to minimize tax. However, another advantage is that they enable the estate to be protected against extravagant claims by widows/widowers or infant children. At the same time, the estate is protected against the possibility of “family property” being threatened by the consequences of divorce or insolvency. Most legal practitioners claim that family trusts are set up when relationships are stable and argue that the main reason for setting up trusts is to minimize income taxation. Kennedy argues that it is rare for a trust instrument to be designed for the purpose of defeating the property provisions of the Family Law Act. 54

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With competition and increased pressure for profits, the legal profession is ever seeking new products to sell. In addition to the well-known tax minimization reasons, solicitors advocate the use of trusts to help retain the farm or business in the family, in effect, to help retain the lion’s share of the property for the male line. Many practitioners understand that awarding a fair or at least reasonable share of the farm or business to a female claimant may ruin the chances of male continuity of the farm or business. The role of lawyers is not merely to sell a particular product. Legal products are not neutral but also have ideological consequences. Legal advice therefore retails ideology and fits clients into a particular view of social life. Thus, farming relationships or “business families” are molded by the very apparatus that lawyers choose to sell. Given both the perception that life estates are problematic and the rising rate of divorce, solicitors have recently stressed the need for family trusts. Family trusts have also become attractive as they may (in some states) be set up in the rural context without the payment of stamp duty. Solicitors in Western Australia have become especially aggressive in selling family trusts on the basis that it will “save” the family farm and “protect the estate against daughter-in-laws.” Normally it is the male in the family who consults the lawyer. Male lawyers, who make up the majority of lawyers in rural areas, readily appreciate the needs of men, particularly the fears that men have of losing their farms. At the same time, women in rural areas often find it difficult to locate a female solicitor or to find one that does not make value judgments about women based on their own personal values. 55 THE ROLE OF LIFE ESTATES The traditional approach as regards estate planning is that the husband and wife, in separate wills, create life estates for the benefit of their respective survivor (often called a “reciprocal will”). A life estate in the context of estate planning is usually created through a will. 56 Thus, the person who makes a will may go on buying and selling property. Upon the death of the will-maker, a life estate is created in favor of the grantee 57 (the surviving spouse). The essential feature of a life estate in its most common form is that the surviving spouse receives an interest in the property as a life tenant, but that interest determines (ends) on his or her death. 58 The time-honored role of a life estate is to achieve two purposes. 59 The first is that the life estate enables the surviving spouse to have the benefits of the estate during their lifetime while the freehold land or the capital is preserved for the children. The second advantage is that in creating a life estate it ensures the land is kept in the family for the next genera-

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tion. The third advantage in favor of a life estate for the surviving second spouse with the remainder interest preserved for children of a former marriage, is to balance the interests of that spouse against the need to benefit the children of an earlier marriage. 60 Life estates may be inappropriate in some cases, such as when it is more suitable to make beneficiaries the masters of their own destinies, where the assets do not lend themselves to ongoing trusts (such as personal chattels), and where the amount set aside is insufficient having regard to the costs involved. THE IMPLICATIONS OF LIFE ESTATES The restrictive rules for life tenants as regards life estates often frustrates the life tenant in various ways. Firstly, depending on how a life estate is set up, the life tenant may only receive the income from the life estate, and may not be able to utilize the capital of the estate as different needs arise. Secondly, the life tenant who normally receives the income from the estate may suffer as a result of inflation and, consequently, from a depreciating income. Thirdly, the life tenant, where there is customary obligation to repair in the life tenancy, is usually subject to an obligation to maintain and repair. Such a covenant in law imposes restrictions on the way the life tenant may treat the land so that the interests of successive beneficiaries are not depreciated. The usage of a life estate in a will is one of many strategies adopted by will-makers to restrict the life tenant. Others include restrictions on residence and clauses in restraint of marriage. 61 THE LEGAL PROBLEMS OF LIFE ESTATES IN DETAIL Although some legal advisers still recommend life estates as suitable in particular circumstances, they are increasingly falling out of favor. Three problems are seen to follow from the adoption of life estates. Firstly, the creation of life estates is seen to have unpredictable adverse capital gains taxation implications, as the law is unclear in this area. Secondly, it now may be regarded as unwise for a will-maker to leave a life estate to his or her surviving spouse. 62 Many advisers counsel against the use of life estates because they may be seen to provide inadequate maintenance at the instigation of a surviving spouse’s claim for further provision under Family Provision legislation. De Groot and Nickel argue that a surviving spouse may be awarded the whole of the life estate, assuming there are no competing claims. 63 Thirdly, there is the problem of conclusively demarcating what constitutes income and what constitutes capital. While this problem may be overcome with the provision of a clause in the will

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to apportion capital and income separately, the problem of family tension may remain. THE RIGHTS AND RESPONSIBILITIES OF CO-OWNERS Under the rules of trusts as regards life estates, there are differing rights and responsibilities for the co-owners or successive beneficiaries. A life tenant is entitled, during the continuance of the life estate, to possession and enjoyment of the asset. Upon the death of the life tenant, the remainderman is entitled to the property. For instance, as the duration of the life estate is temporally uncertain, the law encourages the life tenant to cultivate the land by giving the life tenant a right to emblements. Under the law of emblements, the remainderman can enter the life estate after it has come to an end and reap the crops that the life tenant has sown. The rule on emblements only applies to crops that are ready to harvest within twelve months; it does not extend to a right to pick fruit from trees. 64 A life tenant is liable for voluntary waste, 65 namely to some positive act of injury to the property that diminishes its value for the person next in line to receive it. However, a tenant is not liable for permissive waste, which involves passively allowing the property to fall into disrepair, unless the deed creating the life tenancy imposes an obligation to repair. 66 The law of waste provides an inadequate basis for the proposed adjustment of life tenants and remaindermen. Thus, without a specific clause to cover repair, a life tenant is not accountable if the house or farm falls into a dilapidated condition or is left uncultivated. 67 Where the life estate consists of largely money, the life tenant is entitled to the interest from the capital. Thus, should a life estate consist of annuities, they must be apportioned between capital and income. 68 A considerable body of law exists concerning the obligations of the life tenant to keep the land and buildings in reasonable repair. 69 Well-drafted wills detail who is responsible for outgoings. It is a well-established principle that the life tenant must maintain the same value of stock of trade as was received. 70 Moreover, all outgoings of a recurrent nature (such as rates and income taxes) that relate broadly to the property and benefit the life tenant must be paid out of income, while those outgoings that benefit the estate as a whole (such as investment advice) must be borne by the capital. 71 The widow/er may require a certain standard of living but be saddled with repair covenants. This can be highly unfair if a widow/er has extensive property to be maintained. A separate fund may be established for this purpose on farms or in businesses where surviving spouses have maintenance obligations. It is also advisable for the trustees to be given the power to sell an existing property and, if necessary, purchase another property.

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THE DUTIES OF CO-OWNERS AS REGARDS LIFE ESTATES Upon acceptance of the office trustee, a trustee is subject to a variety of imperative or facilitative duties which compel or allow a trustee to act in certain ways. 72 In the administration of an estate, a trustee is bound to refrain from acting in such a way as to favor one class of beneficiaries at the expense of another. This duty is most pertinent when there are beneficial interests in succession. In this context the trustees must not favor either the life tenant or the remainderman at the expense of the other. The generally accepted principle is that the life tenant receives the income from investments while the remainderman receives the capital. The idea is that the life tenant can live off the proceeds of the investments while the corpus is protected and reserved for the remainderman. 73 THE CAPITAL/INCOME PROBLEM The capital/income problem eventuates either when payments arise to be paid to support the life tenant or after the death of the life tenant when the estate is wound up. The problem for trustees is to determine whether those payments constitute capital or income and therefore should go to the remainderman or life tenant respectively (or their corresponding estates). The problem is exacerbated by the conflict of needs between successive beneficiaries: the life tenant wants income whereas the remainderman wants maximum capital growth. In most cases where trustees are instructed in the will to carry on business, the rights of the life tenant and remainderman for income and capital respectively will be set out in the terms of the will. 74 In modern times, it is thought advisable to invest a trustee with a proper discretion and to acknowledge the right of the trustee to exercise that discretion. The trustee, it is argued, should be given broad powers to make determinations about capital and income. Such clauses should also contain powers to stock or restock and purchase additional lands out of income or capital. However, if the trust instrument contains no express provisions, the trustees will have to determine what is to be distributed as income and what as capital. 75 The problem in the past, however, is that this type of clause has not always been inserted into wills. The concept of income and capital derives from ideas applicable to European agricultural economy from Europe and was developed by lawyers during the eighteenth century. In a predominantly agricultural economy, income was regarded as the annual harvest and capital was the land. 76 Income was regarded as arising from a purposeful activity such as farming activities and occurred fairly regularly such as with the passage of the seasons. Income was seen to be like an annual harvest as it was

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given off or separated by a fixed source and became available for consumption without depletion of the source. This principle can be seen in Hassell v Perpetual Executors Trustees and Agency Co Ltd 77 that is where a farmer left the income of his estate to his wife for her lifetime, stipulating that on her death the capital was to go to residuary legatees. The farmer died on 26 September 1950. Included in his estate were a large number of sheep which were shorn shortly after his death. The wool was sold for 20,095 pounds in November 1950. The Full Court held that the whole sum was income to which the life tenant was entitled: The reason why the proceeds of wool shorn and lambs dropped are brought into the accounts of a business as revenue items is to be found in the character in which wool and the lambs come into existence as independent subjects of property. They come into existence, by severance in the case of wool and by birth in the case of lambs, as produce of the sheep from which they are derived, and, like crops of grain and fruit, they belong to that class of produce which is periodically detached and radically recurs: they are, by their very nature, a profit.

This case illustrates clearly that certain objects (here sheep or stock) are regarded as capital while other objects (wool in this case) constitute income. By contrast, casual, sporadic or unexpected gains or gifts do not fit the concept of income because they appear to be the result of good luck. Lacking a continuing source such as a farm business, they cannot be expected to recur at regular intervals. A provident person would therefore regard such entities as different from income; consequently, those entities would not ordinarily be available for consumption. Capital gains, on the other hand, include all unexpected receipts. 78 The origin of the distinction between capital and income can be traced back to the practice of entailing landed estates in eighteenth-century England. Courts at that time had to consider the ramifications of such distinctions, generally deciding that the income of the estate belonged to the life tenant but that the life tenant did not have a right to spend the capital. The view was that land constituted capital and the annual harvest a regular income because the life tenant could dispose of the annual harvest without affecting the ongoing physical existence of the land. 79 Over the two hundred years subsequent to the development of strict settlement, different forms of wealth developed, such as securities and bonds. 80 The courts applied the same principles to these financial entities as they had to land. Thus, the factor to be maintained was the bond itself, not its actual monetary value. The rise and fall of the bond’s value in the market did not change the character of the bond. According to this view, should the bond be sold (perhaps at a profit), the entire proceeds of the sale retained the character of the original capital assets, as did any assets

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acquired with the money; any increase in the value was considered to be capital. The life tenant had no right to this increase because it was regarded as capital. Capital gains were therefore ignored. 81 We can see that the legal concept of capital is fundamentally different to that held by economists. An economist would view capital as the total value of assets in hand. A legal approach, however, treats the capital asset as res or a thing. According to this line of reasoning, lawyers would ignore capital gains, while an economist would treat that as income. 82 Hirsch writes that generally accepted accounting principles treat increases in wealth as income: he argues that it does not matter whether the income derives from normal profits or from inflation. In the farming context, the book value of new animals would therefore be treated as profit. 83 The application of an economic concept rather than a legal one would require regular revaluations of all the assets in the estate. This would involve considerable work and entail endless disputes between life tenants and remaindermen. It would also have required more detailed accounting records on the changing value of each asset. The res concept could be applied with elementary accounting records to ensure a clearcut distinction between capital and income because only a list of physical assets was required. 84 The transference to Australia of this legal concept regarding capital and income had important implications. Early records show clearly that banks insisted on such accounting practices; however, accountants or solicitors employed as trustees of estates deployed notions of capital and income in a flexible fashion. 85 Carnegie argues that accounting in Britain had reached a certain stage in its development by 1836 and that the spread of accountancy practices played a certain role in the development of the colony. 86 RURAL ACCOUNTING PRACTICE IN RELATION TO ESTATES Early historical records from Victoria suggest that by 1900 pastoral families had begun to keep some form of personal financial records showing annual profits, the movement of stock and stores, and shearing records. 87 These practices were developed locally before any governmental requirements, such as record-keeping for the purpose of death duties. When double-entry bookkeeping requirements were imposed, some properties kept working with the old system of accounts. It was only in 1893, according to Bridges, that Musson published the first farm accountancy system in the Agricultural Gazette of NSW. This work prescribed how pastoralists should keep accounts in order to ascertain whether they were making a profit or a loss. In 1900 Vigars published the first Australian book concerned with farm accounts, entitled Station Book-keeping. 88

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Carrying on from the long boom of the 1880s, pastoralists continued to borrow large sums of money to finance land acquisitions and erect homesteads. 89 At the same time, the 1877 land tax on estates in excess of 640 acres saw increasingly regulatory regimes put in place. 90 By the turn of the century, professional accountants had begun to sell their services. 91 Pastoralists now implemented accrual-based double-entry accounting systems, with an emphasis on periodic production of profit and loss accounts and balance sheets. Frequently, accountants sold these services to pastoralists on the basis that such services were needed for the determination and collection of death duties. 92 Thus, by the 1870s it had become necessary for pastoralists to employ accountants, 93 following pressure from banks and statutory requirements. The duties of trustees as regards life estates have already been described. It is clear that from 1900 the accounting professions were involved in estate management and saw it as a fruitful area of work. After the introduction of death duties, accountants were also involved in deceased estates, as they were required to produce valuations for probate. 94 The necessity of valuing assets and liabilities to help collect government revenue provided a convenient and reliable means for professional accountants to implement double-entry accrual-based accounting systems, and hence replace personalized ledgers previously kept by station owners. 95 EVIDENCE OF EARLY ACCOUNTING PRACTICES In an article published in 1922 in the Public Accountant journal entitled “The Accounts of Sheep Stations Managed by Trustees,” Hungerford argued it was impossible to be sure that apportionment between capital and income was correct. 96 Hungerford detailed the various types of ledgers that farmers utilized, such as cash books covering stores, petty cash, wages, shearing and paddock holdings. He recommended that, in cases where the station was controlled by trustees, the appropriate books should be kept in the public accountant’s office. 97 As regards stock valuations, Hungerford stated that these should be done annually as the information is needed for tax purposes. In particular, the article describes the accounts of stations run by trustees: Where an accountant’s services are most often called in is where the estate is settled in trust for the tenant for life, with remainder to others. He should be particularly on his guard in making up the accounts, against adjusting them too much in favour of the tenant for life. The temptation to do so is very great. The tenant for life is on the spot, and expresses himself vigorously if he conceives himself injured, and his hostility might be injurious to an Accountant’s professional success. On the other hand, the remainderman is absent, perhaps unascertained,

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and as the injury to him is comparatively remote he does not trouble to enquire about it at once. Moreover, his silence is not acquiescence, as it might be in the case of a tenant for life. He need not complain until he comes into his kingdom. Consequently, an Accountant should make it a point of professional honor to protect the remainderman. He should decide in his favor when there is a doubt. In doing so he will only discharge his duty to his real employer—the Trustee. If the tenant for life is over-paid he may die before it is discovered, and the Trustee will have no power to readjust the accounts out of the future income. When the tenant for life is a married woman, restrained from anticipation, the Trustee nearly always has to recoup out of his own pocket, an expenditure from which he derived no benefit. The Court is very chary of removing the restraint for the purpose of repaying the Trustee. 98

The implication is that a trustee would lean in favor of a remainderman against the interests of a life tenant (usually a woman, since women tend to outlive men). I suggest that this practice of apportionment acted to the detriment of the life tenant in favor of the interests of the son, who in most cases stood to receive the life estate on the death of the life tenant. I have also suggested that, at the turn of the century, farmers were increasingly forced to adopt accounting procedures. The imposition of accounting practices on pastoralists to make them submit information for government levy purposes required an obligation for farmers to collect and record certain types of information. 99 Economic development involved the progressive development of measures to assess the performances of each sector in terms of economic efficiency and production. Carnegie reports that the pastoral pioneers in the Western Districts of Victoria came from Scotland. These settlers carried with them important accounting insights gained from the Scottish Enlightenment. Carnegie argues that these pioneers brought with them practical texts as regards agricultural practices and accountancy. 100 My argument is that bookkeeping style represented an inscription and that bookkeeping as an inscription provided for the possibility of “action at a distance” to help implement the requirements of colonial capitalism. Carnegie argues that professional accountants considered their skills to be of great importance and that the correctness of their records was accepted as a version of the truth in court. 101 Audit certificate statements from early in the last century focused on the correctness of accounts that were examined in court. As recollected by the accountant Brentnall, 102 the following dialogue occurred between himself and a judge: Judge: Mr. Brentnall, are you prepared to stake your reputation as an accountant upon the accuracy of your statements as set forth in your report? Mr. Brentnall: Yes, your Honor.

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Judge: Then I have no further comment to make. The case is closed. In later years we see general acceptance by courts of accountancy records and the apportionment made by trustees, running through a series of cases up to the High Court case of McBride v Hudson. 103 Academic literature on accountancy carried the debate about the virtues or otherwise of the two main approaches inherent in the capital/ income distinction as regards taxation. 104 In the taxation context, lawyers did not wish to pronounce on business practices and thereby be seen to give guidance to accountants. 105 However, case law as regards trustees and their duties in the administration of estates, particularly the application of capital and income as regards the life tenant and remainderman— took a different perspective, compared with accountants and economists. Furthermore, as my case analysis shows, as regards the income/capital distinction in rural Australia the courts endorsed a particular interpretation of this doctrine which favored male inheritances of the farm. THE CASE LAW TREATMENT OF STATION PROPERTIES I have referred to the body of law that directs trustees to allocate receipts or payments to either an income or a capital account. Decisions about how to allocate such funds produced a considerable number of cases where trustees sought court rulings on how an allocation should be made or where a beneficiary challenged an allocation. 106 How payments should be apportioned in station properties between life tenant and remainderman has been said to involve, in the words of the leading legal text, “special considerations.” Such problems, argues Jacobs, arise from the buying and selling of stock, natural increment, and the unexpected problems of drought, fire and flood. 107 The particular problem in “station cases” revolves around the propriety of the use of profits (income) to buy further stock and the retention of natural increment of stock to the detriment of the life tenants. 108 Why a distinction should be drawn between pastoral cases and any other industry is not adequately explained in these cases. Arguing against the existence of such a dichotomy, Kitto argued in 1930 that there should be no distinction between pastoral cases and cases relating to other industries: “The contention is unsound that the general rule does not apply to pastoral industry in New South Wales as a drought is normal in this State.” Secondly, Kitto argued that a life tenant is not an insurer and there was no rule in ordinary trust law that a loss should be replaced out of the income of remaining investments. 109 From the literature available on rural accountancy, 110 as well as from legal cases regarding life estates, I suggest that annual (seasonal) or periodical valuations were made of stock to show stock losses and increases.

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Receipts were apportioned between life tenant and remainderman by the trustees, in some cases on an ad hoc basis, with no rigid rules of income and capital between life tenant and remainderman; there were even some more extreme cases that did not accord with settled legal principles. 111 Information on apportionment practices indicates a tendency towards the remainderman. This tendency might not necessarily indicate a bias towards the farming son, since the trustee might also be considering the interests of remaindermen daughters. I show later how courts endorsed this practice by the rule of “prudent management.” This approach, as Hungerford suggested, worked well for the interests of the remainderman as the property could be built up to increase the value of the remainderman’s interest. 112 It was only natural that this informal system, given family strife over estates, would be contested in the courts. I therefore examine the cases. The cases on station properties are confusing, but two broad lines of authority are discernible. THE EARLY CASES The first line of cases established that a life tenant was only entitled to what the ordinary course of prudent management allowed. The second line of authority established that the life tenant cannot demand an annual evaluation of the stock and a yearly distribution based on this procedure. 113 For instance, in McIntyre v McIntyre 114 a testator created a trust out of three cattle stations for the benefit of his family. After his death the trustees had wide powers of management, including powers to stock up, restock and purchase additional lands out of income. After the death of the testator, the stations were considerably understocked, so the trustees in the ordinary course of prudent management stocked up the stations, partly by prudent management and partly by purchasing new stock. As a consequence of these investments in new stock the life tenants had received no income. The court held that the trustees had an absolute discretion under the terms of the will to determine what was capital and what was income. Therefore, the life tenants were deemed to have received all their dues and consequently the sale of the stock belonged to the remaindermen. The court held that in cases where the testator directs that the income be paid to a life tenant, the latter is only entitled to receive in any one year the amount available in the ordinary prudent management of the business, during the course of that which was available for distribution as cash. As Harvey remarked: That is strictly the net income of the business and because there are still remaining in the business unsold assets, which if they had been realised during the year in question would have gone to swell the account

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This case reveals how widely drawn clauses may give power to trustees to determine capital and income. 116 It also shows that the concept of trustees’ prudent management gives wide scope to favor the interests of the remainderman. MCBRIDE V. HUDSON The earlier line of cases seems to have met with disapproval in the High Court ruling that decided McBride v Hudson. 117 In this case, the testator, Norman McBride, owned a grazing property in South Australia. During an illness, he had found it difficult to get adequate labor as his son was engaged in war service. Seasonal conditions had been bad and the farm was run down in stock to a carrying level of 1,850 sheep. The will of the testator left the property to the testator’s widow, Helda McBride, and his son, John McBride, in common during the lifetime of the widow, with the remainder going to the son and daughter. The will directed the trustees to carry on the business in pastoralism, stipulating that the profits should be shared during the wife’s lifetime between the wife and son in equal shares, less the son’s managing expenses. After the death of the wife, the farm was to be sold and the proceeds divided in equal shares between McBride’s son and his daughter, Molly Hudson, equally. By the time the testator’s widow died (eleven years after the testator died), the sheep numbered 4,346. During this period the life tenant went without income so that the estate might be built up. The trustees attempted to apportion the increase in sheep to corpus so they would be inherited by the remainderman. Those who stood to receive the widow’s interest argued that the increase in sheep was an unrealized profit built up at the expense of the life tenant, and accordingly should be available to the widow’s estate. The remaindermen contended that the increase constituted capital and should be given to them. The trustee’s livestock trading account for each year between the death of the testator and the death of the widow showed the stock in hand at the end of each year and its value against the running costs of the station to reveal book profits for every year. 118 These accounts were prepared after the death of the widow. Molly Hudson claimed a half-share of the increase of the livestock up to the widow’s death. The High Court ruled that although these accounts had been compiled in this fashion, the trustee must be taken to intend the profits to be ascertained according to the relevant business activity. The court held that it was thus incumbent upon the trustees to determine the appropriate method of accounting relevant to station properties. The testator, as a

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person conversant with the manner in which pastoral businesses were generally carried out on the property, had to be taken to have intended that the trustees adopted normal rural practice. 119 As there was nothing in the will to indicate to the testator how profits should be ascertained, it must be taken that he assumed that the accounts would be ascertained by the conventional method in the industry, as well as what income should be distributed at any time. Following this approach, the court held that the increase of sheep belonged to capital and there was no justification for a claim by the life tenant for book profits. In consequence, the proceeds of the increase of the sheep went to the remainderman instead of the life tenant. The approach the High Court took in this case sits curiously with the annual harvest theory. By comparison, another High Court decision a year later decided that surplus tin should be deemed profit for the life tenant. 120 Furthermore, in an important sense McBride v Hudson rejected any method of calculation referring the matter to be resolved by the intention of the testator. The result of this approach is that the court endorsed farming practice within discourses about domesticity and the sexual division of labor. The implications are that pastoral trustees may utilize their discretion to use fully the legal distinctions between life tenant and remainderman to the advantage of the remainderman. Should later decisions follow the McBride approach and regard, in the absence of express provisions, stock increases as capital for the remaindermen, this will decrease the living standard of the life tenant. Thus, where wills are drawn widely to give powers to the trustees to apportion capital and income in a discretionary manner, the general rule is that a trustee may increase stock from the time of carrying capacity and that seasonal expectations render this prudent. The rule is that this provision is drawn from income and works to the detriment of the life tenant. 121 Generally then, as long as the trustee favoring a remainderman can argue that he or she is acting prudently, and not building up stock to favor the remainderman, the remainderman’s interest will be advanced. 122 AFTER-THOUGHTS ON RULING AT A DISTANCE: LIBERALISM AND FREEDOM In revising this chapter it has occurred to me that I must clarify a possible misconception. This is that classificatory mechanisms within law once formulated within imperial law automatically resulted in certain outcomes on the periphery of the empire. This approach would conceive of law as being socially determinative. Rather, I prefer to see laws as shaping the possibilities of life. An alternative (also mistaken) reading of this chapter might suppose that graziers were enmeshed in dominant ideology and

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merely carrying out their prescribed role as pastoralist capitalists. My concern is to give consideration to the idea of resistance or “fighting back against domination.” 123 This orientation then gives consideration to the voluntary or self-reflective characteristics of the individual and the way liberal rationalities work through the conduct of the autonomous self. 124 Settlers in Australia in the eighteenth and nineteenth centuries, due to the broad economic transition in Britain, possessed a variety of attitudes towards central government and social hierarchy. McIntyre 125 has argued that some settlers held robust ideas of self-autonomy and were suspicious of the class establishment, while others accepted the legitimate authority of hierarchical society. In his critique of the debate over a hereditary upper chamber in New South Wales in the 1850s, Martin has likewise shown how later colonies, which provided leadership for radical movements, had little in common with the older established landed families and their more conservative views. 126 One of the vehicles of rural family enterprise was the trust 127 and the company. These fidelity techniques enabled families to carry out their family operations, which coincided with imperial ambitions. At the same time, British capital saw Australian colonies as a site for fruitful investment. 128 In this process, the role of the trust was important as it allowed capital accumulation at a local level with a convenient means of selfgovernance. While I have argued that the capital/income distinction worked to support the interests of remaindermen and, by implication, the long-term interests of pastoralism, it was not necessarily a forgone conclusion that this result would be uncontested, given the richness of family politics. 129 I have not been able to locate specific archival records for evidence of the details of family dramas fought out between trustees and beneficiaries. 130 However, a survey of court cases between 1825 and 1933 131 reveals that such tensions between trustees and beneficiaries were very real. While in trust law the beneficial ownership rests with the beneficiaries, in fact trustees have a high degree of control over the parties involved in a family trust through the exercise of the legal ownership. Cases litigated in this period show the frequency of disputes about whether or not widows should receive the trust property absolutely or merely as a life estate. 132 Other issues involve the degree to which the widow must repair the property, 133 support any children, 134 or whether she should lose control of the estate on remarriage. Likewise, children frequently attacked the trustee in order to gain more maintenance, greater investment in improvements, or on the basis that they should have access to continued funding from the estate despite their forisfamiliation. 135 These cases show the attempts of trustees to rule authoritatively over family affairs. In some cases the trustee is also a beneficiary, so the trustee may be looking after his or her long-term interest in the property along-

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side other beneficiaries. Likewise, some children (perhaps daughters) may be pursuing their own interests in litigation by asking for capital to be considered income, or remaining silent, knowing that their ideals are being fulfilled by their brothers’ or sisters’ legal proceedings. The widow, in most of these cases involving life estates, is castigated as being a problem in legal discourse because she is regarded as restricting the smooth transition of the estate between different generations of males. Alternatively, she may realize that she is receiving an unfair treatment but acquiesce in the interests of the greater good of the family. CONCLUSION Up until the end of the 1890s pastoralists used informal ad hoc procedures of farm recording based on needs as they arose. However, with the advent of accountancy firms promoting their services and the rise of pastoral lending, farmers adopted accounting practices based on the needs of taxation and death duties: this allowed them to meet the requirements of their banks and, where necessary, to assist in the administration of rural estates. By the turn of the century, dissatisfied litigants contested apportionments of receipts between life tenant and remainderman in the courts. In this respect, case law in Australia regarding the general administration of estates clearly followed English precedent in the context of the trustees’ duty as regards the application of capital and income. Trustees administering estates applied this principle based on the “annual harvest” theory, namely that annual increases should be received by the life tenant. 136 However, in the context of rural Australia, the courts adopted rulings consistent with the interests of “settler capitalism.” In effect, this created a new dichotomy that put the interests of the remainderman first: the division of minimal support for a widow against the interests of the remainderman was therefore maintained. This outcome reflected the interests of male continuity in farming, which was a gender-specific occupation with women as life tenants merely acting as a conduit between male generations. 137 The courts carried out the processes outlined above in two stages: firstly, the “early cases” endorsed the “prudent management” approach, thus giving the advantage to the remainderman; secondly, the McBride v Hudson approach, by implicitly rejecting the endorsement of any specific form of accountancy practice, refers in the absence of any specific instruction to current practice as authoritative. As most forms of local accounting were utilized to endorse the interests of the remainderman, the outcome was the same. Thus, while the “annual harvest” approach may not have been followed in this context, the ability of trustees to utilize the power of their office led to estates being divided into two temporal

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halves (life tenant and remainderman), to the general advantage of the remainderman. With the achievement of statehood in Australia, British imperial interests were faced with the problem of long distance control. 138 Australian colonies with stable state governments committed to a fully-fledged market system were seen as good investments, particularly as regards pastoralism and mining, and hence a suitable destination where capital might flow. 139 Imposed English notions of law had a clear epistemology resting on a set of classifications fundamental to the security of laissez faire capitalism. 140 These classifications or technologies of government concerning the ownership of property and classifications in trusts (life estates, and the capital/income division) were imbricated in a form of economy that allowed the state to rule itself. My argument in this chapter has been that these classifications or technologies had prescriptive effects because accountancy practices inscribed pastoralists, rendering them subject to the observation and control of pastoral banks. These technologies were embedded with (or coincided with) political rationalities concerning female dependency, which constructed women as economically unproductive. 141 In other words, such economic rationalities were infused with a substantial political or social correlation. 142 NOTES 1. Donald Denoon, Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere (Oxford: Clarendon Press, 1983), interprets ‘settler capitalism’ to describe a mode of production in settler societies in the southern hemisphere during the nineteenth century to 1914. 2. Stuart McIntyre, A Colonial Liberalism: The Lost World of Three Victorian Visionaries (Oxford: Oxford University Press, 1991), 88; Judith Wright, The Generations of Men (Sydney: Harper, 1995). 3. Gary Carnegie, “The Structure and Usage of Accounting Information in PreFederation Pastoral Industry Management in the Western District of Victoria (1836–1900),” Unpublished Doctorate (Flinders University, 1994). 4. Peter Miller, “On the Interrelations between Accounting and the State,” Accounting Organizations and Society 15, no. 4 (1990): 315. 5. I follow Rose and Miller (Nikolas Rose and Peter Miller, “Political Power beyond the State: Problematics of Government,” British Journal of Sociology 43 [1992]: 180) here in adopting this term from Latour. See Bruno Latour, “Visualisation and Cognition: Thinking with Eyes and Hands,” in Knowledge and Society: Studies in the Sociology of Culture, Past and Present, ed. Henrika Kuklick and Elizabeth Long (Amsterdam: Jai Press, 1986), 1–40; Bruno Latour, Science in Action: How to Follow Scientists and Engineers through Society (Cambridge: Harvard University Press, 1987); Bruno Latour, We Have Never Been Modern (New York: Harvester Wheatsheaf, 1993). 6. Peter Miller and Nikolas Rose, “Governing Economic Life,” Economy and Society 19, no. 1 (1990): 3. 7. Michel Foucault, “Governmentality,” in The Foucault Effect: Studies in Governmentality, ed. Gordon Burchell and P. Miller (London: Harvester Wheatsheaf, 1991), 73–86.

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8. Miller and Rose, “Governing Economic Life,” 1. 9. Louis McNay, Foucault: A Critical Introduction (Oxford: Polity Press, 1994), 118. 10. Philip Corrigan and Derek Sayer. The Great Arch: English State Formation as Cultural Revolution (Oxford: Blackwell, 1985), 7. 11. Rose and Miller, “Political Power beyond the State: Problematics of Government,” 181. 12. Miller and Rose, “Governing Economic Life,” 28. 13. Foucault, “Governmentality”; Gavin Kendall, “Governing at a Distance: AngloAustralian Relations 1840–70,” Australian Journal of Political Science 32 (1997): 223. 14. Miller and Rose, “Governing Economic Life,” 13. 15. Miller and Rose, 8. 16. Keith Robson, “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting,” Accounting Organisations and Society 17, no. 7 (1992): 685. 17. Latour, Science in Action: How to Follow Scientists and Engineers through Society. 18. Robson, “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting,” 697; Latour, Science in Action: How to Follow Scientists and Engineers through Society, 223. 19. Kendall, “Governing at a Distance: Anglo-Australian Relations 1840–70.” 20. John Law, Power, Action and Belief: A New Sociology of Knowledge (London and Boston: Routledge & Kegan Paul), 1986. 21. Michel Foucault, The History of Sexuality (London: Penguin, 1978), 184–94; Judith Butler, “Foucault and the Paradox of Bodily Inscriptions,” Journal of Philosophy 86, no. 1 (1989): 601–7. 22. Peter Miller, “Accounting as Social and Institutional Practice: An Introduction,” in Accounting as Social and Institutional Practice, ed. Anthony Hopwood and Peter Miller (Cambridge: Cambridge University Press, 1994), 4 (Miller’s emphasis); see also Anthony G. Hopwood and Peter Miller, eds. Accounting as a Social and Institutional Practice (Cambridge: Cambridge University Press, 1994). 23. Gary Carnegie, “The Structure and Usage of Accounting Information in preFederation Pastoral Industry Management in the Western District of Victoria (1836–1900),” Unpublished Doctorate (Flinders University, 1994): 16–17. 24. Carnegie, 20. 25. Gregory Alexander, “The Transformation of Trusts as a Legal Category 1800–1914,” Law and History Review 5 (1987): 305–6. I draw here on Alexander who argues that ‘categorical ordering,’ developed in late nineteenth-century thought, created the process of deferring boundaries, where specific categories within which substantive legal concepts could operate. 26. Malcolm Voyce, “A Life Estate or a Family Discretionary Trust: Which Route for Your Client?” College of Law Seminar Papers 97, no. 40, Sydney, 1996. See the change in census figures to disguise women’s work on farms (Desley Deacon, “Political Arithmetic: The Nineteenth Century Australia Census and the Construction of the Dependent Woman,” Signs 11 [1985]: 27–47), the cases from the Industrial Wage Commission which saw the male as the breadwinner and the female as a dependent (Reg Graycar and Jenny Morgan, The Hidden Gender of Law [Sydney: Federation Press, 1990], 84–91), and the treatment of war widows (Kate Blackmore, “War, Health and Welfare: The Great War and its Aftermath,” Unpublished Doctorate [Macquarie University, 1994]: 289–92). The work of Canadian women was also ‘invisible’ as the state did not officially count farm women’s work until 1991. See Diane J. Martz, “Canadian Farm Women and Their Families’ Restructuring, Work and Decision Making,” Unpublished Doctorate (University of Saskatchewan, 2006): 27. 27. Malcolm Voyce, “Ideas of Rural Property in Australia,” in Social Change in Rural Australia, ed. Geoffrey Lawrence, Kristen Lyons and Salim Momtaz (Rockhampton: Central Queensland University, 1996), 95–105. Ideas of property developed on the notion developed by William of Ockham who distinguished the difference between the faculty ‘of using a thing’ from the right to a thing. See Brian Tierney, “Villey,

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Ockham and the Origin of Individual Rights,” in The Weightier Matters of the Law: Essays in Law and Religion, A Tribute to Harold Berman, ed. John White and Frank S. Alexander (Georgia: Scholars Press, 1988), 1–31; Coleman, Janet Coleman, “Dominium in the Thirteenth and Fourteenth Century Political Thought and its Seventeenth-Century Heirs: John of Paris and Locke,” Political Studies 33 (1985): 73–100; Arthur S. McGrade, “Ockham and the Birth of Individual Rights,” in Authority and Power: Studies on Medieval Law and Government; presented to Walter Ullman on his Seventieth Birthday, ed. Brian Tierney and Peter Linehan (Cambridge: Cambridge University Press, 1980), 149–65. 28. Margaret Davies, “Feminist Appropriations: Law, Property and Personality,” Social and Legal Studies 3 (1994): 371. 29. Fredrick Lawson, The Rational Strength of the English Law (London: London, 1951), 66–67. 30. Kevin Gray, “Property in Common Law Systems,” in Property Law on the Threshold of the Twenty-First Century, ed. G. E. Van Maanen, A. J. Van Der Wolf and Gregory Alexander (Antwerp: Maklu, 1996), 247. 31. Gray, 247. 32. Graham Moffat, Graeme Bean, and John Dewar, Trusts Law: Text and Materials (London: Butterworths, 1994), 5. 33. Roger Cotterrell, “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,” in Critical Legal Studies, ed. Peter Fitzpatrick and Alan Hunt, 77–90 (Oxford: Blackwell, 1987), 22. 34. The controller of the trust is usually the trustee but in some forms of trust, settlers may retain some control as advisory trustees. 35. Cotterrell, “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,” 85. 36. Cotterrell. 37. Frederic W. Maitland, Equity and Course of Lectures (Cambridge: Bungate, 1936). 38. Neil Duxbury, “Robert Hale and the Economy of Legal Force,” Modern Law Review 53, no. 4 (1990): 421–44. 39. Frederick Pollock, The Land Laws (London: Macmillan, 1896), 117. 40. Moffat, Bean and Dewar, Trusts Law: Text and Materials, 36. It is not my intention here to outline in great detail the strict settlement. For references, see John Baker, An Introduction to English Legal History (London: Butterworths, 1990), 335–36 and Gerry Rubin and David Sugerman, Law, Economy and Society 1750–1914: Essays in the History of English Law (Oxford: Professional Books, 1984). 41. Michael Chesterman, “Family Settlements on Trust: Landowners and the Rising Bourgeoisie,” in Law, Economy and Society: Essays in the History of English Law, 1750–1914, ed. Gerry Rubin and David Sugerman (Oxford: Professional Books, 1984), 130. 42. Chesterman, 130. 43. Gordon Mingay, English Landed Society in the Eighteenth Century (London: Routledge, 1963); Gordon Mingay, The Gentry: The Rise and Fall of a Ruling Class (London: Longman, 1977); Eileen Spring, “The Heiress-at-law, English Real Property Law from a New Point of View,” Law and History Review 8 (1990): 273–96; Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England 1300–1800 (Chapel Hill: University of North Carolina Press, 1993). In later times, trusts for sale became more popular as an alternative to strict settlements; Peter Butt, Land Law (Sydney: LBC Information Services, 1996), 210. 44. See Rubin and Sugerman, Law, Economy and Society 1750–1914: Essays in the History of English Law. 45. Christine B. Harrington, “Outlining a Theory of Legal Practice,” in Lawyers in Post Modern World, ed. Maureen Cain and Christine Harrington (Buckingham: Open University Press, 1994), 33–36; Maureen Cain, “The General Practice Lawyer and the Client: Towards a Radical Conception,” International Journal of the Sociology of the Law 7, no. 4 (1979): 331–54.

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46. For a few isolated examples, see Rosalind Atherton, “‘Family’ and ‘Property’: A History of Testamentary Freedom in New South Wales with particular reference to Widows and Children,” Unpublished Doctorate, University of New South Wales, 1993, 103–6. 47. Stuart McIntyre, Winners and Losers: The Pursuit of Social Justice in Australian History (Sydney: Allen & Unwin, 1985), 20; Craufurd D. W. Goodwin, Economic Enquiry in Australia (Durham: Duke University Press, 1966), 365–66; Ged Martin, Bunyip Aristocracy: The New South Wales Constitution Debate of 1883 and Hereditary Institutions in the British Colonies (Sydney: Croom Helm, 1986). 48. McIntyre, Winners and Losers: The Pursuit of Social Justice in Australian History, 14. 49. A. Davidson and A. Wells, “The Land, the Law and the State: Colonial Australia 1788–1890,” Law in Context 2 (1984): 108. 50. Butt, Land Law, 215. 51. Butt. 52. Butt, 215. 53. Pollock, The Land Laws, 117. For a discussion of the grounds for removal of a trustee, see John Heydon and Mark Leeming, Jacobs’ Law of Trusts in Australia (Sydney: LexisNexis, 2006), 321–26. 54. Ian Kennedy, “How the Family Court Deals with Trusts,” College of Law Papers 96, no. 3 (1996): 125. 55. Australian Law Reform Commission, “Equality Before the Law: Justice for Women,” ALRC Report 69 Part 1 (1994), http://www.austlii.edu.au/au/other/lawreform/ALRC/1994/69.html, 218. 56. Butt says that in modern Australian property law, the life estate occurs predominantly as the creation of a will (Butt, Land Law, 133). Life estates may, however, be created inter vivos. 57. Butt, Land Law, 133. There are two varieties of life estate. The estate for the life of the grantee (“an ordinary life estate”) and the estate for the life of another (an estate “per autre vie”). 58. Roy Woodman, The Law of Real Property in New South Wales (Sydney: Law Book Company, 1980), 140; Butt, Land Law, 133. A life estate could determine on the happening of any specified event such as death of the life tenant, remarriage, entering into a de facto relationship or the happening of some other event such as children turning 25 years. In particular circumstances, the life estate can be extinguished by an agreement between the life tenant and the remainderman. See the rule in Saunders v Vautier (1841) 4 Beav 115. 59. The term “estate” denotes the right of seisin (possession) to the land. An estate is a “thing” separate from the land itself. This is possible because under feudal theory, the tenant does not own the land, he holds it from his lord, but he does own the estate in the land. 60. Rosalind Atherton, The Wise and Just Husband and Father: Wives and Daughters and the Family Provision Act, Aspects of Property Law (Sydney: Sydney Law School Continuing Legal Education, 1992), 18. 61. Charles Rowland and Gary Tamsitt, Hutley’s Australian Will Precedents (Sydney: Butterworths, 1994), 210; Moffat, Bean and Dewar, Trusts Law: Text and Materials, 199. 62. Rowland and Tamsitt, 208. 63. John De Groot and Bruce Nickel, Family Provision in Australia and New Zealand (Sydney: Butterworths, 2012), 91. 64. Butt, Land Law, 140–41. 65. See Cartwright: Avis v Newman (1889) 41 Ch.D 532. A tenant is not liable for permissive waste. He/she may accordingly allow the property to deteriorate and the court will have no jurisdiction to interfere or make an order charging the cost of the repairs against capital (see Re De Teissier’s Settled Estates [1893] 1 CLD 153, Poweys v Blagrave [1854] 69 ER 210). The trustees cannot interfere with the possession of a life tenant merely because he or she fails to keep the property in repair unless he or she is

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committing voluntary waste, that is, the state of disrepair that arises from acts of commission by the life tenant, not acts of omission. 66. Butt, Land Law, 144; Rowland and Tamsitt, Hutley’s Australian Will Precedents, 209. 67. Butt, 144. 68. Ford and Lee argue such annuities should be apportioned according to the rule in Re Chesterfield’s Trusts (1883) 24 ChD 643; see H. A. J. Ford and W. A. Lee, Principles of the Law of Trusts Law (Sydney: Law Book Company, 1995), 1120–230. 69. Butt, Land Law. 70. Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 541. 71. Moffat, Bean and Dewar, Trusts Law: Text and Materials, 373. 72. Gino Dal Pont and Donald Chalmers, Equity and Trusts in Australia and New Zealand (Sydney: Law Book Company 2007), 545–87. 73. Dal Pont and Chalmers, 575–76; Donovan Waters, Law of Trusts in Canada (Toronto: Carswell, 1984), 787; William H. Gover, A Concise Treatise on the Law of Capital and Income as Between Life Tenant and Remainderman (London: Sweet and Maxwell, 1933). A recent reformulation of the balancing of capital and income was discussed in Nestle v Westminster Bank P/C. [1993] 1 WLR 1260. In this case, Hoffman J saw the approach of modern portfolio theory as being a desirable investment strategy for trustees (Ford and Lee, Principles of the Law of Trusts Law, 10370: 26). 74. See the precedent suggested in Rowland and Tamsitt, Hutley’s Australian Will Precedents, 288. An appropriately drawn clause will also negate the rule in Howe v Lord Dartmouth (1802) 7 Ves 137 that wasting reversionary or hazardous assets be converted. 75. Ford and Lee, Principles of the Law of Trusts Law, 11250. 76. Flower, J., “A Note on Capital and Income in the Law of Trusts,” in Debts, Credits, Finance and Profits, ed. H. C. Edey and B. S. Yamey (London: Sweet & Maxwell, 1974), 86. 77. Hassell v Perpetual Executors Trustees and Agency Co Ltd (1952) 86 CLR 513. 78. Lawrence Seltzer, The Nature of Tax Treatment of Capital Gains and Losses (New York: New York Press, 1951), 25. 79. Flower, “A Note on Capital and Income in the Law of Trusts,” 85. 80. John Langbein, “The Twentieth-Century Revolution in Family Wealth Transmission,” Michigan Law Review 86 (1988): 722–51. 81. Flower, “A Note on Capital and Income in the Law of Trusts,” 86. 82. Flower, 87. 83. K. L. Hirsch, “Inflation and the Law of Trusts,” Real Property, Probate and Trust Journal 18 (1983): 615. 84. Flower, “A Note on Capital and Income in the Law of Trusts,” 86. 85. Gary Carnegie, “Pastoral Accounting in Pre-Federation Victoria: A Case Study of the Jamieson Family,” Accounting and Business Research 23 (1993): 204–18; Gary Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” Unpublished Doctorate (Flinders University, 1994). 86. Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” 15. 87. Gary Carnegie, “Pastoral Accounting in Pre-Federation Victoria: A Contextual Analysis of Surviving Business Records,” Accounting, Auditing and Accountability Journal 8, no. 5 (1995): 3–33. 88. Francis Vigars, Station Book-keeping: A Treatise on Double Book-keeping for Pastoralists and Farmers (Sydney: Brooks, 1914). 89. Carnegie, “Pastoral Accounting in Pre-Federation Victoria: A Contextual Analysis of Surviving Business Records,” 19; John Bailey, A Hundred Years of Pastoral Banking: A History of the Australian Mercantile Land and Finance Company (Oxford: Clarendon Press, 1966), 78–84.

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90. For a discussion of the introduction of death duties and income tax in Australia see Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” 43. 91. Graeme Davidson, The Rise and Fall of Marvellous Melbourne (Melbourne: Melbourne University Press, 1978), 111; Fong Chua and Chris Poullaos, “The Dynamics of Closure Amidst the Construction of Market, Profession, Empire and Nationhood: An Historical Analysis of an Australian Accounting Association 1886–1903,” Accounting Organisations and Society 23, no. 2 (1998): 155–87. 92. Carnegie, “Pastoral Accounting in Pre-Federation Victoria: A Contextual Analysis of Surviving Business Records,” 13. 93. Carnegie, 23. 94. Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” 240. 95. Carnegie, 241; R. T. Oehr, “How to Become a Skilled Accountant,” Banker’s Magazine of Australasia 29 December (1899): 291–300. 96. C. Hungerford, “The Accounts of Sheep Stations Managed by Trustees,” The Public Accountant, March 27 and April 28 (1922): 296. 97. Hungerford, 280. 98. Hungerford, 301. 99. Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” 43, 47. 100. Carnegie, 286. 101. Carnegie, 284. 102. Thomas Brentnall, My Memories (Melbourne: Robertson, 1938), 11. 103. McBride v Hudson (1963) 107 CLR 604. For earlier cases see Thornley v Boyd (1925) 36 CLR 526 and Ritchie v Trustees Executors and Agency Co Ltd (1951) 84 CLR 553. 104. T. A. Lee, “The Early Debate on Financial and Physical Capital,” in Accounting History: Some British Contributions, ed. Robert Parker and Basil Yamey (Oxford: Clarendon Press, 1994), 493. See Lee for an outline of the debate within accounting circles which he identifies as two alternative capital maintenance approaches, that is, maintenance based on capital defined in terms either of a specific monetary attribute such as the money unit or the purchasing power unit (financial capital); or a specific attribute of the reporting entity’s physical asset structure such as its physical units or operating capacity (physical capital). 105. Lee, 494. 106. Ford and Lee, Principles of the Law of Trusts Law, 11250. 107. Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 481. 108. Heydon and Leeming, 481–83; N. B. Rydge, W. B. Rainsford and J. F. Arnott, Australian Executor’s Law and Accounts (Sydney: Law Book Company, 1928), 150. 109. Kitto in a submission for the life tenants in Union Trustee v Eckford (1930) SR 31 NSW 92 at 97. 110. See Vigars, Station Book-keeping: A Treatise on Double Book-keeping for Pastoralists and Farmers and the review of accountancy literature by Bridges 1975. There were also texts on trust accounts, such as Rydge, Rainsford and Arnott, Australian Executor’s Law and Accounts and Philip H. Allen and Raymond G. Reynolds, Australian Executorship Law and Accounts (Sydney: Law Book Company, 1942), that had sections on pastoral trust accounts. 111. Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” 142, 147, 170; Hungerford, “The Accounts of Sheep Stations Managed by Trustees.” 112. Hungerford. 113. Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 482. 114. McIntyre v McIntyre (1914) 15 SR (NSW) 45. 115. Per Harvey J in McIntyre v McIntyre, 48–49.

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116. See Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 529–40. 117. McBride v Hudson [1963] ALR 226. 118. McBride v Hudson. See the explanation judgment in Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 482. 119. See Taylor J at 623 but see the statements by C. J. Dixon, Taylor and Menzies JJ in Kelly v Perpetual Trustees Co Ltd (1963) 109 CLR 258 at 269–70 on McBride v Hudson. 120. Kelly v Perpetual Trustees Ltd (1963) 109 CLR 258. 121. See McBride v Hudson, 625; MacIntyre v MacIntyre and Porter v Porter (1930) 31 SR (NSW) 115; Allen and Reynolds, Australian Executorship Law and Accounts, 203. 122. Porter v Porter, 124. 123. Michael Drinkwater, “Visible Actors and Visible Researchers: Critical Hermeneutics in an Actor Perspective,” Sociologia Ruralis 32 (1992): 369. 124. On the question of Foucault and resistance, see Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994), 17; Mitchell Dean and Barry Hindess, “Introduction: Government, Liberalism, Society,” in Governing Australia: Studies in Contemporary Rationalities of Government, ed. Mitchell Dean and Barry Hindess (Melbourne: Cambridge University Press, 1998), 16–17. 125. McIntyre, Winners and Losers: The Pursuit of Social Justice in Australian History. 126. Martin, Bunyip Aristocracy: The New South Wales Constitution Debate of 1883 and Hereditary Institutions in the British Colonies, 51. 127. The history of trust law in Australia has not been written. The English law on trusts was first adopted in 1830 in New South Wales. In 1849 and 1852, the Trust Acts were amended. The last amendment was concerned with the duties of trustees, as it appeared that the former Act may have been deficient in estimating deceit. Together with the 1898 Act, it extended the investments a trustee might invest in. I am grateful to Patrick McCormack for this information. 128. Craufurd D. W. Goodwin, The Image of Australia: British Perception of the Australian Economy from the Eighteenth to the Twentieth Century (Durham: Duke University, 1974); Simon Ville, “Networks and Venture Capitals in the Australian Pastoral Sector before World War Two,” Business History 38, no. 3 (1996): 48–63. 129. Different historians have described the unequal power structure in the rural nineteenth century with its frequent male abuse, improvidence, drunkenness and violence; see Raymond Evans, “A Gun in the Oven: Masculinism and Gendered Violence,” in Gender Relations in Australia: Domination and Negotiation, ed. Kay Saunders and Raymond Evans (Sydney: Harcourt Brace Jovanovich, 1992), 202. 130. Carnegie, “The Structure and Usage of Accounting Information in pre-Federation Pastoral Industry Management in the Western District of Victoria (1836–1900),” and Rosalind Atherton, “Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales,” University of New South Wales Law Journal 11 (1988): 133–57, amongst others, provide an indication of the struggles involved between men and women over estates. 131. Australian Digest 1825–1933, Law Book, 1940. 132. For example, Butterworths v Butterworths [1916] SALR 180. 133. For example, O’Donnell v Perpetual Trustees (1917) 127 SR(NSW) 547. 134. Chambers 19 VLR 1893. Dutton v Dutton [1892] 19 VLR 57. 135. Holdsworth v Holdsworth 33 (SR) NSW 1932:34. This case establishes that the right for a son to receive maintenance does not end when he leaves the family, but the forisfamiliation principle applies when a daughter does so. See p. 46 per Long Innes J. 136. Allen and Reynolds, Australian Executorship Law and Accounts, 172. 137. Voyce, “A Life Estate or a Family Discretionary Trust: Which Route for Your Client?” 138. Robert Connell and Terrance Irving, Class Structure in Australian Society (Melbourne: Longman, 1992), 108–9. 139. Ville, “Networks and Venture Capitals in the Australian Pastoral Sector before World War Two.”

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140. H. Okoth-Ogendo, “The Imposition of Property Law in Kenya,” in The Imposition of Law, ed. S. Burman and B. H. Harrell-Bond (New York: Academic Press, 1979), 156, writing on Kenya. 141. Malcolm Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm,” Australian Journal of Family Law 7 (1993): 191–224. 142. Miller, “Accounting as Social and Institutional Practice: An Introduction,” 13.

SIX Towards a “Family Provision Jurisprudence” A Case Study on Farming Inheritance Cases

Scholars working in different fields have long had an interest in the study of rural inheritance. 1 One focus for both lawyers and sociologists has been the extent to which children may expect a share of the family estate. In comparing three different legal traditions, Tate has noted that, in the United States, parents may disinherit children. 2 By contrast, in civil law jurisdictions children are entitled to a reserved share, unless interested parties show some specific grounds for disinheritance. 3 Some Commonwealth countries, 4 including Australia, follow a Family Maintenance Legislative system, also termed a Family Provision system, which limits testamentary freedom. 5 In this system, testamentary freedom has been limited by the power of the courts to order that provision be made out of a deceased estate in favor of a certain class of dependents if the court is satisfied that adequate provision has not been made for an applicant. 6 The way that rural claimants under Family Provision legislation have had their claims dealt with has been well described elsewhere. 7 This chapter concentrates on the expectations of farming sons who have worked on the property and expect to receive a major share of a family farm. This claim is compared with the claims of daughters and widows. Part one of the chapter analyses the general objectives of Family Provision, discusses the original rationale for the legislation, and the treatment in law of applications made by farming sons. Part two of this chapter takes a sociological approach to law: it examines the Family Provision acts within the anthropological literature on dispute settlement. This part of the chapter outlines how the Family Provision Acts 8 may be regarded 113

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as a type of facilitative arrangement to solve family property disputes. This analysis shows how dispute procedures and the culture of dispute resolution reinforce case law so that, in most instances, males continue to receive the greater portion of inherited property. While this chapter covers the well-described area of law known as Family Provision law, it makes two significant contributions. Firstly, it describes the nature of Family Provision within the literature on dispute processes. Secondly, it reviews the nature of “discretion” utilized by judges pursuant to this legislation. My review of discretionary process describes the conventional analysis of this subject but also suggests a different perspective based on a “user’s view of law.” The aim is to create what I shall term “Family Provision jurisprudence.” PART ONE: THE GENERAL OBJECTIVES OF FAMILY PROVISION LEGISLATION This form of legislation imposes a moral obligation on every testator or testatrix to make proper provision for the support and maintenance of certain defined dependents. 9 Should a testator or testatrix fail to make such provision in his or her will, or should intestacy provisions fail to provide for such a dependent, the aggrieved dependent may obtain an order of this type, varying the terms of the will or the statutory rules on intestacy. The Act, however, does not empower the court to make a new will for the testator. Courts will only alter a will (or intestacy provisions) insofar far as it is necessary to provide for the proper maintenance and support of dependents, or where adequate provision has not already been made for this purpose. 10 Scholars who have examined the introduction of Family Provision have generally assumed Family Provision legislation was enacted to deal with the issue of aberrant testators. For instance, Family Provision has been described as a “targeted response to ensure proper provision has been made according to the moral responsibility reposed in the testator.” 11 It is a “curial intervention” where moral obligations of support have been discarded. 12 THE ORIGINAL RATIONALE FOR FAMILY PROVISION LEGISLATION The first instance of this sort of legislation was passed in New Zealand: it was a response to concerns that families were left destitute when male breadwinners bequeathed their property to “outsiders” (non-family members), such as churches or charities, without first adequately providing for their families. This situation was exacerbated by the poor chances widows generally had of earning a decent living. 13 Concern was also felt

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by parliamentarians that destitute families would become a burden on the state. Another reason for the introduction of this legislation was the consideration that widows who had assisted their late husbands in accumulating property should be rewarded for their efforts after the husband’s death. This is perhaps seen not so much as compensating those who stood on an equal footing with their husbands, but the rewarding of “deserving” wives for good and faithful conduct. 14 In Australia, the broad concerns were of a similar nature. 15 Another issue for those promoting the legislation was that the proposed reforms intended to provide a mechanism for ensuring that testators met the need of their dependent relatives, and therefore relieve the state or community of that burden. 16 Frequently it was argued that the wife had a moral right to enjoy the contributions she had made to the estate: A terrible thing that when a woman has worked for a lifetime to make a home, and to help her husband to get some property together, he should have the power, when perhaps a little bit silly in his old-age, or when he is led astray by somebody else, to will away the property that really belongs to his widow. 17

THE TRADITIONAL APPROACH TO FAMILY PROVISION LEGISLATION Croucher has argued that Family Provision legislation (and the relevant cases) developed an approach that required judges to assess what a just and wise husband and father would have done in similar circumstances. Therefore, Family Provision legislation did not represent a reduction of testamentary power but rather devolution of it. 18 Instead of the liberation of patriarchy, it was merely a reformation of it. Atherton argues: This was not recognized at the time, which reveals the narrowness of the perspective on the relevant issue. It was still locked into the idea of the sanctity of property rights and hence any incursion into them was seen as a considerable development. Although the Testator’s Family Maintenance Act (NSW) represented a qualification to some extent on the exercise of testamentary powers, its key points were thoroughly consistent with the nineteenth century logic of property. The husband as property owner should be able to exercise his powers of discrimination through the use of his testamentary powers, and only where the Court considered that he erred in the allocation of his bounty should there be any intervention. 19

Croucher’s argument is applicable in the rural context because, overall, the Acts did not interfere with the patriarchal values of farming. The legislation was interpreted to support the “framework of moral respon-

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sibility, duty and obligation” inherent in nineteenth-century property ideas. 20 This concern was part of a larger preoccupation the state had to regulate the internal conduct of those who owned property or were perceived to be in a family relationship concerning property governance. 21 Governance of property relations was not merely concerned with social control and regulation of property owners. Rather, with the advent of “new liberalism” 22 as a guiding principle, such governance was seen as necessary to encourage wayward citizens, such as those who showed a lack of capacity to work, were intemperate or who did not properly care for each other. 23 On a superficial level, Family Provision legislation was neutral to the sentiment of rural farmers maintaining property in the hands of a son. The Act did not direct the formal retention in the family of one form of property (such as a farm) against another. If the farm had to be sold to provide for maintenance, that was seen as unavoidable. 24 Thus, on one level of analysis, Family Provision legislation does not detract from or support the strong rural sentiment that farms should not be divided but instead remain as economically viable units. In the New Zealand context Nicola Peart argues that Family Provision legislation, 25 which was introduced one hundred years ago, can now be seen as guaranteeing a right of inheritance to members of an immediate family, and in particular to the children of the deceased. 26 As regards Australia Croucher notes that, with the relaxation of will formalities and dispensing powers for wills, we are “entering an era where we override testamentary freedom.” 27 Two other commentators, namely Myles McGregor-Lowndes and Frances Hannah, intimate that perhaps testamentary freedom is now an illusion because, with the facility of mediation, many cases are settled out of court in a situation where all claimants get something. 28 I take these comments to indicate a concern at the trajectory of current law, rather than its present form. In the farm context, while it is true that many family members do receive a small amount from an estate, there is no adoption of the principle of equal inheritance. FAMILY PROVISION LAW AND DISCRETION Family Provision legislation has been regarded as containing “twin tasks.” The first is to determine whether the applicant has been left without adequate provision, and therefore falls within the pool of eligible applicants. The second task relates to the discretionary question as to whether provision ought to be made and, if so, to what extent. 29 In making such decisions the courts must have regard to the various statutory considerations as specified in the various Acts. For instance, in New South Wales there are specific factors to be considered, such as the

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size of the estate, the means and financial circumstances of the applicant, the relationship of the applicant to the deceased, the age and health of the applicant, and the services rendered by the applicant to the deceased. 30 The approach in Victoria has been called a “status based” approach, as statutory criteria must be considered when determining whether the deceased person had responsibility to provide for a person. 31 How does this form of discretion operate in Family Provision cases? To show how this legislation should operate, courts have developed the concept of “moral duty” in order to take into account ethical considerations and contemporary social attitudes. 32 As the courts have made clear in assessing the concept of moral duty, “community standards” are paramount. 33 I now comment on the early development of the “morals approach” by the courts. In assessing the needs of applicants in Family Provision cases, judges have adopted the approach of placing themselves in the position of the “testator, and to consider whether or not the testator has been guilty of a manifest breach of that moral duty” that a husband owes to his wife and children. 34 As a Victorian judge says, “Each case in the field must be judged on its own facts; and it is not within the province of a trial judge to do more than explain the reasoning behind his or her decision.” 35 Another judge acknowledged, in reference to a particular case, that although he regarded his decision as “borderline” that “other minds may have come to a different conclusion.” He acknowledged that “this is the nature of this legislation.” 36 There has been a divergence of views about the “morals approach,” perhaps more in “form than substance.” It has recently been restated by the High Court that such an approach is of “value and should not be discarded.” 37 How are community standards to be located by judges in the sense of a reference point? In this regard, judges have made it clear that the reference point that indicates the standards of the general community is contemporaneous with the time the will speaks. 38 It is clear that the term “moral duty” allows no invitation to inquire into morality at large, but only to make such an inquiry within the jurisdiction conferred by the Acts. 39 A widely framed jurisdiction must be exercised in a principled way according to the concepts of “adequate,” “proper,” “maintenance,” “advancement” and “support,” coupled with the test of “moral obligation.” 40 In Family Provision cases discretion must be exercised judicially according to the rules rather than private opinion, taking particular account of the principles of reason, justice and the other factors cited above. 41 As intimated by Bryson J in Gorton v Parks 42 it is recognized that this moral approach is not spelled out and the court is entrusted in each particular case to work out the implications of this test, as it is not established through a fixed concept. This part of “the judicial function must be exer-

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cised contemporaneously and is incapable of being entrenched in the system of rules of law established by past precedents.” 43 The judge here recognizes that what constitutes a moral community changes over time and therefore no definitive test can be set in stone. Two comments are applicable here. Firstly, there is the implication of no outer limit, which might serve as a parameter. This is of course not the case, as in most areas of law there are still parameters specified by legislation or public policy, as I have indicted above. Secondly, each determination functions as a one-off evaluation of a particular situation and is not generalizable into other contexts. The above represents an overview of how discretion has been discussed in Family Provision law. However, some scholars have reflected one theme to be found in part two of this chapter: discretion must be studied in regard to its outcome, whether it advances the goals of society and the extent to which the judge reflects the mores of that particular society. 44 I call this the “dispute settlement” approach to discretion. CASE INVOLVING FARMING SONS It is frequently the case that sons help to build up a family farm. 45 The farm is not only a place of residence in the form of the family home, the place of socialization for children into their various roles as farmer or non-farmers, but also a broader site of social placement that establishes status, which may be passed on through social inheritance. In farming cases, the work done by sons may take several forms. Frequently a son will leave school early and join his father after an agricultural or trade course; these sons are subsequently trained by their fathers to be farmers. In many legal cases an applicant may have helped build up the assets of the farm, frequently doing much of the heavy work for long hours on a low wage, while their father continues to hold the purse strings. What is perhaps more instructive here is how the work of daughters can be marginalized or forgotten. At the same time, parents often create expectations through “testamentary promises” that a son may inherit the farm in return for his years of labor. 46 What is striking about the “earlier” farming sons’ cases 47 (prior to 1985) is the lengths to which courts have gone to in order to reward generously a son who has contributed to a farm. The majority of cases prior to 1985 show that provision has been made for a son more out of recognition of the effort he has made to the farm than out of the needs of other children. These cases reflect a conflict between rewarding sons who have worked on farms and providing maintenance for other children. In most cases, this conflict has been resolved in favor of recognition of the farming sons’ contribution over other children’s needs. 48 Other children (i.e., non-farming sons and daughters), who often help on the farm in

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various ways and frequently attend to the nursing needs of invalid parents, 49 may have received promises from their parents of reasonable provision, 50 but only get meager amounts that do not accord with their needs. This was the practical outcome throughout many years of cases, despite the lack of a legally binding general principle that farming sons should receive preferential treatment. The majority of farming cases prior to 1985 show that the conflict between farming continuity and support for other children has generally been resolved in favor of farming sons. In this context sons have been rewarded with the inheritance of the family farm on the strength of their contribution. By contrast, widows frequently received only a life estate; daughters (should they have married well) were regarded as sufficiently provided for, hence relieving the estate of any obligation to support them. In the mid-1980s, courts in Western Australia stated a new approach, which has since been followed by other states. 51 The new emphasis was that there was no general principle that competing interests should be discriminated against to assist the farming son in retaining the property. 52 These more recent cases deal with the general question of farm viability, the relevance of claims that daughters are supported by their husbands and the relevance of gifts made to non-farming children. These decisions give less apparent weight to circumstances (such as contributions, gifts, or the farm being in the family for several generations) and more crucial weight to the question of adequate provisions. 53 Young v Young 54 provides a good example of how these issues might play out. In this case the farm, which had been in the family for three generations, was bequeathed to Gregory, the eldest son. Gregory had worked on the farm since leaving school at fifteen years of age. During this time, he had received minimal wages. At the time of the hearing, he had worked on the farm for thirty-one years. It had been the understanding between Gregory and his mother that he would inherit the farm. The late mother bequeathed the farm to Gregory, while the daughters only received $20,000 (after 10 years) each from the will. The testatrix had developed a strategy whereby the farm would be used as an economic resource: one son was to be assisted in buying another farm, while the girls would be assisted in their education. Eventually, in line with this plan, Gregory would inherit the farm. The two daughters who contested the will had each helped on the farm from time to time. They had also received some financial assistance from the family amounting to $7,000 each. At the time of the hearing, the daughters were married and financially secure, although for a period of years earlier they had been unemployed or in casual jobs. In the Supreme Court of Western Australia, Malcolm CJ considered that the will did constitute adequate provision for the daughters, and he awarded the farm (currently valued at $821,000) to Gregory; the two

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plaintiff daughters received no increase in their legacy of $20,000. In reviewing the case, Malcolm CJ commented: I am satisfied that it was very common in farming families to take the view that it was the moral duty of a testator or testatrix to discriminate between male and female children in certain circumstances. Where the male had forgone wages, worked on the farm and help build it up in the expectation of inheritance and the female children were supported by the family through their education to the point where they were qualified to obtain employment which would enable them to live comfortably and independently of the farm, the moral duty was discharged by the male inheriting the farm. This is such a case. 55

On appeal in the Full Court of Western Australia, Pigeon J gave consideration to the idea that a wise and just testator would give a greater share to a son who had worked on the farm for many years. He concluded that such a testator . . . would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm. This would, a fortiori, be the position if the farm has been in the family for a number of generations. It would still be necessary to make provision for other members of the family. This is often achieved by making provision that there be annuities charged on the farm property. 56

One of the grounds of appeal to the Full Court by the daughters was that to leave them only a legacy but not the farm constituted sexual discrimination. Walsh J said in response to this claim: It is clear from his reasons that his Honour balanced with care the competing moral claims of the children and, in doing so, was very careful to emphasise that discrimination between sons and daughters was not a determinative factor. He did have regard, no doubt, to whether the farm, which had been in the family for three generations, should be kept as an indivisible entity. This, however, was only one of the circumstances which he took into account in his careful assessment of all the relevant factors. 57

The case of Young v Young makes clear that, where a farming son has contributed significantly, he will be allowed to inherit the property as part of the general carve up of the estate, provided that necessary provision has been made for other children. The fact that the farm had been in the family for a number of generations was only one factor a judge should take into account. On one level, cases involving farming sons reflect the backdrop of rural life, such as the decline of country towns, rural depopulation, aging farming populations and a decline in education and health. Another facet of these cases reflects the socialization of children into gender roles that are constructed in hierarchical ways, men being central and women peripheral. 58 One strong theme of these cases is the non-recognition of work

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undertaken by girls on farms in their childhood and, especially in later years, looking after aging parents. 59 At the same time, farming sons get the benefit of numerous tax advantages and drought relief measures, and also have the benefit of farm accommodation. These factors constitute “hidden benefits” that are often not taken into account in will contests. Importantly for the general thesis on farming sons, De Groot and Nickel calculate that, prior to 1985, non-farming applicants only received 9.9 percent of family property in typical judgments. After 1985, non-farm applicants only received 8.89 percent. 60 RECENT CASES ON FARMING SONS By way of conclusion to part one of this chapter, I comment on some very recent cases to qualify the principles referred to above, particularly as regards the idea of special treatment of farming sons. This reconsideration takes place as De Groot and Nickel, in their recent work, suggest that special consideration for farming sons may continue. 61 I note therefore not so much a caveat or correction, but more a clarification to elaborate a distinction between legal principles and actual percentage outcomes as received by respective family members at the conclusion of litigation or mediation. These cases state the principle that farming sons should not get special treatment. However, the share these sons actually receive is notable and worthy of comment, as De Groot and Nickel indicate. This is the case even within the idea of supporting the testamentary intentions of the deceased, as well as taking into account all the discretionary factors laid down by the legislation. In short, the amount an inheriting son usually receives is considerable. For instance, in Moshing 62 the value of the estate was $1.4 million. In the will, one son received 49 percent of the estate and the other received 31.5 percent. One daughter received 10 percent and the other daughter received 8.5 percent. Both sons had worked long and hard on their respective farms. The daughters were both impoverished and without assets. The judge, on hearing these facts, finally apportioned the estate as follows: the farm was awarded to the sons, one receiving 40 percent and the other 25 percent; the daughters received 17.5 percent and 17.5 percent respectively. In Torney v Shalders 63 the deceased left a farm worth $2.7 million to her son. The three daughters received about $108,000 each. The judge awarded the daughters more money so that two received in the revised will $208,000 each, while one received $303,000. The son’s claim was based on having spent the whole of his life working on the farm and his reasonable expectation that he would inherit the farm properties. Also of significance was his low income, his responsibilities to his child and his need to operate all or most of his farms to maintain a regular income.

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Here the judge looked for a creative solution so that part of the total estate did not have to be sold and the daughters would still receive substantial monetary legacies. The court was satisfied that, given the son’s “substantial independent asset position,” he would be able to satisfy a future mortgage without having to subdivide or sell the farm property. Nevertheless, the daughters only received a small interest of the deceased’s assets, amounting to 3 percent each. These recent cases continue to uphold the position that there is no special case to be made that farming sons have a special right to receive the family farm. However, when an evaluation is made, as above, of what farming sons receive in percentage terms as against other claimants, we may reasonably claim this has not been adequately accounted for within the academic literature. 64 This is important because a superficial reading may confuse principles with actual percentage awards made in individual cases. This comment may remind us that there is a distinction between “what judges actually do rather than what they say.” 65 This is consistent with the position taken by legal realists, who long ago asserted in a variety of ways that judges make rather than find the law, and that judicial decision-making is therefore not the rational application of pre-existing rules by previous cases. I expand on this point later when I discuss the discretionary approach of judges and the particular type of “rhetoric” involved in Family Provision cases. SUMMARY OF THE EFFECTS OF RECENT CASES I suggest that the above group of cases makes clear, both in terms of stated principle and actual results, a number of key points. Firstly, there is no general principle that farming sons have a right to inherit the farm to the detriment of claims made by other children. These recent cases demonstrate that there is growing resistance to the judicial tendency to accommodate the strong rural norm that sons should automatically inherit a farm to the detriment of those with competing claims. Secondly, where other children have been provided for, Young v Young makes clear that, in accordance with testamentary freedom, the farming son may receive the greater benefit of the estate, providing that other children have received adequate support. Thirdly, where a property has been in the family for a number of generations and non-farming children have not been adequately provided for, the most compelling view is that the claims of other children should not be allowed to suffer detriment. The fact that the farm has been in the family for a number of generations is, however, (at best) only one of the factors a judge will take into account. 66

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Fourthly, there is a strong Australian rural traditional attitude that widows should be supported and maintained. Such a widow, we might imagine, had borne the testator’s children, lived on the farm with him for many years and helped him through declining health. We must remember that statistically women usually outlive men. 67 However, this rule is not of universal application as it is now conceded that a widow’s claim is dependent on her overall circumstances. 68 Fifthly, it follows from the above (as I expand on later) that judges are showing much less reluctance to make awards that will prevent a farm from being sold. Sixthly, Family Provision legislation is not aimed at restoring equality among descendants. The criteria under the legislation is not to inquire whether a will was fair or why the testator did not divide his property equally. Instead, the main issue revolves around whether the testator has failed in his moral duty to those who had a claim on him. 69 In Murphy v Murphy, King J acknowledged there had been a tendency to argue inequality among the testator’s sons and that in that case the defendant has received more than his fair share of the estate. The judge observed that “this is not the object of part iv proceedings. The Act does not empower the court to make a new will for the testator on the basis of general considerations of fairness.” 70 The Acts have therefore been interpreted to give no license for a court to seek fair or equitable disposition of the deceased’s estate, but instead to ensure an “adequate” or “proper” provision. The language of the various Acts clearly upholds a differential treatment of family members, where that is considered appropriate. 71 However, the changes in the way the Acts are operating in recent times indicates a disparity between such ideas and how rural estates have been divided between family members when it comes to the actual point of distribution. Lastly, daughters are more often deprived of awards because they have married well. A feature of the majority of cases is that married daughters who made applications have been considered sufficiently well maintained and therefore not in need of support because their husbands were doing well in life. This view once again reflects the idea of women as “dependent” on husbands who can be relied on as the primary earner in the relationship. The result, in effect, is that by not providing for daughters the rest of the estate is released to help perpetuate the male line. The best legal view is that now the rule will apply that they have to show need before special consideration will be made for them. 72 It has been suggested that, as regards the balance between farming continuity and support for off-farm children, the pendulum has swung back firmly to the central notion of providing adequate support (maintenance) for all children, rather than rewarding sons for their contributions. 73 Consistent with the principles outlined above, even where a son has been responsible for building up the farm and other children have

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been provided for by way of education, these circumstances will not be weighted in order to deprive those other children of adequate provision. However, this evaluation needs to take into account the actual percentage of the total assets received by such sons, and different audiences may evaluate these percentages in different ways. PART TWO: FAMILY PROVISION JURISPRUDENCE The conventional analysis of Family Provision law does not help us to understand how this legislation operated from an “end users point of view.” 74 I argue that a richer focus is possible with a “longitudinal approach,” which helps us to understand the more traditional style, which has been termed farming as a way of life. By the expression “longitudinal approach” I thus mean an approach that takes account of the fact that three generations may be currently involved in running and living on one property. Extended members of a family who may not be living or working on the land themselves may also have claims to the property. The formulation of “farming as a way of life” reflects notions of the English strict settlement, where property was on trust to the next generation and so the immediate holder had only a custodianship role. 75 I suggest this approach allows us to see these dispute processes as a form of “facilitative law.” 76 I also envisage this approach sees Family Provision law as providing a forum or dispute method procedure for families as regards property matters. Along these lines, Galanter suggests that there are different forms or levels of dispute settlements that exist alongside official systems. He describes a range of ways to solve disputes, which may operate along a continuum from an official system to a private remedy system. One form he sees as an “appended” system, which, although it merges imperceptibly into an official system, does have some subsidiary role that takes place through family negotiations and local power structures. 77 Such an approach to Family Provision legislation coincides with my examination of will contests as a form of dispute that takes into account a wider view of law, other than that represented via a court hearing. Firstly, in Australia, farmers have always been strongly of the view that exploitation and development of farming lands gives ownership rights. 78 As with farmers elsewhere, these people justify land ownership in terms of Lockean notions 79 of exploitation and development, although of course they may have never heard of such theories. 80 Those cases involving farming sons enshrine the idea that those who have worked on the land should be rewarded with inheritance, even to the detriment of off-farm children. At the same time, trust law as regards a life estate for a widow indicates that a life tenant may only receive the income from the estate and that there cannot be a depletion of capital. 81

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Secondly, the cases involving farmers’ sons indicate that, through the law of testamentary freedom, men are left largely free to decide who inherits property. Fellows argues that despite legal reforms 82 legislation has little affected the power relationships between father/son and mother/daughter. 83 West argues in a similar way that under the umbrella of privacy and family autonomy the law creates a “zone of protection” within which rural patriarchal “forces are left intact.” 84 However, are these American views representative of the Australian position and therefore helpful for the present study? Several recent academic studies note the entrenched nature of patriarchy in family farms both in Australia and overseas. These studies reveal several key aspects of family farm succession. Firstly, wives and daughters are frequently not consulted in the succession process and therefore feel sidelined. These reports reveal that fathers frequently do not discuss inheritance issues and therefore children, especially girls, feel they are not “part of the conversation.” 85 A recent survey indicated that parents prefer a son to inherit the property. 86 This study showed that over half (51.6 percent) of respondents reported they had identified a male successor to take over the farm. Only 10 percent of the successors nominated were daughters, while 2 percent were sons-in-law. Recent research further suggests that traditional attitudes deeming farming to be a male concern have not shifted to any large degree. 87 The awarding of family property to sons coincides with a rural distributive ideology that work done by a son on a farm over a series of years should be held in high regard and therefore that a parent should honor a promise that the son should inherit the farm. This legal approach coincides with the rural ethos that “such a son” should inherit the farm: this reinforces the notion that farming is a male activity, as well as the concept that inheritance is not merely a gift but also an exchange of labor for title deeds. A 2013 report on Succession Laws by the Victorian Law Reform Commission (called hereafter “Report”) 88 is helpful, as it gives us a glimpse of the background of such inheritance disputes. The Report repeats criticisms commonly made about the practical working of this legislation. The submissions to the report affirm the strength of male family farmers to retain male forms of inheritance. At the same time, the submissions reveal the converse, that applicant daughters (and perhaps other nonlanded sons) do not regard themselves as receiving a fair share of farming property. This fact of course fortifies the anguish of farming sons. One submission by the Victorian Farmers Federation reflects concerns that testamentary freedom is being restricted as testators cannot “make watertight wills” 89 and that there is a threat to “male property” through an expanded list of applicants. 90 The Federation argues that Family Provision legislation encourages opportunistic claims or “vexatious stabs in the dark” 91 that would in most cases be contrary to the deceased’s

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wishes. Finally, this submission contends that independent children should not be supported and that that there should be a needs test to prove that applicants cannot support themselves. Many submissions complain that the high cost of proceedings is often borne by the estate. 92 Complainants to the Victorian Law Reform Commission on the social background of family farmers help reveal some of the culture surrounding will contests. This includes the insight that the effect of the mediation process means that families settle out of court and therefore the farming son receives less. In this regard, most states now have compulsory mediation procedures. 93 One legal practitioner estimated that 95 percent of Family Provision matters settle out of court. 94 However, settlement may not be based on the merits of a case but on an outcome that is of benefit to all parties. 95 The comment is also made that a high number of claims are settled that would not have succeeded at trial. 96 However, these factors concerning Family Provision dispute settlement, while they reveal a deeper cultural framework, do not alter the fact that farming sons continue to receive a reasonable share of rural property on the death of parents. The son’s claim in Vigilo v Bostin reflects a claim for land made on the basis of a narrative that resonated with a strong strand of rural ideology: that work done should equal reciprocation of title deeds. This form of rhetoric is placed in competition and comparison with other claims. Such rhetoric reflects real-life experience and represents a coherent and authentic claim. We may say that one of the paradoxes of narrative is that it renders a personal experience in legal form, which depersonalizes the account. 97 CONCLUSION: JUDICIAL RECOGNITION OF SOCIAL FACTS ABOUT FAMILY FARMING One issue in socio-legal studies is the extent to which judges recognize social facts inherent within a particular society. In the Family Provision context, judges base their assessment on what a moral testator would have done in such a case. This form of assessment is to be considered in light of the moral needs of a community. 98 What constitutes the reference point for any given community is not clear. 99 The question therefore arises as to what extent the moral views of judges take account of social facts. Some scholars have shown that judges refer to social facts inherent within a case and these findings do play a role in their reasoning. These include social and economic factors, which provide a context for judicial reasons. 100 For instance, Kirby J, 101 using English evidence, 102 utilizes the work of Mason and Finch, who argue that there was no consensus amongst English people about the responsibilities that people have towards their relatives. 103 In the Family Provision context, it is argued that

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judges may not so much formulate a value judgment about a particular situation. Rather, they implement and support a particular form of rhetoric, as discussed below. It may appear then that, should judges refer to social facts consciously or subconsciously, there might be an apparent predictableness, in theory at least, as to the outcome of will contests. Some critics claim outcomes are unpredictable and that law, in the Family Provision area is “right out of hand.” 104 As regards the operation of this area of law, solicitors have often complained about the wide discretionary leeway judges have in making awards. It is therefore difficult for solicitors to provide definitive advice to clients. One solicitor stated that “there may be 50 judges make 50 different decisions and none of them will be wrong.” 105 However, in the majority of farming sons’ cases the results are roughly predicable, as farming sons continue to receive a substantial share of the farm. 106 These cases thus decide not only who owns property; they also divide people and reaffirm particular sets of relationships. While judges may not personally support notions of rural patriarchy, the way cases are resolved usually reinforce a conservative male version of rural family relationships. In her study on routine debtor’s cases Maureen Cain found that, contrary to the rhetoric espoused by judges, the role of the court was not to settle disputes or enforce the law, but instead constantly to restate the law of property in cases brought against recalcitrant debtors. She found in these cases that the court was led continually “to affirm the legal constitution of those relationships which were presented to them by a particular set of users.” 107 In other words, the court performed a socially integrating role by reinforcing social values and ideologies. 108 In a similar way, Family Provision judgments support rural patriarchy by endorsing prevalent rural values. This may be seen to coincide with community support for nuclear families based on rural households and a general endorsement that farming sons should inherit rural property: in other words, that work on property should be exchanged for title deeds. These norms exist alongside a conceptualization of women as a farmer’s helper. This culture exists across generations where men are socialized as the “farmer’s son” and women have little opportunity to inherit property or learn the skills of farming. In this culture daughters have been guided towards being supporters of farmers as men move through the life cycle of “farmer’s son,” “boss farmer” and “retired farmer.” 109 NOTES 1. See a classic collection in Jack Goody, Joan Thirsk and Edward Thompson, eds. Family and Inheritance: Rural Society in Western Europe, 1200–1800 (Cambridge: Cambridge University Press, 1976). Different issues have emerged in rural inheritance

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studies, such as the impact of partible and impartible inheritances on social and economic life, social stratification, inheritance inequality and the exclusion of women from receiving property. 2. Joshua Tate, “Caregiving and the Case for Testamentary Freedom,” SMU Dedman School of Law Research Paper, 2008. 3. Deborah Batts, “I Didn’t Ask to Be Born: The American Law of Disinheritance and a Proposal for Change to a System of Protected Inheritance,” Hastings Law Journal 41 (1990): 1197–269. 4. The other jurisdictions that have these laws are New Zealand, Canada (except Quebec) and England (including England and Northern Ireland). 5. The various acts and ordinances are: Family Provision Act 1969 (ACT); Succession Act 2006 (NSW); Family Provision Act (NT); Succession Act 1981 (Qld); Inheritance (Family Provision) Act 1972 (SA); Testator’s Family Maintenance Act 1912 (Tas.); Administration and Probate Act 1958 (Vic); Inheritance (Family) and Dependents Provision Act 1972 (WA). Dower was abolished in Australia: See Dower Act 1836: 7 WM IV No 8; see in NSW the Real Estate of Intestates Distribution Act 1862, 26 Vic No 20. 6. Standard works include Leonie Englefield, Australian Family Provision Law (Sydney: Thompson and Reuters, 2011); John De Groot and Bruce Nickel, Family Provision in Australia and New Zealand (Sydney: Butterworths, 2012); Rosalind Atherton and Prue Vines, Australian Succession Law: Commentary and Materials (Sydney: Butterworths, 2013); Ken Mackie, Principles of Australian Succession Law (Sydney: LexisNexis, 2013). 7. Englefield, 150–53; De Groot and Nickel, Family Provision in Australia and New Zealand, 60–68; Malcolm Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm,” Australian Journal of Family Law 7 (1993): 191–224; Malcolm Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia,” Sociologia Ruralis 34, no. 1 (1994): 71–83. 8. I use the word “Acts” with a capital letter to refer to all this type of legislation in Australia. 9. Eligible dependents are defined by the respective state and territory laws and ordinances. As regards NSW, see Section 57 of the Succession Act 2006 (NSW). Note that in NSW, the list of eligible claimants has been expanded. 10. Stout CJ in Re Allardice (1910) 29 NZLR 959 at 969. Although the range of applicants has been enlarged since Stout made this comment, the thrust of the comment is still true as to the overall limit of the discretion. 11. Barns v Barns (2003) 214 CLR 169 per Gleason J. 12. Gino Dal Pont and Ken Mackie, Law of Succession (Sydney: LexisNexis, 2013), 491. 13. For the history of the legislation in New Zealand, see Virginia Grainer, “Is Family Protection a Question of Moral Duty?” Victoria University Law Review 24 (1994): 141–62; Rosalind Atherton, “New Zealand’s Testators’ Family Maintenance Act of 1900—The Stouts, the Women’s Movement and Political Compromise,” Otago University Law Review 7, no. 2 (1990): 202–29; Rosalind Atherton, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right,” Australian Journal of Law and Society 6 (1990): 97–129. 14. Grainer, “Is Family Protection a Question of Moral Duty?” 15. Widows and Young Children Maintenance Act, 1906 (Vic). 16. NSWPD 1903: 2921 and 2927. 17. NSWPD 1905: 2889. 18. Atherton, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right,” 56. 19. Atherton, 56. 20. Prior to 2004, Croucher was known as Atherton. 21. Gregory Alexander, “The Social-Obligation Norm in American Property Law,” Cornell Law Review 94 (2009): 745–819; Gregory Alexander, “Governance Property,” University of Pennsylvania Law Review 161, no. 7 (2012): 1853–87.

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22. At the turn of the nineteenth century, following growing agitation for change in the position of women and a shift from the strictness of laissez faire with the growth of the belief that the state should enter the private realm to protect weaker members; Richard Bellamy, Victorian Liberalism: Nineteenth-century political thought and practice (London: Routledge, 1990), 10–11. 23. In the Australian Parliamentary debates and in the reports of Magistrates Courts, it was commonly claimed that “there was a solemn obligation resting upon a parent to provide for children, and for the children to relieve the necessity of the parent.” It was argued by one speaker that to interfere with that obligation was “to seriously undermine the moral fibre of the community” (Claire Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare Melbourne: Australian Scholarly Publishing, 2002, 11–12). On how marriage was seen as an “economic partnership,” see New South Wales Parliamentary Debates 1905: 2887, 2889. 24. Bryant v Bryant, SC, NSW 24th July 1986 (1481/1986) per J Needham at p 8, and see Worthington v Dickson, SC, WA, FC 1st June 1984 (1928/1982). 25. In New Zealand, the legislation is called The Family Provision Act 1955. 26. Nicola Peart, “The Direction of the Family Protection Act 1955,” New Zealand Recent Law Review 10 (1994): 193–217; Nicola Peart, “Awards for Children Under Family Protection,” Butterworths Family Law Journal 244 (1995): 44–250; Nicola Peart, “New Zealand Report on New Developments in Succession Law,” Electronic Journal of Comparative Law 14, no. 2 (2010): 1–23. 27. Rosalind Croucher, “Conflicting Narratives in Succession Law—A Review of Recent Cases,” Australian Property Law Journal 14 (2007): 180. 28. Myles McGregor-Lowndes and Frances Hannah, “Reforming Australian Inheritance Law: Tyrannical Testators vs. Greying Heirs?” Australian Property Law Journal 17 (2009): 1–24. 29. Gino Dal Pont and Ken Mackie, 561. 30. See Succession Act 2006 (NSW) s.60. 31. See Administration and Probate Act 1956 (Vict) s91 (1). This “status-based” approach is said to contrast with the so-called “criteria-based” approach as in New South Wales. Section 91(4) of the Victorian Act also contains a substantial number of factors of which the court should take notice. Note the Victorian Law Reform Commission Report 2013 recommended in recommendation 38 that the state move to a test based on the New South Wales model. 32. Dal Pont and Mackie 2013: 491 33. Atherton and Vines, Australian Succession Law: Commentary and Materials, 513. 34. Allardice v. Allardice (1910) 29NZLR 959, at 972–73 per Edwards J. 35. Schmidt v Watkins [2002] VSC 273 at 16 per Harper J. 36. Carey v Robson (No 2) NSWSCSC 1199 per Palmer J at 11. 37. Vigilo v Bostin (2005) CLR 191 per Gleeson J. at 25; Dal Pont and Mackie, Law of Succession, 563–67. 38. Lee v Hearn [2005] VSC 113, 24. 39. Dal Pont and Mackie, Law of Succession, 566. 40. Dal Pont and Mackie, 492. 41. Dal Pont and Mackie, 492. 42. Gorton v Parks (1989)17 NSWLR 1. 43. Gorton v Parks at 10–11. See Atherton and Vines, Australian Succession Law: Commentary and Materials, 613–14. 44. Denis Galligan, Discretionary Powers: A Study of Official Discretion (Oxford: Clarendon, 1991), 18. 45. Under the Family Provision legislation, the court may take into account, any provision made for an applicant during his/her lifetime. Thus, any benefits such as education or equipping for life are thus considered (Ian Hardingham, Marcia Neave and Ian Ford, Wills and Intestacy in Australia and New Zealand [Sydney: Law Book Company, 1989], 496).

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46. See Giumelli and Another v Giumelli [1999] 196 CLR 101; Bridgewater & Others v Leahy & Others (1998) 194; Ashton v Pratt (No 2) [2012] NSWSC 3. For the treatment of a recent testamentary promise about a farming son, see Vigilo v Bostin [2005] 221 CLR 191 and Malcolm Voyce, “Vigilo v. Bostin: Family Provision and Farming Sons,” Retirement and Estate Planning Bulletin 10 (2005): 149–53. 47. These cases are described by Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm,” 191–224. 48. I suggest it is a trend of the courts to recognize the male contribution, as generally there are few (if any) cases where a daughter has taken sole charge of a farm for a sequence of years. 49. Young v Young SC of WA, 26th April 1989 (1139/1983) and appeal to FC 3rd April (64/1989). 50. Wadley v Younger SC of Vic 10th October 1984, (5893/1981); McCallum v McCallum SC of NSW 2nd May 1986 (4601 of 1983); Vigilo v. Bostin [2005] 221 CLR 191; Voyce, “Vigilo v. Bostin: Family Provision and Farming Sons.” 51. De Groot and Nickel says, to the contrary, that these cases were just exceptional or not typical. See De Groot and Nickel, Family Provision in Australia and New Zealand, 65. 52. Two recent cases make it clear that there are no distinctions based on gender. Johnston v McCallum [2005] NSWSC 17 per Master Macready J. at p. 61, makes clear that where the needs of a claimant outweigh the needs of those due to inherit the farm, the Court was prepared to make an order requiring the sale of the family farm. Likewise, in Popovski v Kenjar; Hafizovic & Anor v Kenjar, Hallen J. commented that there is “no distinction based on gender” [2011] NSWSC per Hallen J. at p 71. 53. For a recent reported case in Western Australia with this latter emphasis, see Malcolm CJ in Bondelmonte v Blanckensee (1989) WAR 305 at p 307. For decisions in NSW which give emphasis to support, rather than other factors, see Hunter v Hunter (1987) 8 NSWLR 573, at p 575 per Kirby J and Gorton v Parks (1989)17 NSWLR 1. 54. Young v Young SC of WA, 26th April 1989 (1139/1983) and appeal to FC 3rd April (64/1989). 55. Young v Young, 32 (my emphasis), in the Full Court. 56. Young v Young, 6 (my emphasis), in the Full Court. 57. Young v Young, 26–27, in the Full Court. 58. Ruth Leipen, “Making Men: The Construction and Representation of Agriculture-Based Masculinities in Australia and New Zealand,” Rural Sociology 65, no. 4 (2000): 605–20. 59. These features of rural life have been well reported by Alston; see Margaret Alston, “Farm Women and Their Work: Why is it not Recognised?” Journal of Sociology 34, no. 1 (1998): 23–34; Margaret Alston, Breaking through the Grass Ceiling: Women, Power and Leadership in Rural Australia (Amsterdam: Academic Publishers, 2000); Margaret Alston, “Who is Down on the Farm? Social Aspects of Australian Agriculture in the 21st Century,” Agriculture and Human Values 21 (2004): 37–46; Margaret Alston, “You Don’t Want to be a Check-Out Chick All Your Life: The Out Migration of Young People from Australia’s Small Rural Towns,” Australian Journal of Social Issues 39, no. 3 (2004): 299–313; Margaret Alston, “Gender Perspectives in Australian Rural Communities,” in Sustainability and Change in Rural Australia, ed. C. Cocklin and J. Dibden (Sydney: University of New South Wales Press, 2005), 139–56; Ian Gray and Geoffrey Lawrence, A Future for Regional Australia: Escaping Global Misfortune (Cambridge: Cambridge University Press, 2001). An important study on the socialization into gender roles is Scharz, 2004. 60. De Groot and Nickel, Family Provision in Australia and New Zealand. 61. De Groot and Nickel, 66. 62. Moshing [2003] VSC 498. 63. Torney & Ors v Shalders & Anor [2009] VSC 268.

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64. An exception is De Groot and Nickel, Family Provision in Australia and New Zealand, who very usefully show percentages on the awards made to the various classes of applicants. 65. Justice Holmes said that “the prophecies of what the courts will do in fact and nothing more pretentious are what I mean by law,” Roscoe Pound, Jurisprudence (St Paul: West Publishing Co, 1959), 460–61. In the light of the argument in this work as regards “rhetoric,” see Maneli 1994, 95–108 and his treatment of American sociological jurisprudence such as Holmes and Pound. 66. Young v Young SC of WA, 26th April 1989 (1139/1983) and appeal to FC 3rd April (64/1989). 67. De Groot and Nickel, Family Provision in Australia and New Zealand, 88–92; Dal Pont and Mackie, Law of Succession, 579–84. 68. De Groot and Nickel, 90. 69. See the comments in Gorton v Parks (1989)17 NSWLR 1. 6–7 per Bryson J. 70. Murphy v Murphy, unreported, SC of Victoria, 16 October 1986 (13 and 14/1985) at 12. 71. Dal Pont and Mackie 2013: 493–94. 72. De Groot and Nickel, Family Provision in Australia and New Zealand, 165. 73. Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm.” 74. As I later argue, there is very little work on Family Provision that has a strong theoretical approach and this is especially the case as regards rural properties. 75. For sentiments along these lines see Submission of the Family Law Council to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (1992) Vol 30: 76–77. Commonwealth of Australia AGPS, Canberra. 76. I am grateful to Rubin and Sugerman whose idea I have slightly adapted; see Gerry Rubin and David Sugerman, Law, Economy and Society 1750–1914: Essays in the History of English Law (Oxford: Professional Books, 1984), 9–10. 77. Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9 (1974): 123–30. 78. Farmers over time have shown a variety of views over land. For instance, on the history of “squatting” of great areas of grazing land in Australia and how graziers claimed occupation itself created a form of tenure, see Stephen Roberts, History of Australian Land Settlement, 1788–1920, (South Melbourne: Macmillan, 1968). As regards “closer settlements,” see Neil Barr, The House on the Hill: The Transformation of Australia’s Farming Communities Land and Water (Canberra: Halstead Press, 2009). See generally Nicola Graham, Lawscape: Property, Environment and Law (Oxford: Routledge, 2011). 79. See John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1963). 80. On Locke, see Neal Wood, John Locke and Agrarian Capitalism (Berkeley: University of California Press, 1984). 81. Malcolm Voyce, “Governing from a Distance: The Significance of the Capital Income Distinction in Trusts,” in Feminist Perspectives on Equity and Trusts, ed. S. Scott Hunt and H. Lim (London: Cavendish, 2001), 153–77. 82. Such as Family Provision legislation or the Family Law Act 1975 (Cth). 83. Mary L. Fellows, “Wills and Trusts: The Kingdom of the Fathers,” Law and Inequality 10 (1991): 137–62. 84. Robin West, “Feminism, Critical Social Theory and Law,” University of Chicago Legal Forum 1989, no. 1 (1989): 59–88. 85. Judith Crockett, “The Nature of Farm Succession in Three New South Wales Communities,” Australian Farm Business Management Journal 1, no. 1 (2004): 14–27; Dennis Gamble et al., “Transfer of the Family Farm Business in a Changing Rural Society,” Rural Industries Research and Development Corporation, Research Paper 95/8, 1995; Diane Luhrs, “Consider the Daughters; They are Important to Family Farms and

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Rural Communities Too: Family-Farm Succession,” Gender, Place & Culture 23, no. 8 (2015): 1078–92. 86. Elaine Barclay, Ian Reeve and Ros Foskey, “Australian Farmers’ Attitudes Towards Inheritance and Succession,” in Keeping it in the Family: International Perspectives on Succession and Retirement on Family Farms, ed. M. Lobley, J. Baker, and I. Whitehead (Farnham, Burlington: Ashgate Publishing, 2012). 87. This is a well-researched topic amongst rural sociologists in Australia, who have indicated that there is a shift in the position of women in agriculture, typified by a trend for women to take up outside employment and to own their own farms. At the same time, more children are taking up tertiary education and there is a greater diversity in business structures. Evidence suggests this shift may not have affected rural patriarchy as regards the devolution of family property; see Alston, “Farm Women and Their Work: Why is it not Recognised?” 23–34; Alston, Breaking through the Grass Ceiling: Women, Power and Leadership in Rural Australia; Alston, “Who is Down on the Farm? Social Aspects of Australian Agriculture in the 21st Century,” 37–46; Alston, “You Don’t Want to be a Check-Out Chick All Your Life: The Out Migration of Young People from Australia’s Small Rural Towns,” 299–313; Lia Bryant and Barbara Pini, Gender and Rurality. New York: Routledge, 2011; Pini, Barbara. “Farm Women: Driving Tractors and Negotiating Gender.” International Journal of Sociology of Agriculture and Food 13, no. 1 (2005): 1–18; Barbara Pini and Sally Shortall, “Gender Equality in Agriculture: Examining State Intervention in Australia and Northern Ireland,” Social Policy & Society 5, no. 2 (2006): 199–206. 88. Victorian Law Reform Commission, Succession Laws Consultation Paper, Number 12, Melbourne, 2012. http://www.lawreform.vic.gov.au/sites/default/files/Succession%20Laws_Consultation%20Paper_Family%20Provision.pdf 89. Victorian Law Reform Commission, see submission by Victorian Farmers Federation. 90. Victorian Law Reform Commission, Consultation Paper 25. 91. Victorian Law Reform Commission, see submission by the Victorian Farmers Federation. 92. Victorian Law Reform Commission Report. 93. See Succession Act (NSW) S.98. 94. Victorian Law Reform Commission, the Supreme Court in Victoria, reports in their annual report that of the 65 mediations in 2011–12, 59 were settled. 95. Victorian Law Reform Commission Report 100, 125. 96. Victorian Law Reform Commission Report 2013: 99. A major complaint is made about costs which come out of the value of the estate; see Ines Kallweit, “Costs Issues in Family Provision Applications,” Retirement & Estate Planning Bulletin 99 (2011–12); Prue Vines, “Bleak House Revisited? Disproportionality in Family Provision Estate Litigation in New South Wales and Victoria,” Australasian Institute of Judicial Administration Incorporated, 2001, https://www.researchgate.net/publication/271769870 _Bleak_House_Revisited_Disproportionality_in_Family_Provision_Estate_Litigation_ in_New_South_Wales_and_Victoria 97. Justi Richland, Arguing with Tradition: The Language of Law in Hopi Tribal Court (Chicago: University of Chicago Press, 2008), 121, 142. 98. De Groot and Nickel, Family Provision in Australia and New Zealand, 14. 99. See for instance Ridge who argues the moral community test is potentially offensive to testators who do not conform to societal norms, Pauline Ridge, “Moral Duty, Religious Faith and the Regulation of Testation,” University of New South Wales Law Journal 28, no. 3 (2005): 720–39. 100. See Kylie Burns’s study of negligence cases in Kylie Burns, “The Australian High Court and Social Facts: A Content Analysis Study,” Federal Law Review 40 (2012): 317–48. 101. Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24.

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102. Janet Finch and Jennifer Mason, “Obligations of Kinship in Contemporary Britain: Is There Normative Agreement?” British Journal of Sociology 42, no. 3 (1991): 345–67. 103. Kirby in Permanent Trustee also noted in this case that social ideas concerning the status of women, increased longevity, changes in the needs and concepts of wealth, and changes to attitudes towards testamentary freedom and notions of parental control were now outdated. Another example of judges using sociological findings was in Gill and SDFaCs [1999] AATA 452, where the judge adopted the sociologist Anthony Giddens and his ideas on the changing nature of relationships in families and the significance of marriage. The Tribunal noted how Giddens had commented that the idea of “relationships” was rather new. “Only 30 years or so ago, no one spoke of a relationship. Marriage at that time was the commitment. . . . However, marriage is no longer the chief defining basis of coupledom.” After citing this opinion of Giddens, the Tribunal in Gill commented that the Social Security Act endeavors to reflect the basis of the historical change reflected in the nature of marriage. See Malcolm Voyce, “Property, The Governmentalisation of the State and the Working of Power in Rural Australia,” Journal of Historical Sociology, Issues and Agendas 21, 2, no. 3 (2008): 331–54. 104. Croucher, “Conflicting Narratives in Succession Law—A Review of Recent Cases,” 179–200. 105. Victorian Law Reform Commission, 102. 106. I have previously referred to the figures, which in a summary form note that since 1985, farm applicants only received about 9 percent of the farm property; see De Groot and Nickel, Family Provision in Australia and New Zealand, 66. 107. Maureen Cain, “Where are the Disputes? A Study of a First Instance Court in the UK,” in Disputes in the Law, ed. Maureen Cain and Kalman Kulcsar Kiako (Budapest Press, Budapest, 1983), 131. 108. Richard Ingleby and R. Johnstone, “Judicial Discretion Making,” in Thinking About the Law: Perspectives on the History, Philosophy and Sociology of Law, ed. Rosemary Hunter, Richard Ingleby and Richard Johnstone (Sydney: Allen and Unwin, 1995), 184. 109. Linda Price, “Rural Support Networks in the UK and Canada: The Influence of the Patrilineal Culture of Family Farming,” Queen’s University Belfast, Working Paper No. 3, July 2011.

SEVEN Property, the Formation of the Pioneer State, and the Working of Power in Rural Australia

Scholars who have studied the founding of new societies have observed how settlers transported their ways of understanding to the new world. 1 In the case of Australia, settlers took English forms of law with them, as well as conceptions of land tenure, family structure and inheritance. Powell argues that white European settlers attempted to reproduce and re-create “little Englands in Australia” through the implantation of flora, fauna and land tenure practices. 2 With the introduction of European culture came the technologies of government, with its ability to structure the untamed land and render it legible and productive of certain truths. 3 Here I refer to systems of notation and calculation, such as surveying techniques, mapping, the taxonomies of legal thought and accountancy practices. One of the most intriguing aspects of this attempt to transfer idealized social ideas in the settlement of Australia was the way settlers reproduced English ideas of property and ownership. One element of this “settler capitalism” interests me here, namely the role of property ownership and particularly the importance of male patriarchy on family farms. One of the tasks of this book has been to analyze the intersection of property law and family, and the role that played in State formation. I am especially interested in the formation of interlocking rural networks and the uniformity of views as to property held by people living in those communities. On the journey out from the “old country” the colonists must have reflected on their own interior “landscape” concerning property—from the conception of land based on local knowledge and memory to the 135

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measure of land based on the cartographic representation of boundaries. 4 These sensibilities about property reflected the capitalist tradition of England and the associated transformation of economic relationships in the English countryside, with the expropriation of small holders, the denial of subsistence rights and the spread of large commercial farming that reduced the agricultural laborer to poverty. Much of the surplus rural population would have idealized their lost rural past as they moved into oppressive cities. 5 Most of the settlers’ views were shaped by the ideas of freedom that they believed land ownership would entail. 6 Inherent in this belief must have been one notion central to the Enlightenment: the dominion of man over nature. In later notions of the physical world, nature was seen as separate from culture and subject to improvement. In the context of “agricultural improvement,” it was thought land could be exploited more efficiently through labor and appropriate animal husbandry. Land not improved was effectively wasted. In this process nature became both dephysicalized and denatured. 7 I call these popular assumptions about property “sensibilities” as opposed to customs because, although these ideas derived from English practice, they lacked that element of communal enforcement that is considered a vital element of custom. However, contained within these sensibilities, I speculate that there were notions of respect for others who owned “property”—particularly a sense that property was best held in trust for family members. At the same time, property was seen as a form of social duty, in that it was to be preserved down the generations. 8 Finally, there probably existed moral and ecological values that property, similarly to flora and fauna, should not be devalued. These notions stood out against the opposing tenets of individualism and capitalism. In Australia, these sensibilities were shaped by state governments anxious to settle land and provide security of tenure based on rural capitalism. The greatest problem facing successive state governments was to provide this security of tenure and therefore ensure the orderly progression of settlement. The notion of property as a technical device 9 endorsed the security of banks that wanted long distance control over their investments. At the same time, the device of property allowed sufficient freedom for owners to develop their properties as they saw fit. Two questions arise from all this: how important was the ideology of family property in state formation, and how did ideas of property reinforce local power networks? THE DEVELOPMENT OF THE STATE “WITHOUT A HEAD”? The modern State has been shown to have emerged in the fifteenth and sixteenth centuries, and became more firmly grounded in the seventeenth

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century. 10 It came into existence in the same time frame and geographical conditions that provided the basis of modern capitalism, science and philosophy. 11 Two aspects of this historical account are relevant here: the development of the concept of jurisdiction and the notion that subjects who occupied property were the bearer of legal rights within a uniform spatial jurisdiction. 12 The approach taken by Marxist theorists is to argue that the State is a form of organized coercion orchestrated by an elite. 13 In the Australian context, for instance, McMichael and Wells have shown that the State reflected class or capital interests. 14 In a similar way, McQueen has argued that it was conquistador, racist or masculinist in nature. 15 I am not concerned with this Marxist approach. My task is to explain, in a genealogical sense, the formation of the State within the tradition of the “sociology of the State.” 16 I take my cue here from Foucault: when we analyze State power we should base our study on an analysis of power, as well as the techniques and tactics of domination. 17 In studying power, we should therefore, as Foucault famously remarked, “cut off the head of the king.” 18 I am not so much interested in the structural State, which I take to mean the formal institution of the State as a “castle upon the hill.” I acknowledge that the structural State contains the elected government, the administrative departments and the judiciary. However, I am primarily interested in power outside of the structural State. I therefore focus on local interests and interlocking networks of localized power to further my arguments on rural inheritance. I intend to describe those institutions and forms of power beyond the centralized State and show how the State behaved in everyday practice. 19 Such instances are those emphasized by Giddens as regards the way power acts in temporal and spatial aspects, particularly systems of information gathering, surveillance, discipline and supervision. 20 This approach suggests that it is necessary to show how the rationality of such administrative practices (involving conceptions of property, family and law) are assembled in a genealogical sense. To the extent that I am interested in the structural State, I wish to show the flow-back effect of local interests onto the structural State, and therefore to show how the State became “governmentalized” by local interests. I refer to this practice as the “governmentalization of the State” 21 and explain what I mean by this term in due course. This approach helps to explain the institution of family property and how the nodules of power around male patriarchy were reflected in the culture of the State, as well as through the State’s administrative apparatuses of power. Through an explanation of the role of “family” and “property,” I will be able to show how different discourses and techniques about rural life received endorsement and support within both legal and non-legal forms of power. I assume, consistent with my ap-

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proach to the “structural state,” that the word “State” means those forms of interlocking discourse that eventually came to governmentalize society and indeed “governmentalize” the structural State itself. To develop my argument I do several things. Firstly, I show the importance of the concept of “family” in State policy and how that was imbedded in ideas of property. Secondly, I highlight the role of economics as a form of governance. Economics, I argue, formed a discipline of productivity through which the family governed the individual and the State governed the family. Thirdly, I show how property, the family and economics were linked within other administrative agencies involved in the “governmentalization of society.” 22 By this expression I mean the processes and procedures by which forms of government become decentered: activities may be carried out at the periphery or by analogous institutions that direct power in a manner different to the central State. 23 In this formulation, “the State” includes the entire complex of institutions and practices through which power relations are mediated to ensure the cultural hegemony of a social group. This approach therefore abolishes the distinction between the State and civil society. 24 FAMILY, PROPERTY AND THE COLONIAL STATE Australian settlement, after the convict period, was based around family farms: farming was seen as essential to the development of the economy. Such policies aimed to support the nuclear family and the traditional sexual division of labor, to improve moral values, and to provide employment. 25 The question now arises, “what was the role of the family farm in State formation?” Marxist scholarship argues that the family is a subordinate partner to the State because the latter regulated and controlled the former in order to ensure the production of labor for the capitalist class. 26 I expand on this critique in a less functionalist fashion to argue that the family, collectively and individually, forms a nodule point in a web of social practices that operated both in and around that social group. There are two aspects of this claim that need expanding. Firstly, that the family was part of a self-policing society. 27 For instance, Hirst explains that problems of rural settlement in New South Wales could be solved by “more marriages” as this “would create new centers of order and responsibility: wives would obey their husbands and husbands would provide for children.” 28 In short, the “family is both the outcome of disciplinary society, and a disciplinary force itself.” 29 Secondly, the State endorsed the notion of property within the specific form of the family farm. I assume that property in the farming context is a “socio-technical arrangement.” 30 This arrangement came into existence largely through State policy of allocation of land to individual families. I

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make this claim because the “family farm” combines notions of kinship and residence along with labor. Secondly, the farm allotment was underpinned by the technicalities of the conveyancing system that rested on surveying and mapping. As a result, law was deeply imbricated in the overall organization of rural society. At the same time, law was productive or generative of the subjectivity of the nation-state. 31 “Property,” seen in this fashion, allowed the State to connect and manipulate agrarian ideals and hence promote rural settlement in its various schemes of closer settlement. Part of the broad ideal of agrarianism was the notion of self-sufficient farmers (or yeomen) and owners of the soil. In this context, the State ruled through the freedom of farmers by invoking ideas of independence and autonomy. THE ROLE OF ECONOMICS AND GOVERNANCE The transplanted English idea of property did not exist in a vacuum, but depended on the infrastructural and administrative support of the State, as well as the construction of a market in which laissez faire doctrines were supported. 32 These doctrines were not neutral but reflected the specific objectives of the State for the settlement of Australia. The economy, as a recent invention, provided an ideal way of governing that creation. 33 Australia was settled through the notion of personal ownership of land and the creation of a bourgeois political economy. 34 Early land grants and trade established the basis for a market. It was clear by the 1850s that British business experienced the necessity of controlling their concerns over great distances. 35 To effect this need there was general support for free trade and the adoption of radical land policies based on individual ownership and the necessity of “governing from a distance.” 36 As Rose and others 37 have argued, “governing from a distance” occurs through fidelity devices, 38 which allow consistency of administrative decisions to be obtained over distance. 39 I thus argue that the family farm, seen as a socio-technical arrangement, provided a nodule of local power to enable governance from a distance. In the Australian colony by the turn of the nineteenth century a range of scientific insights had become incorporated within economic ideas, such as those found in statistics, 40 penology, accountancy 41 and demography. 42 The development of these sciences and the idea of the economy itself 43 clarified the notion that to survive as an economic unit in the market, families must be efficient in the allocation of labor within the family. A “good family economy” thus had to eliminate wastage caused by idleness, drunkenness or dissipation of assets through inappropriate bequests. 44 From the beginning of settlement, it was government policy that farmers should be self-sufficient. 45 At the same time, economic and religious

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forces produced a domestic ideology of a “more domesticated orderly life style.” 46 Prescriptive norms also dictated that the family subscribe to educational and medical assistance in order to form a proper building block of society. 47 From the 1930s women became subject to what has been called the efficiency movement. This campaign, led by doctors and social workers, aimed to modernize the family by introducing “efficiency” into the household and to transform child-rearing practices. 48 Deacon claims that the demeaning stereotyping attitudes of “efficiency experts” affected women’s employment chances, mainly through the inference that women were “silly unskilled creatures.” As a consequence, this increased the perception that female wage earners were basically secondrate workers. Thus, by insisting on motherhood as a full-time occupation, publicists of the infant welfare movement attempted to coerce women into their “proper role of wife and motherhood.” 49 Few Australian scholars have attempted to trace the results of the efficiency movement in rural areas. However, Lake has shown the results of the movement on dairy farms during the soldier settlement period. In the words of one reviewer, she tells how forgotten and neglected women and children face a bureaucracy intent on enforcing its own efficiency. 50 Lake shows how the medical profession was called in to legitimatize women’s withdrawal of labor from the workforce. Medical authority, according to Lake, was invoked by wives against the authority of their husbands, who thus faced an alliance between their wives and doctors. 51 Since the mid-eighteenth century, the State had a new “calculative life” for the farming family as successive governments sought to manipulate, guide 52 or govern the farmer through the concept of autonomy within a range of agrarian sensibilities. With the creation of the economy, the State could rule through rather than of the economy. 53 THE DEVELOPMENT OF LOCAL NETWORKS Scholars have adopted several different approaches to State formation. 54 My approach, as indicated, is to concentrate on what I call the “culture of the State” to show how nodules of power articulate each other. I seek to explain how local networks form “interlocking arrangements with the structural state.” To achieve this, I utilize the notion of the “governmentalization of the State.” In terms of the work done by Corrigan and Sayer, the narrative of the State resulted in a particular cultural form and, concurrently, the culture of the State was constituted within such a form. Corrigan and Sayer thus sought to explain the formation of the English State along the lines that moral formation was coextensive with State formation. 55 While I follow this “culturalist” approach to the State I do so with certain reservations. Firstly, my argument about the formation of the cultural State incorpo-

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rates the idea that the State adopts and incorporates farming property as a socio-technical arrangement. Part of this argument is that law provided certainty in land dealing. 56 Secondly, the thesis concerning the cultural form of the State neglects to show how forms of subjectivity are linked to disciplinary powers and procedures, which train and utilize bodies and their capacities. Corrigan and Sayer tend to emphasize the unity of the State and the centrality of its forms of power. 57 My approach, by contrast, seeks to emphasize the fragmentary nature of rural power and the possibility of resistance. This approach based on moral regulation (taking into account my reservations) means that the State, in its “cultural form,” incorporates notions of economic productivity and domestic ideology. The question then arises, “how is the social order composed out of a system where power is dispersed?” I take my cue from Kalpagam, who argues that colonial power is constructed within the domain of society itself. Writing about the Indian situation, she argues that the instrumentalities of rule— including the authority of economic discourse, the press, public opinion, the judiciary, and private property rights based on a sexual division of labor—all supported the notion of rights-bearing subjects. Colonial governmentality operated by the identification of interests among subjects with those of the State. As a result, there was “transcendence from particular local interests to general and supra-local interest.” 58 The approach I develop describes how the notion of sovereignty comes to be articulated through farming populations and the economic and scientific processes that constitute them. 59 It describes the way power acts in rural Australia to secure a form of rule through a multiplicity of agencies and authorities “outside” the structural State at a variety of levels. My account therefore seeks to establish how, in the words of Foucault, the “State consists in the codification of a whole number of power relations which render its functioning possible.” 60 Foucault’s ideas on the decentering of sovereign power and the importance of the microphysics of power help us to concentrate on the very institutions in which power operates. Where power is localized, I seek to know how and to what effect relays of power implicate the family. My task then is to determine how these various circulating discourses actually work in rural society. This then leads me to explain how property and the family are implicated in the general culture of the State. Scholars frequently theorize about the formation of the State and society through an analysis of how power acts at a local level. 61 Foucault’s conception of power and how it was exercised affronted earlier conceptions of power because it challenged the notion that power is primarily for the repressive maintenance and reproduction of economic relations. 62 Foucault argued that power is neither necessarily centralized nor primarily repressive, but instead a relationship between actors that produces knowledge and truths that leads to discourses that disseminate those

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truths. 63 In the Foucauldian worldview, relations of power and knowledge are articulated through discourse, which is both a language and a practice that brings into existence an object of knowledge. In the process of State formation in Australia, it was necessary for administrators to overcome the problem of distance because face-to-face encounters with subjects was not possible. The basis of the structural State was conceived to rest on the idea of a “Weberian bureaucracy” where, in administrative matters, all subjects were supposed to be treated consistently. 64 However, this explanation is inadequate when it comes to explaining how semi-autonomous and autonomous bodies function beyond state influence. Despite this autonomy such institutions often act out state policies. A good example of this process is the efforts made by financial institutions to encourage and secure overseas investment through reliable forms of law and accounting. 65 My interest is in the way different organs of power and the discourses that circulated through such institutions utilized a form of discourse that enshrines “fidelity devices.” Examples of fidelity devices, as I have shown, are ideas of trust accounting (capital/income), “contributions” in divorce and Family Provision cases, and the notion of “positive waste.” 66 These are all instances of devices or concepts that enabled calibrations to be made concerning a particular human attribute that pertained to economic productivity. These devices made it possible for mobility and confidence to be obtained over distance. 67 Fidelity emerges when assemblages of heterogeneous elements are utilized, such as legal taxonomies and accounting procedures; these enable previously unreliable actions to be prescribed as regular and observable. 68 While consistent administrative action could be achieved over distance through such fidelity devices, another important factor achieved a similar result. Here I refer to patriarchal power relations within family life and how they “meshed together,” or were supported by a set of institutions connected to the farming context, for instance, the court structures, the legal profession, and welfare institutions. I discern several types of discourse, each associated with different discursive “fields.” While several discursive fields penetrate and connect with family life, the focus of this chapter is the link between the legal and economic fields. EXAMPLES OF “FIDELITY DEVICES” AND THE “MESHING” OF DISCOURSES Different scholars have described the processes where discourses combine in various ways. Dean refers to the manner in which discourses “fold together.” 69 Hunt and Wickham refer to the process where discourses have “mutual articulation and interaction.” 70 To capture more fully the meaning of these expressions I use the phrase “meshing of dis-

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courses” to indicate the way that forms of communication interlock with each other to form a grid of power. I argue that different discourses articulate and mesh with different “fields.” The relationships between different people, their experiences and the positions that they occupy all comprise social and cultural “fields.” We can delineate education, politics, economics, science or law in this fashion: each operates in a particular way and lays down rules and procedures, roles and positions, and therefore the behavior expected of participants. 71 I now describe the legal field and show how it articulates with the economic field. THE LEGAL FIELD AND ECONOMICS Property ownership on farms was organized via a variety of legal structures. I give examples here to show how the articulation of economic values was refracted by local power nodules that were based on the legal ownership of property. Frequently farmers organized their estates through holding property in trusts. These instruments enabled retiring parents to settle property on a son as a beneficiary, and therefore allowed the parents to keep some control of the situation, should the son act in an irresponsible manner. In other circumstances, a life estate was useful as it preserved the property for the farming son, while providing funds for the widow during the rest of her life. Usually the men of the family were involved in the construction of these legal structures in consultation with a solicitor or accountant. While the trust device may be seen to be neutral, these professionals normally prioritized and implemented the male needs of the family. In the case of life tenants, these professionals usually structured the estate so the life tenants’ contributions (usually a widow) were minimized to ensure the betterment of the farm for the remainderman (usually the farming son). Girbich describes how family trusts operated through the positioning of the male as the trustee and how, in this capacity, male trustees could best influence the accountant handling the family trust. 72 The trustee makes his or her decision utilizing economic and legal considerations in dividing receipts into either capital (for retention) or income (for the life tenant). Another example of the meshing of legal and economic fields occurs in the instance of divorce property settlements and Family Provision cases. Patriarchal family structures meshed with certain economic discourses: in many cases large awards were made to male farmers, usually to the detriment of their wives. 73 An assessment of the contributions in such cases rests on economic formulations as to the value of the property in dispute, as well as the relative earning capacities of the parties. These evaluations were not neutral but the products of eighteenth-century eco-

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nomic discourse, which incorporated sexist understandings about the productivity of women. Here I approach economics from the perspective that strongly held Victorian values played a major role in shaping the neoclassical views of women and women’s issues. 74 According to these views, women should be economically dependent on a husband or father: their primary role in society was as mothers and housewives, not as economic agents. 75 These cases involving divorce and Family Provision may be read on two levels. Initially, they appear to be a straightforward description of assumptions about the nature of work and the rewards due to men who have made “substantial contributions” to building up a farming asset; these are set against the stereotyped role of women who contribute as homemakers and mothers. On a deeper level, the judgments may be read against the background of economic discourses, which intersect with law to construct masculine labor as deserving while women’s labor is confined to the domestic sphere. Inherent in these formulations is the construction of women as vessels or conduits through which property is transferred between men and men, 76 with the bulk of the estate passing to the male descendant. Finally, the marginalization of women’s labor also meshed with national systems of accounting and industrial relations. 77 For instance, the Harvester wage-fixing case reflected the notion that a reasonable and fair wage was one that allowed an unskilled worker to support himself and his wife in “frugal comfort.” 78 This decision reflected social policy that the stereotypical worker was a male “breadwinner” with a housewife as his dependent, thus rationalizing and legitimating the status quo. 79 During the same historical period, national statistics disguised the extent to which Australian women were engaged in farm labor: it was thought that “women in the fields” was not something a new nation should reveal to the world. 80 While these legal cases reflect “economic biases” and conservative male attitudes towards women, they also mesh with other social views found in institutions concerned with rural life. As regards the issue of divorce, rural solicitors frequently preferred to act for men rather than women. 81 A further example of male fraternization and mutual support is provided by reports that women often have no place to go in cases of rural violence, particularly if male police officers were friendly with their husbands. 82 Finally, in the social security context, deserting wives were, by definition, not considered to be widows as regards the pension up until about the end of the 1950s. 83 More recently, Wilkie has claimed that the cohabitation rule as regards “marriage-like relationships is discriminatory against women as it forces them into continual dependence on men and therefore entrenches a patriarchal model of family responsibilities.” 84 These instances show that various institutions linked and supported patriarchal views within farming communities.

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WAS THERE A COMMON FACTOR DRAWING THESE FIELDS TOGETHER? In India Kalpagam has suggested the interlocking factors that built local society were the roles of the press, public opinion and private property. 85 What were the relevant factors in Australia and was there a common factor that linked the fields I have indicated? The forms of scientific knowledge I have referred to were constituted or imbedded with power. I have shown that Foucault argued that power is productive, and not necessarily repressive. Foucault argues power teaches, molds conduct, creates and instills aptitudes, and identifies and incites desires. 86 The elements of economic thought within law, operating through socio-technical devices, endorse prescriptive economic behavior by constituting “dividing practices.” Foucault suggests that the “judges of normality” were everywhere embedded in local power structures operating through dividing practices. 87 These “judges” install limits to the discursive domains specific to the individual subject’s position in society. 88 I suggest that “dividing practices” disqualified members of the community who were considered economically unproductive, whether they be Aboriginal, women, or the idle in general. Women who threatened productivity were subject to prejudice and seen as abnormal. There were various forms of this prejudice, one being that it was regarded as unpatriotic not to assist the nation’s birth rate by not having children. 89 Another prejudice affected women who, on grounds of being considered unfaithful to their husbands, were not deemed worthy of a pension. 90 I have already commented that the minimizing of claims by women to shares from a divorce or Family Provision claim was seen to threaten the male continuation of the farm. 91 The common factors that drew these different fields together are, I hope, becoming obvious. Overall, several factors operated together to relay moral calibrations amongst the respective power structures, including the police, associated courts and local solicitors. The genius of the empire was the dispersion of officials who sustained a battery of dualisms throughout the globe. 92 I have also mentioned the role of property as a socio-technical device. Productivity of farming family members was calibrated through fidelity devices, which connected with and reflected the wider interests of imperial finance: this was essentially an urban group of commercial interests and an economy based on trade. The common ingredient in the values relayed through the circulating grids of power was the need to retain within the family viable productive property. Irresponsible family behavior, especially irresponsible claims by women, could threaten the property and the supposed welfare of the state built on the strength of a sound rural economy.

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Should this be seen as the common factor codified in a series of power relations? Here I suggest fidelity devices linked these factors and provided uniformity of outcome. I also suggest these fidelity devices were not neutral but reflected the common factor that family property and productive labor was to be rewarded, while those who were not seen to contribute were shunned by the system. CONCLUSION: THE GOVERNMENTALIZATION OF THE STATE In Australia, the State utilized scientific forms of calculation, such as surveying, accounting, cartography and mapping, to formulate spatial and territorial allocations of land. Fundamental to the science of surveying and cartography was the facility of governments to divide and sell land in lots or parcels. 93 Australian settlement, through closer settlement schemes, saw the State allocate blocks of land to families. This allocation of family space provided the physical basis for family commitment and containment, as well as sufficient neighborliness to help keep a watchful eye on those living nearby. This declaration of a territorial homogenous jurisdiction was associated with liberal notions of individual equality: the individual came to be the bearer of rights associated with a person’s attachment to territory. 94 The importation of the scientific method into Australia also provided the basis for penology, medicine, demography, 95 and statistics, which formed the “moral basis” of the techniques used by the State to collect information. 96 The use of political economy, with its conceptions of wealth and work, required empirical answers to its “moral calibrations” through the use of measurement, forms of accounting and the classifications that constituted emerging notions of the “economy.” 97 In this context, the notion of the economy endorsed notions of moral citizenship concerning the rewarding of productive labor. Through the ownership of land, settlers were encouraged to develop their own autonomy and self-sufficiency. There are several pertinent examples of this, including the granting of land to ex-convicts to provide for their self-support and also to quell any troublemakers. 98 At later times, there were closer settlement policies with the various ideological burdens they bore. Share lists these as Christian Socialism (the Victorian schemes), the obligations of empire (the Western Australian Group Schemes) or the patriotic fervor of soldier settlement. 99 The commonality behind these schemes was an attempt to open up new spaces in order to increase the density of population. 100 Further, these policies saw attempts to redistribute land and shape class formation to provide equality of opportunity and independence from the State. 101 I have demonstrated how farmers were “structured or managed” through fidelity devices, which enabled consistency or regularity of out-

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come to be obtained over distance. I have also shown how State courts, in disputes over family property, calibrated productive property discourses within family life. In this context, I have mentioned accounting, economics and statistics as forms of knowledge that undervalue women’s labor. In other words, patriarchal power relations within family life are supported by both legal and non-legal institutions connected to the farming context. What of “agency” factors or “resistance”? While the lives of farmers were manipulated by the culture of local interlocking power networks, within local networks there was a long historical tradition of “property as rights” for agrarian people. Part of the ideal of agrarianism was the idea of self-sufficient farmers (or yeomen) being owners of the soil; agrarianism was a malleable concept, linked to the idea of farming and property ownership. Attributes of agrarianism were associated with the yeoman farmer and the idea of the prosperous small farmer with high moral standards, which set the tone for the rest of society to follow. 102 How were these modalities of power linked together? Rather than an inflexible grid of power, “running up hill or downhill,” I describe the links between local power nodules as analogous to the operation of a bike chain. Firstly, it indicates that there is movement at the level of local power nodules: here I refer to a flexible degree of local autonomy and adherence to wider norms by the police, solicitors and welfare agencies. Secondly, the idea of a bike chain invites the idea of articulation and interaction between local “small” nodules: I see several examples of this through the roles played by accountants and lawyers. Accountants were instrumental in the rural context in that they insisted on appropriate accounting procedures, which protected the remainder in a life estate. 103 At the same time lawyers used their “creativity” to support the rural accountants’ vision as regards the long-term survival of rural property. 104 The important question concerns the relationship between local interlocking power structures, which in my formulation created both the culture of the State internally, and the superstructural State. Hunt and Wickham claim that there is a broad post-Foucauldian consensus that social theory must take account of both “big and little power” and recognize their articulation and interaction. 105 Hunt and Wickham also suggest that local power structures must have some connection with structural State power. Should we then follow this view that it is necessary to see an “articulation” between “big” and “little” power? Such a directional flow between the structural State and the culture of the State privileges the importance of centralized power. While Hunt and Wickham argue that it is necessary to give some importance to “big” power, I have a different approach. Firstly, I affirm the general approach to understanding the State that objects to its “unity and rigorous functionality and importance.” 106 Secondly, I reject the Weberian notion of the penetration of the State into civil society (the etatiza-

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tion of society). As I have explained, I wish to move beyond the “Weberian rationalist thesis” and instead show how seemingly autonomous “centers” of the state were structured by state discourse. Thus, I wish to concentrate on how knowledge became formalized and articulated in order to affirm the process whereby sovereignty is located in the culture of the State. Rather than see a casual flow or articulation between the structural state and society, I take the trajectory of the “cultural State” to be a folding back of the sovereignty of the culture of the State onto the structural State itself (“the governmentalization of the State”). In other words, the structural State was colonized by the culture of the State and thus the structural State became a reflection of rural interests. To examine this claim in the context of rural Australia, I return to the list of features of the period under examination, as suggested by Kelly. To attempt to portray the interrelation of the State and the culture of society, scholars often present a symbolical physical representation. In this regard a circle may place the State at the center, such placement indicating the central importance of government and the State. Rather, I present the form of a grid that takes no particular shape. I take the key features of this grid to consist of an outer circumference of historical factors, which I perceive to be the existence of Trade Protection, the White Australia policy and Imperial Benevolence. These policies reflected the idea of individual property holdings, an immigration policy based on the perceived need for industrious white labor, and a colonial legal infrastructure that guaranteed legal enforcement of debt. Somewhere in the middle of this grid lay the family as a “relay device” for the idea of a productive family economy. The core value that held the outer and inner area of the grid together was the idea of productive labor. What was scorned was the threat of unproductiveness posed by the misuse of family property and the threat of idleness. NOTES 1. See Alan Williams, “Colonial Origins of Land Acquisition Law in New South Wales,” Journal of Legal History 10 (1989): 354–64; David G. Allen, In English Ways: The Movement of Societies and the Transferral of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill: University of North Carolina Press, 1981); John Reid, Law for the Elephant: Property and Social Behaviour on the Overland Trail (San Marino: Huntington Library, 1980). For Australia, see Louis Hartz, The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada and Australia (New York: Harcourt, Brace and World, 1964). As regards a comparative approach to “legal transplants” see Alan Watson, Legal transplants: An approach to comparative law (Edinburgh: Scottish Academic Press, 1974). 2. Joseph Powell, “Colonial Translations: Peasants and Parsons in 19th Century Australia,” Historical Geography 30 (2002): 155–76. 3. For studies that develop this perspective, see Mitchell and his study of Egypt; Tim Mitchell, Colonizing Egypt (Cairo: Cairo Press, 1988); Tim Mitchell, Rule of Experts: Egypt, Techno-Politics, Modernity (Berkeley: University of California Press, 2002). For a

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comparable study for India, see Gyan Prakesh, Another Reason: Science and the Imagination of Modern India (Princeton: Princeton University Press, 1999). 4. Alain Pottage, “The Measure of Land,” Modern Law Review 57 (1994): 361–63. 5. Stuart McIntyre, Winners and Losers: The Pursuit of Social Justice in Australian History (Sydney: Allen & Unwin, 1985), 25–26. 6. See Marx’s account of settlers’ desire for freedom and independence in coming to Australia; Karl Marx, Capital: A Critique of Political Economy (Moscow, Progress Publishers, 1954). 7. Nicola Graham, Lawscape: Property, Environment and Law (Oxford: Routledge, 2011), 134–67. 8. Patrick Atiyah, The Rise and Fall of the Freedom of Contract (Oxford: Clarendon Press, 1979), 89–90. 9. I later expand on this idea of property as a “technical device” through my description of property as “a socio-technical arrangement.” 10. The title of this chapter is a reference to a remark of Foucault, which I discuss later. See Gianfranco Poggie, The Development of the Modern State (Cambridge: Polity Press, 1990); Andrew Vincent, Theories of the State (Oxford: Blackwell, 1987); Kenneth Dyson, The State Tradition in Western Europe: A Study of an Idea and Institution (Oxford: Martin Robertson, 1980). For a recent critique of “state theory,” see Bob Jessop, “Bringing the State Back in (Yet Again): Reviews, Revisions, Rejections and Redirections,” International Review of Sociology 11 (2001): 149–73. 11. Isebill Gruhn, “State Formation,” in International Encyclopaedia of the Social & Behavioral Sciences, ed. Neil. J. Smelser, Paul Baltes and I. Pergamon (Amsterdam: Elsevier, 2002), 14970–72. 12. Richard Mohr, “Law and Identity in Spatial Contests,” National Identities 5, no. 1 (2003): 61. 13. Ralph Miliband, The State in Capitalist Society (London: Weidenfeld and Nicolson, 1969); Charles Tilly, The Formation of National States in Western Europe (Princeton: Princeton University Press, 1975); Nicos Poulantzas, Classes in Contemporary Capitalism (London: Weidenfeld and Nicolson, 1969). 14. Philip McMichael, Settlers and the Agrarian Question: Foundations of Capitalism in Colonial Australia (London: Cambridge University Press, 1984) and Andrew Wells, Constructing Capitalism: An Economic History of Eastern Australia 1788–1901 (Sydney: Allen & Unwin, 1989). Ken Buckley and Ted Wheelwright, False Paradise: Australian Capitalism Revisited, 1915–1955 (Melbourne: Oxford University Press, 1998). Denoon argues that this form of agrarian society must be seen as a social and political formation that has three characteristics; private property in land and livestock, free wage labor and the absence of peasantry. In addition, Denoon lists three less structural characteristics, which are a temperate climate, grassland vegetation and a sparse population with a preponderance of European settlers (Donald Denoon, Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere (Oxford: Clarendon Press, 1983); Christopher Lloyd, “Regime Changes in Australian Capitalism: Towards a Historical Political Economy of Regulation,” Australian Economic History Review 42, 238–66. 15. Humphrey McQueen, A New Britannia: An Argument Concerning the Social Origins of Australian Radicalism and Nationalism (Ringwood: Penguin, 1986). 16. Mitchell Dean, Critical and Effective Histories: Foucault’s Methods and Historical Sociology (London: Routledge, 1994), 142. Dean, on which I draw here, calls this development the “historical sociology of the state.” 17. Michel Foucault, Power/Knowledge: Selected Interviews and other Writings 1972–1977, ed. Colin Gordon (Brighton: Harvester Press, 1980), 102. 18. The History of Sexuality (London: Penguin, 1978), 88–89. 19. Monique Nuijten, “Between Fear and Fantasy: Governmentality and the Working of Power in Mexico,” Critique of Anthropology 24 (2004): 211. 20. Anthony Giddens, The Nation-State and Violence (Cambridge: Polity Press, 1985), 172–97.

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21. Michel, Foucault, “Governmentality.” In The Foucault Effect: Studies in Governmentality, edited by Gordon Burchell and Peter Miller (London: Harvester Wheatsheaf, 1991), 73–86. 22. This expression was developed by Foucault, “Governmentality.” 23. Theda Skocpol, “Bringing the State Back In,” in Bringing the State Back In, ed. Peter Evans, Dietrich Rueschemeyer and Theda Skocpol, (Cambridge: Cambridge University Press, 1985), 3–43. 24. Antonio Gramsci, Further Selections from the Prison Notebooks (London: Lawrence & Wishart, 1995), 164–65, cited in Ratna Kapur, “Hegemony, Coercion and their TeethGritting Harmony: A Commentary on Power, Culture and Sexuality in Franco’s Spain,” Michigan Journal of Race and Law 5 (2000): 996. 25. Perry B. Share, “Tickle It with a Hoe and It Will Laugh with a Harvest! Discourses of Closer Settlement in Australia 1898–1988,” Unpublished Doctorate (School of Sociology and Anthropology, LaTrobe University, 1994): 3. 26. David Cheal, Family and the State of Theory (New York: Harvester, 1991), 106–11; Mary McIntosh, “The State and the Oppression of Women,” in Feminism and Materialism: Women and Modes of Production, ed. Annette Kuhn and Annmarie Wolpe (London: Routledge and Keegan Paul, 1978), 254–89. 27. Andrew Lattas, “The New Panopticon: Newspaper Discourse and the Rationalisation of Society and Culture in New South Wales 1810–1883,” Unpublished Doctorate (Adelaide University, 1985): 175. 28. John B. Hirst, Convict Society and its Enemies (Sydney: Allen & Unwin, 1983), 79. 29. Caroline Knowles, The Family Boundaries: The Invention of Normality and Dangerousness (Peterborough: Broadview, 1996), 33. 30. For a similar approach as regards plantations see James Duncan, “Embodying Colonialism? Domination and Resistance in 19th Century Ceylonese Coffee Plantations.” Journal of Historical Geography 28/3 (2002): 317–38. For similar treatment of family farming which treats farming as a socio-technical device see Egon, Noe, and Hugo Alroe’s “Farm enterprises as self-organizing systems: A new transdisciplinary framework for studying farm enterprises?” International Journal of Sociology of Agriculture and Food 11/1 (2003): 3–14. These studies are influenced by Bruno Latour, Science in Action: How to Follow Scientists and Engineers through Society. Cambridge: Harvard University Press, 1987. See also Russell Hogg and Kerry Carrington. “Governing Rural Australia: Land, Space and Race.” In Rethinking Law, Society and Governance: Foucault’s Bequest, edited by Gary Wickham and George Pavlich, 43–60. (Oxford: Hart Publishing, 2001). Hogg and Carrington (2001) note that in the vast outback of Australia governance meant not only the governance of populations remote from each other (compare the closely occupied ghettos of Europe), but also the governance of non-human things like land, natural resources and climate. 31. Susan Hirsch and Mindie Lazarus-Black, “Performance and Paradox: Exploring Laws Role in Hegemony and Resistance,” in Contested States: Law Hegemony and Resistance, ed. Mindie Lazarus-Black and Susan Hirsch (London: Routledge, 1994), 1–31. 32. Felix Driver, Power and Pauperism: The Workhouse System, 1834–1884 (Cambridge: Cambridge University Press, 1993), 20. 33. I expand on this point later. 34. Craufurd D. W. Goodwin, Economic Enquiry in Australia (Durham: Duke University Press, 1966), 606–61. 35. On the development of landed property as security for mortgage finance see Douglas Whalen, The Torrens System in Australia (Sydney: Law Book Company, 1982), 3–11; Andrew Wells, Constructing Capitalism: An Economic History of Eastern Australia 1788–1901 (Sydney: Allen & Unwin, 1989), 87. 36. It should be noted that a large part of rural Australia is actually leasehold land, where ownership is not individual, but is retained by the Crown. I take it that the term “fidelity devices” expands on the ideas of Rose and others. 37. See Nikolas Rose, Powers of Freedom: Reframing Political Thought (New York: Cambridge University Press, 1999), 49; Keith Robson, “Accounting Numbers and In-

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scription: Action at a Distance and the Development of Accounting,” Accounting Organisations and Society 17, no. 7 (1992): 685–97; Gavin Kendall, “Governing at a Distance: Anglo-Australian Relations 1840–70,” Australian Journal of Political Science 32 (1997): 223–35. 38. The authors in the above footnote develop the notion of governance from a distance. Robson’s ideas are similar to my own as regards fidelity devices. 39. I expand on this point later. 40. On the development of statistics, see Rose, Powers of Freedom: Reframing Political Thought, 202–3; Ian Hacking, “How Should We Do The History of Statistics?” Ideology and Consciousness 8 (1981): 15–26. 41. On the early role of accountancy, see Fong Chua and Chris Poullaos, “The Dynamics of Closure Amidst the Construction of Market, Profession, Empire and Nationhood: An Historical Analysis of an Australian Accounting Association 1886–1903,” Accounting Organisations and Society 23, no. 2 (1998): 155–87; and Dean Neu and Richard Therrien, Accounting for Genocide: Canada’s Bureaucratic Assault on Aboriginal People (Halifax: Fernwood Publishing, 2003). 42. Susan Greenhalgh, “The Social Construction of Population Science: An Intellectual, Institutional, and Political History of Twentieth Century Demography,” Society for Comparative Study of Society and History 38, no. 1 (1996): 26–66. 43. On the invention of the economy see Susan Buck-Morss, “Envisioning Capital: Political Economy on Display,” Critical Inquiry 21 (1995): 434–67; Tim Mitchell, “Fixing the Economy,” Cultural Studies 12, no. 1 (1998): 82–101; Tim Mitchell, Rule of Experts: Egypt, Techno-Politics, Modernity (Berkeley: University of California Press, 2002). 44. See Claire Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare (Melbourne: Australian Scholarly Publishing, 2002), 4–14, and her discussion on the action of wives under the Deserted Wives and Children Act (1840) (Vict). 45. Brian Fletcher, Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821 (Sydney: Sydney University Press, 1976), 12–13. 46. George Behlmer, Friends of the Family: The English Home and its Guardians, 1850–1940 (Stanford: Stanford University Press, 1998), 532. 47. As regards the working class, see Lynette Finch, The Classing Gaze: Sexuality, Class and Surveillance (Sydney: Allen & Unwin, 1993). 48. Desley Deacon, Managing Gender: The State, The New Middle Class and Women Workers 1830–1930 (Melbourne: Oxford University Press, 1989), 7. 49. Deacon, 213. 50. Share, “Tickle It with a Hoe and It Will Laugh with a Harvest! Discourses of Closer Settlement in Australia 1898–1988,” 184. 51. Marilyn Lake, “Building Themselves up with Aspros.” 52. See Donzelot for this type of argument; Jacques Donzelot, The Policing of Families (London: Hutchinson & Co, 1979). 53. Mitchell Dean, Governmentality: Power and Rule in Modern Society (London: Sage Publications, 1999), 114, his emphasis. 54. Gruhn, “State Formation.” 55. Philip Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford: Blackwell, 1985), 4. 56. James Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836–1915 (Boston: Harvard University Press, 1964), 290. 57. Dean, Critical and Effective Histories: Foucault’s Methods and Historical Sociology, 150–51. 58. U. Kalpagam, “Colonial Governmentality and the Public Sphere in India,” Journal of Historical Sociology 15, no. 1 (2002): 37. 59. I acknowledge the influence of Dean in this formulation; Dean, Governmentality: Power and Rule in Modern Society, 210. 60. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, 122. 61. Dean, Critical and Effective Histories: Foucault’s Methods and Historical Sociology, 157.

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62. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, 88–92. 63. Foucault, 69. 64. Max, Weber, Economy and Society: An Outline of Interpretative Sociology (Berkeley: University of California, 1978), 956–1005. Nikolas Rose, Powers of Freedom: Reframing Political Thought (New York: Cambridge University Press, 1999), 148. 65. Rose, 210–13. 66. Tenants of land could not commit waste, which meant that tenants could not allow the land to decline in value. Tim Bonyhady, The Colonial Earth (Melbourne: Melbourne University Press, 2000), 161–63; Chris Bessant, “From Forest to Field: A Brief History of Environmental Law,” Legal Service Bulletin 16, no. 4 (1991): 160–64. 67. Robson, “Accounting Numbers and Inscription: Action at a Distance and the Development of Accounting,” 697. 68. Kendall, “Governing at a Distance: Anglo-Australian Relations 1840–70.” 69. Mitchell Dean, “Liberal Government and Authoritarianism,” Economy and Society 31 (2002): 37–61. 70. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994), 18. 71. Geoff Danaher, Tony Schirato and Jen Webb, Understanding Foucault (Sydney: Allen & Unwin, 2000), 32. 72. Yuri Girbich, Modern Trusts and Tax Law (Sydney: Butterworths, 1978), 324–25. 73. As regards Family Provision cases, see Malcolm Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm,” Australian Journal of Family Law 7 (1993): 191–224; Malcolm Voyce, “Testamentary Freedom, Patriarchy and Inheritance of the Family Farm in Australia,” Sociologia Ruralis 34, no. 1 (1994): 71–83. For cases of divorce settlement which reward “pioneering” and “hardworking” see Robinson v. Robinson 1961 W.A.R.56. On rural divorce generally, see Malcolm Voyce, “The Farmer and His Wife: ‘Hey ho the dairy goes,” Alternative Law Journal 18, no. 3 (1993): 121–25. 74. For a critique of Victorian economists as regards the place of women see Peter Groenewegen, Feminism and Political Economy in Victorian England (Vermont: Edward Elgar, 1994); As regards women and primogeniture, see Miller 1980. 75. M. Pujol, “Into the Margin!” in Out of the Margin: Feminist Perspectives on Economics, ed. E. Kuiper and J. Sap with E. Feiner, N. Ott and Z. Tzannatos, (London: Routledge, 1995), 17–34. 76. Lorenne Clark, “Women and Locke: Who owns the Apples in the Garden of Eden,” in The Sexism of Social and Political Theory: Women and Reproduction from Plato to Nietzsche, ed. Lynda Clark and Lorenne Lange (Toronto: University of Toronto Press, 1979), 16–40; Mary L. Fellows, “Wills and Trusts: The Kingdom of the Fathers,” Law and Inequality 10 (1991): 137–62. 77. See Marilyn Waring, Counting for Nothing: What Men Value and What Women are Worth (Wellington: Allen & Unwin, 1988); Nancy Folbre, “The Unproductive Housewife: Her Evolution in the Nineteenth Century Economic Thought,” Signs 16, no. 3 (1991): 463–84. 78. Ex parte H V Mckay (1907) 2CAR 1 (the “Harvester” case). See also the Rural Workers Union v. Mildura Branch of the Australian Dried Fruits Association (1912)76CAR 62 (the “Fruitpickers” case). 79. Laura Bennett, “Legal Intervention and the Female Workforce: The Australian Conciliation and Arbitration Court 1907–1921,” International Journal of Sociology of Law 12, no. 23 (1984): 34. 80. Lake, “Help Mate, Slave, Housewife: Women in Rural Families 1870–1930,” 179; Desley Deacon, “Political Arithmetic: The Nineteenth Century Australia Census and the Construction of the Dependent Woman,” Signs 11 (1985): 29. In 1995 there was a recent example of the “under accounting” of women’s work on farms. In that year, the Australian Bureau of Agricultural Economics and the Australian Bureau of Statistics produced a report on women on farms; J. Gooday, “Women on Farms,” Australian

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Bureau of Agricultural Economics, Research Report 95, 1995. Alston claims that this report was too narrowly focused as it utilized a narrow definition of work and focused on tasks directly relating to men and consequently devalued the work of women. Margaret Alston, “Farm Women and Their Work: Why is it not Recognised?” Journal of Sociology 34, no. 1 (1998): 32. 81. Margaret James, “Marriage and Marital Breakdown in Victoria 1860–1960,” Unpublished Doctorate (La Trobe University, 1984): 273. 82. Chilla Bulbeck, Living Feminism: The Impact of Women’s Movement on Three Generations of Australian Women (Cambridge: Cambridge University Press, 1997), 171. 83. A. Jordan, “Of Good Character and Deserving a Pension: Moral and Racist Provisions in Australian Social Security,” The Social Policy Research Centre, Research Report, University of Sydney, 1989, 40. 84. Meredith Wilkie, Women Social Security Offenders: Experiences of the Criminal Justice System in Western Australia (Perth: University of Western Australia, Crime Research Centre, 1993). Wilkie’s research covered recent years but it is clear her complaints about the position of women in this situation have been long standing. 85. Kalpagam, “Colonial Governmentality and the Public Sphere in India,” 37. 86. Foucault, Power/Knowledge: Selected Interviews and other Writings 1972–1977, 119. 87. Geoff, Danaher, Tony Schirato and Jen Webb Understanding Foucault (Sydney: Allen & Unwin, 2000), 60. 88. Danaher, Schirato and Webb, Understanding Foucault, 60. Michel Foucault, “Afterword: The Subject and Power,” in Michel Foucault: Beyond Structuralism and Hermeneutics, ed. Hubert Dreyfus and Paul Rabinow (Brighton: Harvester, 1982), 208. 89. Finch, The Classing Gaze: Sexuality, Class and Surveillance, 108. 90. A. Jordan, “Of Good Character and Deserving a Pension: Moral and Racist Provisions in Australian Social Security,” The Social Policy Research Centre, Research Report, University of Sydney, 1989, 25–27. 91. Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm”; Malcolm Voyce, “The Farmer and His Wife: ‘Hey Ho the Dairy Goes.” 92. David Sugerman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition,” in Legal Theory and the Common Law, ed. William Twining (Oxford: Blackwell, 1986), 26–62. 93. Simon Ryan, The Cartographic Eye: How Explorers Saw Australia (Cambridge: Cambridge University Press, 1996). 94. Mohr, “Law and Identity in Spatial Contests,” 54. 95. The development of demography did not begin until the 1920s–1930s. See Oxford History of Australia under “demography” and Greenhalgh, “The Social Construction of Population Science: An Intellectual, Institutional, and Political History of Twentieth Century Demography.” 96. Here I am referring to the transformations in the social sciences, which appear to reflect the delocalizations of social statistics, the “representative method” and random sampling, all vital ingredients in the creation of the welfare state. See Alain Desrosieres, The Politics of Large Numbers: A History of Statistical Reasoning (Cambridge: Harvard University Press, 1998), 221–22. See also Ian Hacking, The Taming of Chance (Cambridge: Cambridge University Press, 1990); Rose, Powers of Freedom: Reframing Political Thought, 197–230. I suggest that an appropriate analysis of economic reports and governmental inquiries would reveal this transition. 97. U. Kalpagam, “Colonial Governmentality and the Economy,” Economy and Society 29, no. 3 (2000): 419; Mitchell, “Fixing the Economy”; Mitchell, Rule of Experts: Egypt, Techno-Politics, Modernity. 98. Brian Fletcher, Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821 (Sydney: Sydney University Press, 1976), 14.

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99. Share, “Tickle It with a Hoe and It Will Laugh with a Harvest! Discourses of Closer Settlement in Australia 1898–1988,” 3. See Lake, “Help Mate, Slave, Housewife: Women in Rural Families 1870–1930” and the discussion in Share. 100. Joseph M. Powell, A Historical Geography of Australia (Cambridge: Cambridge University Press, 1988), 25–28. 101. Robin Gollan, “American Populism and Australian Utopianism,” Labour History 9 (1965): 38. 102. Joseph Powell, Mirrors of the New World: Images and Image-Makers in the Settlement Process (Canberra: Australian National University Press, 1977), 76–83. 103. C. Hungerford, “The Accounts of Sheep Stations Managed by Trustees,” The Public Accountant, March 27 and April 28 (1922). 104. Malcolm Voyce, “Governing from a Distance: The Significance of the Capital Income Distinction in Trusts,” in Feminist Perspectives on Equity and Trusts, ed. S. Scott Hunt and H. Lim (London: Cavendish, 2001), 153–77. 105. Hunt and Wickham, Foucault and Law: Towards a Sociology of Law as Governance, 18; Alan Hunt, “Foucault’s Expulsion of Law: Towards a Retrieval,” Law and Social Inquiry 17, no. 1 (1992): 11. 106. Foucault, “Governmentality,” 103; Dean, Governmentality: Power and Rule in Modern Society, 210, 26.

EIGHT Governing the Rural Family in Australia from a Distance The Family Provision Act and the Role of “Expert Knowledges”

This chapter examines further the governance of rural families in Australia and the legal treatment of inheritance disputes. This is done in two ways. Firstly, the chapter examines how law embodies forms of rhetoric about family property. Secondly, it shows how law is imbricated with expert knowledges as regards assessments of family members’ claims and needs. The aim of this chapter is not to give an outline of the laws pertaining to Family Provision legislation; this has already been discussed in chapter 6. Rather, this chapter deals with cases that reflect how law has been imbricated with expert forms of knowledge that enable the state to “rule from a distance.” The cases discussed here provide examples of the overall thesis about how law was reflected in the governance of the “pioneer settler state,” namely that period of history when Australia was seen to “ride on the sheep’s back” and the pastoral industry underpinned the economy. This period, as I have indicated, was accompanied by the pioneer legend with its ideas of masculinity based on courage and enterprise. FAMILY PROVISION LAW The role and application of Family Provision law has been previously explained. In Family Provision law what is assessed primarily are the needs of the parties. In a nutshell, the applicant must demonstrate to the 155

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court that “adequate provision” has not been made for the “proper maintenance and support” of eligible applicants. 1 In coming to a decision, a court must act from the perspective of “a just and wise testator” and from the standpoint that reflects community standards. 2 THE SOCIAL BACKGROUND OF FAMILY PROPERTY DISPUTES Farming communities adhere to an ideology that prioritizes passing the farm property to someone in the next generation of the family. 3 This kind of intergenerational exchange may be seen as a “script.” As Vanclay and Silvasti comment, “This script represents an ideology of patrilineal succession to keep the farm in the family.” 4 Vanclay and Silvasti recognize that one strong ideology in family farming is based on support for male dominance in agriculture, which results in the differential treatment of children along gender lines. Rural patriarchy “does not operate in a vacuum” but has a material base, resting in large part on men’s control over women’s access to the means of a livelihood and hence economic dependence on men. 5 The distribution of assets in inheritances often causes bitter divisions amongst family members, especially when one child receives a larger than expected share. Unlike non-farming inheritances, there is a tendency for farming sons to receive the largest share. This pattern of property distribution goes against notions of equality usually favored in modern forms of inheritance. 6 This tension is often exacerbated by the fact that farms have escalated in value, a fact that breeds acrimony within families. Each member of a family may have their own expectations about who should inherit farm property. I call these expectations “property narratives”: they function as forms of rhetoric 7 that resonate with historic sentiments and different justifications about the significance of owning property. These stories about property often express in popular form ideas that philosophers such as Locke make in their justifications for property rights. 8 An examination will be made of the various narratives deployed in Family Provision cases as regards the labor of the farming son and the story of the foundational events surrounding the initial purchase of the farm. It will be suggested that these accounts exhibit a rhetorical form in that they represent coherent arguments that contain both autobiographical reflection and a version of community history. These accounts achieve several purposes. Firstly, ideas of property embedded into these narratives reveal notions of kinship and personal relationships. At the same time, they are connected to notions of personhood and identity. 9 Families may be identified via the bonds that structure and give meaning to their lives. 10 Recent studies show, contrary to

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notions of individualism, that there is still a general concern for people to take responsibility for dependents in order to preserve both the bloodline and their heritage. 11 Secondly, ideas of “property” reveal that family farm members are connected to the process of location and place because property dwellers experience “place attachment.” The expression “attachment” describes the emotional bond that develops between person and place, which may arise out of memories and feelings evoked by the landscape. Such an approach emphasizes the lived experience and everyday experience of belonging to a place. 12 Thirdly, land that has been associated with the idea of improvement: those who work on the property should be rewarded for their efforts, 13 and such work also improves moral character. This argument about the value of property pays less attention to the economic value of the land itself and more to the ethical claims of those who have worked on the land. 14 Fourthly, associated with these ideas is the notion of custodianship or trusteeship, which can take various forms. For instance, the central goal for an aristocratic family in medieval times was the protection of their landed estates intact for the male bloodline. 15 In Australia in recent times farmers have often expressed the idea that farming land was a form of trust property that should be kept for successors. 16 For instance, some farmers take a “longitudinal approach” to property where three generations may be involved in a property at any one time. FOUCAULT AND GOVERNANCE, NORMALIZATION AND THE “EXAMINATION” I have indicated that the task of this book was to critique the role of the state and its associated networks of power to rule from a distance in rural Australia. This method of inquiry was based on the ideas that property and the family farm may be seen as forms of technical devices. I have also argued that the state ruled through a particular form of the family and that the courts and associated institutions were linked to local networks of power. These notions were explained through Foucault’s ideas of “governmentality” regarded government not as a form of representation but as a matter of intervention. To comprehend government, he suggested, we should see it as a form of technology that seeks to translate thought into reality, and hence establish a world of persons and things that acts on subjects. 17 This use of the term “technology” suggests an approach that shows attention should be given to the mechanisms through which governments seek to shape subjects and to normalize their conduct and thought. Thus, to understand modern forms of rule we

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should first examine relatively ordinary mechanisms like techniques of accountancy and other forms of evaluation. 18 If we view the family farm as a technical device we may conceive that the domestic unit has become a key field of intervention for the state because families represent a bridge to larger relationships of power. Kinship, procreation and inheritances were the domain of state power, with the family functioning as a “hinge” or “switch point” between localized forms of power and state power. 19 Foucault regarded the family as having a degree of local sovereignty as it could be relied upon to police its members and to offer them up to state authorities for education or therapy. 20 However, the family was simultaneously subject to professional disciplines of individualization, categorization and spatial segregation. I have explained the nature of Foucault’s thesis on disciplinary power. I now proceed to explain how this form of power was imbricated in judgements which enshrined a particular form of knowledge. Foucault showed how disciplinary power has several components, namely hierarchical observation, normalization and the examination. Normalization establishes a corrective function that determines whether one is a good soldier, teacher or worker (to give a few possibilities). Its purpose is to establish the gaps that exist between expectation and practice. Foucault says of the “examination”: The examination combines the techniques of an observing hierarchy and those of a normalizing judgment. It is a normalizing gaze, a surveillance that makes it possible to qualify, to classify and to punish. It establishes over individuals a visibility through which one differentiates and judges them. That is why, in all the mechanisms of discipline, the examination is highly ritualized. In it are combined the ceremony of power and the form of the experiment, the deployment of force and the establishment of truth. 21

While I have mentioned the nature of the examination, it is necessary to provide further analysis of this idea and relate it to how a legal judgment incorporates different forms of knowledges. This work differs from standard forms of legal scholarship in that it sets itself the task of not making the usual form of case analysis to enable lawyers to understand what the law might be in another similar situation. Rather it uses law as an ethnographical form of evidence to show through the examples of narratives how judgments utilized particular forms of knowledge. Foucault’s purpose in outlining the different forms of legal processes was to show how the examination incorporates both normalization and forms of expert knowledges, which he did in two ways. Firstly, Foucault outlines the form of truth-finding in early Greek legal processes. He regarded the dispute between Antiochus and Menelaus in the Iliad as illustrative of a previous method for obtaining truth. 22 Foucault perceived that the way truth was reached in this context was by

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way of a testing game. He extrapolates that the modern form of trial differs in that it draws on the observation of power holders and a criterion of normality. In other words, the trial process draws on a contextually specific power-knowledge complex that constructs normality, which Foucault termed normalization. 23 Secondly, the reader may recall the description in Discipline and Punish of the dramatic physical punishment of Damien through the progressive destruction of his body. This mutilation represented to Foucault the end of an era, with the consequent development of the “examination” as a forum for a whole series of assessments, diagnoses, prognoses and corrective suggestions. By focusing on the trial rather than the criminal act we may see how all kinds of expert opinions from the sciences were incorporated into the trial. Foucault links this development with the birth of a “new epistemological-juridical formation.” 24 This new event brought about “epistemic competition” between legal and scientific discourse. 25 In this light I now discuss the usual treatment of Family Provision law to detail my divergent approach. In this respect I intend to show through the work of de Sousa Santos and others, how Family Provision law deploys a different form of logic. CRITICAL APPROACHES TO FAMILY PROVISION LAW Commentators on Family Provision law have observed how the state, at the turn of the twentieth century, intervened into family life to override individual action and curtail free will. This approach was at odds with the older view of laissez-faire as expressed in the idea of “freedom of property.” 26 This move by the state was reflected in the introduction of Family Provision law as a form of legislation that could intervene in the family realm to restore imbalances of power and improve the inequalities between men and women. As has been well shown by Atherton, Family Provision legislation was developed as a response to men who neglected to make testamentary provision for their wives and children following the abolition of dower. 27 Family Provision legislation was a reaction to the liberal assumption of a division between the public and the private realm: the state was now seen as the main source of governance, based on the progressive idea that reform measures in law could restructure social life. This approach assumed both that the domestic sphere could be governed by state measures and that disciplinary technologies could construct model families. The “liberal approach” to Family Provision has ignored other forms of power and technologies, such as the disciplinary role of economics, as well as how such disciplines interlocked with each other at a local level. 28 I therefore suggest that a new approach to Family Provision law is

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needed to understand how it operates as part of rural governance more generally. The only other critique of Family Provision law has been provided by Cownie and Bradley, who make an analysis of such legislation in the United Kingdom. 29 They argue that the most common form of legal reasoning may be called “deductive reasoning.” However, they argue that Family Provision law does not utilize this form of logic, but instead uses a different form of rhetoric allied to a different set of concerns. 30 Cownie and Bradley take as an example the type of rhetorical reasoning found by Bonaventura de Sousa Santos in cases of disputes in shantytowns in Brazil. De Sousa Santos found that, although shantytown occupiers held no legal title to the property they occupied, they nevertheless developed an informal or unofficial legal system to deal with their occupation of these houses and any property disputes that arose. He found that these people had a particular system of argumentative rhetoric that was deployed in land disputes. The work done by de Sousa Santos, Cownie and Bradley is of help in the Family Provision context as it indicates how there may be a transplant of rhetorical forms from a social arena into a legal forum. These authors usefully indicate that Family Provision cases deploy a different form of analysis, based on a different form of logic. Hence, I refer to how rhetoric as a form of persuasion by argumentation or as a decision-making strategy was transposed onto family property decisions. 31 At the same time, all such decisions were subject to the process of normalization. THE NARRATIVES OF SPECIFIC CLAIMANTS TO PROPERTY The Farming Sons’ Cases I now examine aspects of some cases involving family property disputes. My analysis involves typical “actors” in the “drama” of these cases, namely sons, widows and daughters. This form of analysis adopts what I have called an ethnographic approach to legal judgments which examines the personal narratives of family disputants and the forms of rhetoric incorporated (or excluded) in these cases. Many family members feel a special connection with a farm property that has been in the family for several generations. This is especially the case with “farming sons,” as they often consider themselves “special” for a variety of reasons. Such sons may feel they are charged with carrying on a farming legacy and hence bear a personal responsibility to continue a family tradition. In Vigilo v Bostin 32 the son whose claim was not recognized said: I’ve put up with hell since I was 16, and trying to bring a family up with $40 a week at that stage, my wife working, you know, we were

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working basically 15 hours a day 7 days a week to survive on promises of “Great, beauty, one day it’s going to be mine.” We were looking for this bit of dirt, and at the end of the day told to leave with the shirt on my back. It’s a bit hard. And also like Subarian [his lawyer] pointed out, that what are you going to do at 16 or 18, was I going to go out and get a solicitor and say “Pop, let’s go and see the solicitor and put it all down in writing.” You know what he would have said? Just imagine you doing that to your father, what would he say? 33

In Dawson v Joyner 34 there were two sons claiming the land. Commenting on their situation, the judge said: Until about age 23 Garry had precisely the same relationship with the testator as did Ross. Both were raised on the family property. Both worked on the property as children, being paid very modest sums. Garry was sent off to Agricultural College with the intent that he return and work on the property. Ross stayed on the property. As adults they were paid an award wage together with benefits such as fuel, free meat and milk, accommodation, and groceries to be charged to the testators’ account up to $30 per week. While there may be some dispute about the detail of the payments made it seems clear that both worked hard for fairly modest financial returns.

The testator made it plain to his two sons that the intention was that the aggregation would be built up by their joint efforts to enable their two families to live off the properties, and that they would one day inherit those properties. In Daniels v Hall 35 the judge described the plaintiff as having . . . to live on the family farm and was persuaded, he would say compelled, by his father to leave school early and to devote the whole of his time and efforts to working the family farm and, in the process, to take up additional land in the plaintiff”s own name and to work that in conjunction with the home farm. According to the plaintiff, he did this out of respect for his father’s demands and worked hard for small financial reward.

The judge commented: There is no doubt that Robert Daniels was an attentive and assiduous worker on the farm and in the partnership right from the inception, that is, before the formalisation of the partnership in 1974. Indeed, he claims that he was constantly working on the farm from the age of 10 and that he had abandoned an ambition to have a working career as a pilot because of his father’s insistence that he should stay and work on the farm. It is also clear that Robert was attentive to the needs of his mother and his father, the deceased, particularly when they were in declining health. As already mentioned, he helped build the house on the block at 28 Gibson Way, Hopetoun and he used to visit his mother at regular intervals when she was in care at the Ravensthorpe Hospital. He continued to see his father regularly after the dissolution of the

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These cases describe the situation of these sons. They conceive they have been subject to self-exploitation, overzealous parental authority and low wages which were not compensated by farm produce. In addition, these sons may look after aging parents: in all they feel these factors give them the right to inherit the farm. FARMING WIDOWS Widows were often seen as objects of pity and sympathy, especially if their husbands had left them in a financially precarious position. By contrast, there was the image of the “merry widow,” a stereotype created by men as a consequence of their fears about female sexuality and their own mortality. 36 Despite the patriarchal nature of the law, a study of nineteenth-century widows’ wills has shown that many men did attempt to provide for their families. 37 However, these men were also worried that their property could come under the protection of another man, should they predecease their wife. 38 Typically, such widows had spent their life on the farm and were dependent on the surviving family for support in old age. Such a widow may well have borne the testator’s children, lived on the farm with him for many years and helped him through declining health. 39 One previous examination has already outlined the nature of life estates and their operation in the rural context. Implicit in such settlements was the view that women were mere objects of protection, in the sense that the farm property was to be protected for the ultimate male heirs, while the widow was to be maintained primarily for her past role as the bearer of heirs. As Atherton argues: Judges echoed loudly the eighteenth-century framework . . . in which women generally, and married women in particular, were seen as objects of protection—but only in a “conduit pipe” sense. She was protected in so far as her need for maintenance was concerned, but not to the extent of any real notion of independent mind. 40

Life estates are time-honored devices, usually created in a will or through an inter vivos trust set up by a solicitor to be administered by an accountant. The device allows the life tenant (usually the widow) to enjoy the benefits of the estate while the son farms the property, with the expectation that the latter will inherit the property on the death of the life tenant. The device is created in a structure by which the life tenant receives the

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profits of the estate while the remainderman will receive a salary; on the death of the widow, the farming son will receive the property. Implicit in this principle of apportionment was the notion that the life tenant’s share should be minimized to help smooth the transition as the estate passed between different generations of males. Life estates are technical creations that split ownership over time between two successive titleholders. These arrangements I suggest are implicated in local power networks that operate to discriminate against farming widows. The legal and accounting administration of life estates, as well as the carriage of the legal affairs of the family, was usually a local solicitor and accountant acting in concert for a male representative of the family. This relationship generally operated to reinforce the interests of life tenant against the interests of the widow. DAUGHTERS Daughters on family farms are usually expected to participate in farm work and as a consequence develop skills comparable to their brothers. However, this work is not usually recognized and daughters who wish to take up farming as a career are normally discouraged because the prevailing attitude favors sons as successors. 41 As Riley reports, girls generally see their place on the farm as “transitory” while boys’ engagements through farm tasks are seen as “rites of passage.” 42 It is instructive that in some cases judges refer to the life story of the daughter, with no mention of her efforts on the farm in her youth. 43 At the same, time Family Provision cases show a lack of recognition for girls who looked after aging parents. 44 For instance, in Salmond v Osmond the judge commented: The daughter, like her siblings, grew up on the farm. It had been her wish to stay on the farm and help her father, but he considered that that was inappropriate and he found her a job in a pharmacy in Wagga Wagga. . . . [although she] lived away from Wagga Wagga from about the time she commenced her relationship with Mr Long, she maintained contact with her parents, visiting two to three times a year. During those visits, she always assisted around the farm. 45

While cases usually consider the needs of individual applicants, there have been instances where judges consider the well-being of the family as a whole. For instance, in one case a judge minimized the contribution a daughter might have received in order to help support the rest of the family. In this case, an applicant daughter was entitled to a significant portion of her father’s estate to purchase a house in town. However, the trial judge said that the bulk of the farm should not be sold as the property was being used to support other family members.

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Disrupting the arrangements would disrupt the pattern of family relationships upon which their lives and happiness are formed, and would also disrupt the interests, expectations and life plans of close relatives with whom they feel a sense of identity. 46 “MARRYING-OFF THE DAUGHTERS” A feature of many Family Provision cases is that married daughters who make applications under the legislation have been considered sufficiently well maintained and not in need of support, assuming their husbands were doing well in life. 47 This view reflects again the idea of women as “dependent” on a husband who can be relied on as the primary earner in the relationship. The result, in effect, is that by not providing for a daughter the rest of the estate is released to help establish the eldest son in a farming role. For instance, in Re Hodgson 48 the daughter was regarded as “taken care of” as she had married well. In deciding whether or not the testator was guilty of a breach of moral duty towards the daughter, one of the relevant factors was the income and prospects of the man the daughter had married. As she had married a prosperous husband, Herring J considered she had “transferred into another household” and so her father consequently was not responsible for her. 49 Martin J held that, as the property was small and probably not susceptible to division, in the circumstances the elder son had “at all events a strong moral claim to be entitled to carry it (the farm) on as a dairy farm.” 50 The judges concluded that the daughter was well provided for as she was married to a healthy husband with adequate means and good prospects. As regards the daughter, Sholl J said: When he came to the situation of the daughter, he was aware that she had recently married a young farmer in the vicinity who appeared to be in quite comfortable circumstances, and well able to support her and the child she then had. In those circumstances the problem is whether she had some need and some moral claim. So far as need is concerned she has given no evidence as to her husband’s assets other than that the husband was making a modest living and was not affluent. It appears from her cross-examination that he owns two farms and has an interest in the partnership in the lease of another. I don’t know what he earns, but I see no reason to doubt the statement that he is in comfortable circumstances. She was at the death of the testator married to a young farmer who is well off financially and well able to look after her. He could be reasonably assured that their married life would be a success. Should any misfortune overtake him, she has the benefit of his will or of the statute. Her financial future was perfectly assured or appears to be so. I see great difficulty in seeing how the daughter has a claim on his bounty. 51

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In effect, the judges were saying that, having left one family for the security of her husband’s family, the daughter had therefore lost her claim on her father’s estate. 52 THE ROLE OF RHETORIC IN FAMILY PROVISION CASES AND THE IMBRICATION OF EXPERTISE INTO FAMILY PROVISION JUDGMENTS I have argued that disputes about family property enshrine forms of rhetoric. I take rhetoric to mean statements that contain a logic of reasonableness or common way of thinking that is adopted by judges as part of the presentation of their judgment. This approach sees law as a cultural description, 53 as well as a form of reasoning. These forms of presentation also calibrate what is considered acceptable and what is deemed illicit. As I argue, such rhetoric incorporates forms of normalization. I have examined forms of rhetoric active in Family Provision cases as regards family farms. These were claims, firstly, based on the history of the farming son continuing to work the farm. Secondly, I examined cases where the long-term viability of the farm was the principal factor that underpinned the court’s decision. In these latter cases widows and daughters received minimal amounts on the basis that intergenerational continuity for a male line should be maintained. The first group of cases discussed the claims of farming sons who had been brought up to work on the land. Milner suggests that such “property narratives” show stories of identity pertaining to the sons’ history, property and place. 54 In general, these farming sons’ stories reflect the values of intergenerational exchange and a seamless flow between generations, as each contributes to the property before passing it on to the next generation. In these cases, the land was “family land” in the sense that it was intergenerational property, with reciprocal exchange of property title for labor. This is implicit in founding stories about the family on the land and the recognition given to the son for his work. Part of the family story also involves how sons leave their previous existence as off-farm workers and become stakeholders as farmers. These accounts emphasize what Milner calls the “rites of settlement.” They portray the struggle of hard work and the taming of nature, emphasizing a son’s status as farmer and his supposed right to keep the fruits of his struggle. Secondly, I referred to a group of cases that marginalized women’s contributions on farms. These happened in two sorts of cases: widows who received life estates and farming daughters. Cownie and Bradley have argued that Family Provision cases are a form of topoi or type of argument that operates from different kinds of dialectical and rhetorical proofs, as found in other areas of law. Cownie and Bradley also contend that these forms of rhetoric adopt arguments from generally accepted

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opinions, which provide fragmentary insights or points of view that orientate the problem and open up the possibility of a different set of solutions. 55 The deployment of this form of rhetoric is consistent with the critique generally advanced on the role of discretion found in Family Provision law. 56 I suggest that this form of approach utilizes a particular form of discretion that is not a form of “inquiry” but instead an “examination” based on the notion of “normalization.” As indicated, normalization involves the construction of an idealized standard of conduct. Normalization is one of the assemblages of tactics used for social control with the minimum expenditure of force through forms of what Foucault calls “disciplinary power.” I have now discussed how the types of cases I have examined adopt forms of rhetoric. I now conclude overall by discussing the significance of Foucault’s insights as regards the importance of expert knowledges in rural governance. The settlement of rural Australia was facilitated by a variety of “expert forms of knowledges” that allowed the state to govern the family situation from a distance. By the term “expert forms of knowledges” I mean those forms of knowledge based on surveying, cartography, and demography that allowed the family to be “governed from a distance” where direct control was not possible. 57 While these devices were crucial in creating a form of internal government within the family, such as property holding, the institution of marriage and the various programs of governmental support, attention is now directed to how decisions in Family Provision cases were composed through the imbrication of different forms of expert knowledges. I turn here to what Foucault regarded as “economics” to provide a prime instance of this particular kind of expert knowledge. Foucault considered professional forms of expertise, such as economics, 58 to be forms of knowledge that constructed technologies for evaluating certain types of subjects and practices. 59 Foucault regarded economics not as an autonomous realm of exchange, but rather as a form of technology or mode of inquiry to be conducted through examination, measurement and objectification of the productive subject. At the same time, these economic forms of measurement, as part of a complex “assemblage” of practices and technologies, were connected to “knowledge formations” (formal and informal), which were united in the role of governance. Through this linkage at both local and state level the rudiments of the pioneer settler state were established. This way of proceeding towards “economics” instructs us to think of expert knowledges (widely conceived) as “dividing practices” 60 that operate in the case of judgments about farms as a device that separates those who are in need from those who are not. Within this approach in judgments, there is an “examination” of the “needs” of the applicant and the family in general. Seen as an examination, each farming dispute adopts

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one of the types of rhetoric outlined. These, as indicated, were the norm that as the son had worked on the farm he should inherit the farm, and an economic perspective that dictated women should receive minimal amounts to preserve them in the long term. I will now conclude how Foucault’s methodical approach to law texts and to forms of governance underpins key insights into Australian Family Provision law. Firstly, when we conceive of the farm as a vehicle for family governance, we may see that the idea of property enables the state to govern from a distance as regards a “family’s internal property relations.” This approach is in line with some property theorists who argue that we should examine the relationships between stakeholders in terms of how law governs their relationships with each other. 61 These techniques of governance are not neutral but contain social implications. For instance, “accountancy technology” utilized in life estates has enabled substantial farm wealth to be directed to farming sons. The deployment of the capital/income distinction, utilized in a special way for farming properties, constructed women as conduits for the continuation of a male farming line. Likewise, daughters’ efforts on farms were downgraded in the interests of intergenerational continuity. Underpinning these decisions were economic evaluations that male labor was more productive and female labor a hindrance to male continuity in farming. Secondly, I take Foucault’s method to reveal that the Family Provision hearing was a form of “examination” rather than an “inquiry.” As I have indicated, an inquiry is defined in terms of knowledge of events according to both witnesses and criteria of observation. By contrast, an examination is the knowledge an individual holds according to the observation of power holders and a criterion of normality (which Foucault called “normalization”). 62 This process involves the creation of standards to separate out undesirable subjects. An analysis of the cases presented shows that productive labor was rewarded and long-term commitment endorsed by way of allocation of property that supported male continuity in family farming. Thirdly, I reiterate these cases are not presented as forms of “precedents” that yield predictable results in similar situations. Rather I have shown how narratives are adopted which reflects a form of examination rather than as a form of inquiry. Along these lines the words Gillian Douglass are relevant when she writes: the only way one can “articulate” how that judgment is made, is by understanding that what the judges are doing is using their own experience of family practices and norms to assess the family tie between deceased and applicant, taking due account of how that family itself “operated” and what norms it shared. In so doing, the law can be used dynamically to determine which kinds of relationship, and what qualities of emotional or supportive bonds should be recognized as giving

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Seen as an “examination” rather than as a form of inquiry goes further than doctrinal analysis as usually conceived. This is because this way of proceeding draws on forms of power-knowledge as expressed in judgments. As George Pavlich writes, the modern form of examination “can only claim legitimacy by drawing on contextually specific power-knowledge complexes that define how to discover and investigate legal truths.” 64 In the context of family farm judgments, we may observe the role of local power networks. Thus, well-known, the preeminent local solicitor in town would usually act for male litigants exclusively in matters of Family Provision and divorce cases. At the same time, women who deserted their husbands may not have received credit facilities in local stores. Alternatively, women become entrenched in male dependence on account of the social welfare rule about cohabitation. 65 Finally, a woman might be excluded from rural society if she was not seen to have a mental capacity consistent with the support of rural masculine values. 66 In short, solicitors, police and welfare agencies worked to support patriarchal views within farming communities. Fourthly, I have shown that family narratives about property reflect a variety of values. The Family Provision cases I have discussed coincide with the rural commonplace that property should be inherited by those who work on the land, and that land should be preserved to support family cohesion. According to this rhetoric, ideas as to identity or “place attachment” necessarily underpin such decisions, although they are not referred to as such. Concurrently, other ideas are excluded, such as the laudable merit of helping aging parents or assisting widows or married daughters. Fifthly, scholars have interpreted Foucault’s approach to law in various ways. One school of thought is that, with the rise of expert disciplines, law has withered away because it has been colonized by other forms of discourse. The argument developed by Hunt and Wickham was that law acts as a norm shaped by scientific disciplines such as criminology, economics and psychiatry. In this view law has been “emptied out” or even dismantled, and is entering into a process of terminal decline. 67 However, I suggest it is unproductive to generalize about the relationship between law and expert disciplines because each area of law should be considered separately. I consider that Family Provision cases bring about a system of normalization as a result of “epistemic competition.” 68 By “normalization” I mean that sons’ inheritance of farms tended to endure over the long term, with only moderate assets reserved for other members of the family. In line with this approach, family solicitors thus supported affirmation of male power in local communities. It is, howev-

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er, acknowledged that more recent cases have ended the special consideration given to farming sons, as well as the norm that the farm must be kept in the family. 69 As regards what Teubner called “epistemic competition,” I would argue that what results when human sciences are imbedded in law can be understood via what Foucault called a “grotesque cog in the mechanism of power.” 70 In other words, we have what Teubner called “a new reality that is neither a purely judicial construction nor a purely scientific construction.” 71 In other words, a richer examination of these cases notes how along with forms of rhetoric law, imbricates technical sciences such as surveying, statistics, economic data, or accountancy devices. NOTES 1. The term “adequate provision for proper maintenance and support” is an intentionally ambiguous statement, which is considered relative to each individual’s circumstance. In order to determine whether adequate provision has been made, the court will consider the terms “adequate” and “proper” in relation to the applicant’s situation. As such, the terms “adequate” and “proper” must be considered in the context of: the age, sex, condition, lifestyle and situation of the applicant; the applicant’s needs and the resources they require for meeting those needs; the nature, extent and character of the estate and other claims upon it; what the will-maker regarded as superior claims or preferable dispositions. Vigolo v Bostin (2005) 221 CLR 191, 231 [122] (Callinan and Heydon JJ). Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ), cited in Draskovic v Bogisevic [2007] VSC 36 (1 March 2007) [24], Collicoat v McMillan [1999] 3 VR 803, 820 [47]. 2. Gino Dal Pont and Ken Mackie, Law of Succession (Sydney: LexisNexis, 2013), 573. 3. Diane Luhrs, “Intergenerational Family Farm Transfer: Family Members’ Experiences and Rural Social Issues,” Unpublished Doctorate (Monash University, Melbourne, 2017): 47. See also Elaine Barclay, Roslyn Foskey, and Ian Lowe, Farm Succession and Inheritance: Comparing Australian and International Research (Barton: Rural Industries Research and Development Corporation, 2007). 4. Frank Vanclay and Tiina Silvasti, “Understanding the Sociocultural Processes that Contribute to Diversity and Conformity Among Farmers in Australia, Finland and the Netherlands,” in Beyond the Rural-Urban Divide: Cross-Continental Perspectives on the Differentiated Countryside and its Regulation, ed. K. Andersson, M. Lehtola, E. Eklund and P. Salmi (Bingley, United Kingdom: Emerald, 2009), 155. 5. Luhrs, “Intergenerational Family Farm Transfer: Family Members’ Experiences and Rural Social Issues,” 49. 6. Michael Gilding, “Inheritance in Australia: Family and Charitable Distributions from Personal Estates” in the Australian Journal of Social Issues, Vol. 46, No. 3, 2011. Heather Conway, “Where There’s a Will . . . : Law and Emotion in Sibling Inheritance Disputes,” in The Emotional Dynamics of Law and Legal Discourse, ed. Heather Conway (Oxford: Hart Publishing, 2016), 36–37. A number of recent studies have dealt with modern views on inheritance; see for instance Gillian Douglas et al., “Enduring Love? Attitudes to Family and Inheritance Law in England and Wales,” Journal of Law and Society 38 (2011): 245–71; Benjamin White et al., “Estate Contestation in Australia: An Empirical Study of a Year of Case Law,” University of New South Wales Law Journal 38, no. 3 (2015): 880–910. Also see recent ethnographical work by Luhrs, “Intergenerational Family Farm Transfer: Family Members’ Experiences and Rural Social Issues” and Fiona Williams, “The Family Farm through a Succession Lens:

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Towards Understandings of Contemporary Practices and Processes” (Unpublished Doctorate, University of Aberdeen, 2010). 7. To analyze property claims as rhetorical, the term “rhetoric” needs some explanation. Scholars have in the last century expanded on the notion of rhetoric to include popular forms of thinking which have creditability. The meaning of the term “rhetoric” has thus shifted from the time of Aristotle, where it is generally seen as pervasive forms of argument (Aristotle, The Rhetoric of Aristotle [Cambridge: Cambridge University Press, 1909], 1, 2, 138a, 195211, 109a). Here I take rhetoric to mean statements that have or contain the logic of reasonableness or common belief, which is adopted in a form, which constructs an authoritative discourse, which shapes subjects and makes calibrations about what is acceptable and what is illicit. I expand on the notion of rhetoric later. On property narratives, see Carol Rose, “Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory,” Yale Journal of Law & the Humanities 2 (1990): 37–57. 8. David Rose et al., “Ideologies of Property: A Case Study,” Sociological Review 24 (1978): 699–730. 9. Margaret Radin, “Property and Personhood,” Stanford Law Review, 34 (1982): 959. As Radin wrote, there is a relationship between personhood and property. She wrote that “most people possess certain objects they feel are almost part of themselves.” In Radin’s view, such objects are “bound up with the holder” and essential to the self. The loss of these objects harms the individual and interferes with their ability to flourish and develop. 10. Liz Spencer and Ray Pahl, Rethinking Friendship: Hidden Solidarities Today (Princeton: Princeton University Press, 2006), 45. 11. Douglas, Woodward, Humphrey, Mills and Morell, “Enduring Love? Attitudes to Family and Inheritance Law in England and Wales,” 247. 12. Nicola Graham, Lawscape: Property, Environment and Law (Oxford: Routledge, 2011), 14. Along these lines, Carter argues that property ownership represents the struggle to control or repress nature and that the cultural preoccupation with property is symptomatic of a desire to be placed or grounded. See Paul Carter, The Lie of the Land (London: Faber & Faber, 1996), 2. 13. This idea has been associated with John Locke. See Barbara Arneil, “Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism,” Journal of the History of Ideas 55, no. 4 (1994): 591–609. 14. Richard Ashcroft, “Lockean Ideas, Poverty, and the Development of Liberal Political Theory,” in Early Modern Conceptions of Property, ed. J. Brewer and S. Staves (Oxford: Routledge, 1996), 51; Lee Godden, “Nature as Other: The Legal Ordering of the Natural World: Natural Heritage Law and Its Intersection with Property Law and Native Title,” Unpublished Doctorate (Griffith University, 2000): 148–50. In the context of squatting, it was argued that land was made valuable through the application of squatters’ labor. This argument was used to justify their occupation over extensive areas of vacant land. Ironically, it was recognized later in the late nineteenth century that wool was of more value than the land. See Andrew Buck, “Attorney General v Brown and the Development of Property Law In Australia,” Australian Property Law Journal 2, no. 2 (1994): 128. 15. Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class 1780–1850 (London: Hutchinson, 1987), 205–6. 16. For sentiments along these lines see Submission of the Family Law Council to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (1992) Commonwealth of Australia AGPS, Canberra, Vol 30: 76–77. 17. Nikolas Rose and Peter Miller, “Governing Economic Life,” Economy and Society 19, no. 1 (1990): 8. 18. Rose and Miller, 8. 19. Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976 (New York: Picador, 2003), 81–82; Lauren Martin, “Governing through the

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Family: Struggles over US Noncitizen Family Detention Policy,” Environment and Planning A, 44, no. 4 (2012): 866–69. 20. Michel Foucault, The History of Sexuality (London: Penguin, 1978). 21. Michel Foucault, Discipline and Punish: The Birth of the Prison (London: Penguin, 1977), 184. 22. Michel Foucault, “Truth and its Juridical Forms,” in Power, ed. Michel Foucault (New York: The New Press, 2000), 18. In the chariot race of the games, Antilochus crossed the line first, but an indignant Menelaus accused him of a foul at the post, as he challenged him to swear an oath by Zeus that he did not cheat. Antilochus refused to take this challenge, and thereby invited the judgment that he did commit a foul and so had to forfeit the race. As Foucault observed, this is a peculiar way to produce truth, to establish juridical truth—not through the testimony of a witness but through a sort of testing game, a challenge hurled by one adversary at another. 23. Foucault, Discipline and Punish: The Birth of the Prison, 136; George Pavlich, “Legal Judgment and Cape Colonial Law,” Law, Culture and the Humanities 7, no. 2 (2010): 1–12. 24. Foucault, The History of Sexuality, 23; Jan Suntrup, “Michel Foucault and Competing Alethurgies of Law,” Oxford Journal of Legal Studies 37, no. 2 (2017): 317. 25. Suntrup, 318. 26. Atherton, “‘Family’ and ‘Property’: A History of Testamentary Freedom in New South Wales with particular reference to Widows and Children,” 131; Rosalind Atherton, “New Zealand’s Testators’ Family Maintenance Act of 1900—The Stouts, the Women’s Movement and Political Compromise,” Otago University Law Review 7, no. 2 (1990): 202–29. 27. Rosalind Atherton, “Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales,” University of New South Wales Law Journal 11 (1988): 133–57. 28. Malcolm Voyce, “Property, the Governmentalisation of the State and the Working of Power in Rural Australia,” Journal of Historical Sociology, Issues and Agendas 21, no. 2/3 (2008): 331–54; Malcolm Voyce, ”Marriage-like Relationships and Social Security in Australia,” Journal of Social Welfare and Family Law 30, no. 1 (2008): 17–30. 29. Inheritance (Provision for Family and Dependents) Act 1975. 30. See Fiona Cownie and Anthony Bradley, “Divided Justice, Different Voices: Inheritance and Family Provision,” Legal Studies 23 (2003): 580. Cownie and Bradley see the reasoning in Anglo-American jurisprudence as being based on the elaboration of general principles of an axiomatic nature from which necessary solutions can be deduced logically within the premises of a closed system. On the role of discretion in family law see the comments by Parkinson and Dewar. Parkinson says that in the family law area that judgments are “often intuitive rather than reasoned, subjective rather than principled”; Patrick Parkinson, “Reforming the Law of Family Property,” Australian Journal of Family Law 13 (1999): 122–33. Dewar says that family law has no explicit normative and justificatory framework; John Dewar, “Reducing Discretion in Family Law,” Australian Journal of Family Law 11, no. 3 (1997): 309–32. Note these authors are writing about family law but the same may be said of Family Provision law. See also Richard Ingleby and R. Johnstone, “Judicial Discretion Making,” in Thinking About the Law: Perspectives on the History, Philosophy and Sociology of Law, ed. Rosemary Hunter, Richard Ingleby and Richard Johnstone (Sydney: Allen and Unwin, 1995), 174–88, and Mary Glendon, “Fixed Rules and Discretion in Contemporary Family and Succession Law,” Tulane Law Review 60 (1986): 1165–97. 31. It is acknowledged that Foucault avoids talking of rhetoric as he adopted the term “discourse.” However, according to some writers, his approach parallels ideas on modern forms of rhetoric. See Patricia Bizzell and Bruce Herzberg, eds. General Introduction: The Rhetorical Tradition: Readings from Classical Times to the Present (Boston: Bedford/St. Martin’s, 2001), 1127. 32. Vigilo v Bostin [2005] 221 CLR 191 and Malcolm Voyce, “Vigilo v. Bostin: Family Provision and Farming Sons,” Retirement and Estate Planning Bulletin 10 (2005): 149–53.

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33. “Farms, Families and Fights over Wills,” Law Report, ABC program, Melbourne, VIC: 3ABCRN, April 12, 2005, http://www.abc.net.au/radionational/programs/lawreport/2005-04-12/3453104. 34. Dawson v Joyner [2011] QSC 385 (12 December). 35. Daniels v Hall [2014] WASC 152, Par. 12. 36. Susan Hart, “Widowhood and Remarriage in Colonial Australia,” Unpublished Doctorate (University of Western Australia, 2009): 11; Glenda Strachan and Lindy Henderson, “Surviving Widowhood: Life Alone in Rural Australia in the Nineteenth Century,” Continuity and Change 23 (2008): 487–508. 37. For English evidence see Goody 1976: 350 and 353. 38. Hart, “Widowhood and Remarriage in Colonial Australia,” 69. 39. Englefield, Australian Family Provision Law, 112–16. Early Family Provision decisions formulate the claim of the surviving widow as having a “paramount claim.” Recently it has been stated that there is no rule that “the widow takes all” as each case depends on the circumstance. Bladwell v Davis [2004] NSWCA 170 at [12]. See De Groot and Nickel, Family Provision in Australia and New Zealand, 90. See also Burke [1940] QLR 45. 40. Atherton, “‘Family’ and ‘Property’: A History of Testamentary Freedom in New South Wales with particular reference to Widows and Children,” 106. 41. Luhrs, “Intergenerational Family Farm Transfer: Family Members’ Experiences and Rural Social Issues,” 40. 42. Mark Riley, “The Next Link in the Chain: Children, Agri-Cultural Practices and the Family Farm,” Children’s Geographies 7, no. 3 (2009): 252. 43. Roberts v Roberts SCWA4 September 1999, 8568. 44. These features of rural life have been well reported by Margaret Alston, “Farm Women and Their Work: Why is it not Recognised?” Journal of Sociology 34, no. 1 (1998): 23–34; Margaret Alston, “Who is Down on the Farm? Social Aspects of Australian Agriculture in the 21st Century,” Agriculture and Human Values 21 (2004): 37–46; Ian Gray and Geoffrey Lawrence, A Future for Regional Australia: Escaping Global Misfortune (Cambridge: Cambridge University Press, 2001). An important study on the socialization into gender roles is Scharz, 2004. 45. [2015] NSWCA 42 (10 March 2015) at para. 29–30 per Beazley J. 46. Lloyd-Williams v Mayfield (2005) 63 NSWSC 631, [2005] NSWCA 189. 47. De Groot and Nickel, Family Provision in Australia and New Zealand, 74. 48. Re Hodgson [1955] VLR 481. 49. Re Hodgson, 484 per Herring J, the other two judges agreed with this approach. 50. Re Hodgson, 487. 51. Re Hodgson, 24 52. The Full Court per Herring CJ, Martin and Sholl JJ. See Note in 30 ALJ 94. 53. See my earlier comments on rhetoric. I acknowledge here the work of James Boyd White. He importantly draws a distinction between “law as a machine” and law as a social and cultural endeavor. While he concedes law is a method of social control, he argues it is a culture of argument; see James Boyd White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character and Community (Chicago: University of Chicago Press, 1984); James Boyd White, Heracles Bow: Essays on Rhetoric and the Poetics of Law (Madison: University of Wisconsin Press, 1985). 54. I acknowledge my debt here to Neal Milner and his study of leaseholder’s land disputes in Hawaii; see Neal Milner, “Ownership Rights and Rites of Ownership,” Law and Social Inquiry 18 (1993): 227–53. 55. Cownie and Bradley, “Divided Justice, Different Voices: Inheritance and Family Provision,” 580; Bonaventura de Sousa Santos, “The Law of the Oppressed: The Construction and Reproduction of Inequality in Pasagada,” Law and Society Review 12 (1977): 14, 17 56. See former discussion and critique of Dewar, “Reducing Discretion in Family Law,” and Parkinson, “Reforming the Law of Family Property.”

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57. Malcolm Voyce, “Property and Governance of the Family Farm in Australia,” Journal of Sociology 4, no. 2 (2007): 131–50; Peter Miller and Nikolas Rose, “Governing Economic Life,” Economy and Society 19, no. 1 (1990): 1–31; Bruno Latour, Science in Action: How to Follow Scientists and Engineers through Society (Cambridge: Harvard University Press, 1987), 219–32. 58. Andrew Barry, Thomas Osborne and Nikolas Rose, eds. Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government (Chicago: University of Chicago Press, 1996). This approach builds on the notion that the “economy” was essential to the emergence of a new form of political rationality which Foucault called “governmentality,” which linked the management of the self, the family and the state. 59. Mitchell Dean, “Liberal Government and Authoritarianism,” Economy and Society 31 (2002): 37–61. 60. Examples are the mad from the sane, the sick from the healthy, and the criminals from the “good boys.” See Michel Foucault, “Afterword: The Subject and Power,” in Michel Foucault: Beyond Structuralism and Hermeneutics, ed. Hubert Dreyfus and Paul Rabinow (Brighton: Harvester, 1982), 208. 61. Gregory Alexander, “Governance Property,” University of Pennsylvania Law Review 161, no. 7 (2012): 1860. 62. Foucault, Discipline and Punish: The Birth of the Prison, 136. 63. Gillian Douglas et al., “Enduring Love? Attitudes to Family and Inheritance Law in England and Wales,” Journal of Law and Society 38 (2011): 245–71. 64. Pavlich, “Legal Judgment and Cape Colonial Law,” 240. 65. Voyce, “Marriage-like Relationships and Social Security in Australia,” 17–30. 66. See the story of Catherine Currie in Alisa McLeary and Tony Dingle, Catherine; on Catherine Currie’s Diary 1873–1908 (Melbourne: Melbourne University Press, 1998), 106–8. On the colonial construction of madness, note Catherine Coleborne, Insanity, Identity and Empire: Immigrants and Institutional Confinement in Australia and New Zealand, 1873–1910 (Manchester: Manchester University Press, 2015). 67. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994); Pat O’Malley and Marianna Valverde, “Foucault Criminal law and the Governmentalization of the State,” in Foundational Texts in Modern Criminal Law, ed. Markus Dubber (Oxford: Oxford University Press, 2014), 326. 68. Gunther Teubner, “How the Law Thinks: Toward a Constructivist Epistemology of Law,” Law & Society Review 23, no. 5 (1989): 749. 69. Malcolm Voyce, “The Impact of Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm,” Australian Journal of Family Law 7 (1993): 191–224. 70. Michel Foucault, Abnormal: Lectures at the College de France: 1974–1975 (New York: Picador, 1999), 11; Jan Suntrup, “Michel Foucault and Competing Alethurgies of Law,” Oxford Journal of Legal Studies 37, no. 2 (2016): 318. 71. Teubner, “How the Law Thinks: Toward a Constructivist Epistemology of Law,” 750; Suntrup, 319.

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Index

Aboriginals: dispossession of, 13, 14, 36–38, 40–42, 43n8; settler views of, 39, 41–42 accountancy, 4, 47, 83–86, 95; rural practices, 95–99, 103–104, 147 agrarianism, 27, 38, 57, 66n99, 139, 140, 147, 149n14 Alexander, Gregory, 70 alliance, deployment of, 8, 10–11, 70 Archer, Archibald, 50 Atherton, Rosalind. See Croucher (Atherton), Rosalind

domestic labor, 24, 49, 56, 76, 77–79, 144 Douglas, Gillian, 167 Ellickson, Roger, 30

banks, 15, 59, 104, 136 biopower, 3, 5, 41 British investment, 57, 83, 102, 104 California, 30 capitalism, 24, 55, 85, 104, 137. See also settler capitalism Carnegie, Gary, 83, 97 Casper v Casper, 74, 76 Clare, Stephanie Deborah, 8 colonial ethics and laws, 6, 10, 39, 50 colonial rule, 13, 42n3, 49 Cotterrell, Roger, 87 Country Women’s Associations, 58 Croucher (Atherton), Rosalind, 115–116, 162 Cumpton v Cumpton, 74–75 Daniels v Hall, 161 daughters of farmers, 11, 22, 118–120, 121–122, 125, 163–165 Dawson v Joyner, 161 disciplinary power, 3, 4–5, 158, 166 Discipline and Punish, 3, 159 divorce, 23, 51, 56, 67n108, 143–144, 155; fault and no-fault, 27, 70, 80n16. See also matrimonial property

facilitative devices, 54–55, 57, 88, 124 family: as basis of society, 12, 70; in state policy, 4, 9, 50–51, 52, 138–139 family farms, 1, 54, 118–121, 138–139, 165 family law, 70–71. See also Family Provision law; matrimonial property Family Law Act (1975), 70, 71–72, 78, 89 Family Law Court, 58, 82n58 Family Provision law, 91, 113–127, 143–144, 155, 159–160, 165–169, 169n1 family trusts, 14, 84, 86, 87–90, 102–103, 110n127, 143. See also life estates; station properties fidelity devices, 4, 47, 57, 85, 139, 142, 145–146 Fitzpatrick, Peter, 29 Foucault, Michel, 2; and family, 4–5, 12, 69–70, 158; and governance, 50, 83, 137, 157, 166; and law, 2–3, 12, 29, 158–159, 168–169; methodology, 40; and power, 2–3, 8, 41, 52, 84, 137, 141, 145, 147, 158, 169; and sexuality, 1, 6–8, 9–11, 37, 70 Galanter, Marc, 124 Galway v Tomkins, 77 gender roles, 24–26, 51, 82n57, 103, 120, 127, 163 genealogical approaches, 27, 40, 41, 137 Golder, Ben, 29 Gorton v Parks, 117–118

205

206

Index

governance, 84; family, 4–5, 69–70, 167; property, 51–52, 54, 58 Governmentality, 3 governmentality, 3–4, 83, 141, 157 governments. See state (government) Harris, Cole, 42 Hassell case, 94 The History of Sexuality, 8, 9, 26 Hungerford, C., 96–97, 99 Hunt, Alan, 147, 168 identity and farm, 21, 156–157, 165, 168 intergenerational transfer, 21–23, 90, 120, 122, 124, 156, 157, 165 Kaine and Kaine, 77 law: approaches to, 28–30; Foucault’s view of, 2–3, 12, 29. See also Family Provision law; property law lawyers, 89, 90, 147 Lee Steere v Lee Steere, 72 liberalism, 28, 63n58, 84, 86, 87, 146 life estates, 14, 90–93, 107n56–107n59, 124, 143, 162–163, 167, 169 Macphillamy v Macphillamy, 77 Maori land, 35 Marxist theory, 24, 28, 137, 138 masculine attributes, 24, 27, 55, 71, 125, 144. See also gender roles matrimonial property, 71–76 McBride v Hudson, 100–101, 103 McGrath, Ann, 39 McIntyre v McIntyre, 99–100 moral citizenship, 50, 52, 55, 146 Morgensen, Scott, 41 Moshing case, 121 Murphy v Murphy, 123 neoliberalism, 27, 31n19, 33n43 Neu, Dean, 42 New South Wales, 58, 115, 116, 138, 155 New Zealand, 35, 114–115, 116 Norway, 30 Parker case, 73–74, 75

patriarchy, 8, 10, 18n65, 24–25, 51, 52, 58, 115, 125, 127, 132n87, 135, 137, 143–144, 147, 156, 168 Pike and Pike, 74, 75 property device concept, 4, 47–48 property law: Australian practices, 13, 53, 57, 89, 95, 103, 135; English practices, 11, 37, 53, 86–88, 94–95 Psychiatric Power, 5, 8 race: in colonial settlement, 10, 36–37; in Foucault’s writing, 9, 10, 18n59, 37 Re Hodgson, 164–165 retirement, 22, 23 rhetoric, 1, 126, 156, 160, 165–166, 170n7 Salmond v Osmond, 163 scientific developments, 53–54, 139, 146 Scotland, 97 Settlement Acts, 58 settler capitalism, 15, 83, 103, 135–136 settler colonialism, 14, 40, 42n3 sexuality: deployment of, 2, 6–7, 8, 9–11; and gender, 26, 32n36; and race, 37, 39, 42; and space, 6–8 Smith, Carole, 29 social structures, 48–49, 51–52 Soldier Settlement schemes, 57, 140 sons of farmers, 1, 22, 52, 113, 118–122, 123, 124–126, 127, 156, 160–162, 165, 168–169 South Australia, 100 sovereign power, 4–5, 8, 141 spaciality, 48, 52–53, 56, 66n94, 77 state (government): control at a distance, 83–85, 136, 137–139, 140–142, 167; and family, 4, 9, 50–51, 52, 138–139; and property, 47–49, 56–58, 116, 141; and society, 147–148 station properties, 98–101 Stewart, Miranda, 70 Stoler, Ann, 9, 10, 37 subjugated knowledges, 28 Succession Laws (report), 125–126

Index technologies of power, 47, 78, 84–86, 104, 135. See also scientific developments Testator’s Family Maintenance Act (NSW), 115 Torney v Shalders, 121–122 Torrens registration system, 53 trusts. See family trusts United States, 35, 113 Victoria (state), 95, 97, 117 Victorian Farmers Federation, 125 Victorian Law Reform Commission, 125–126 Victorian period ethics and beliefs, 6–7, 50–51, 51–52, 65n79, 144

207

Vigilo v Boston, 126, 160 Western Australia, 90, 119–120, 146 Wickham, Gary, 147, 168 widows, 22, 52, 85, 92, 102–103, 114–115, 119, 123, 124, 143, 162–163, 172n39 Wilkinson, Roger, 21, 23 Wolfe, Patrick, 3, 40–41 women, 22, 32n23, 132n87, 140, 145, 167; status of, 49, 55–56, 71, 78–79, 123, 143–144. See also daughters of farmers; gender roles; widows Women on Farms report, 56, 82n57 Young v Young, 119–120, 122

About the Author

Dr. Malcolm Voyce is professor of law at Macquarie University involved in teaching succession law, taxation law and law and religion. Dr. Voyce has recently published Foucault and Buddhism (2017) and Muslim Integration Pluralism and Multiculturalism in New Zealand and Australia (edited with Erich Kolig) Lexington Books, 2016.

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