I have long been supportive of the need for a Treaty between indigenous and non-indigenous Australia and those that know me know I am writing in what little spare time I have, a book about why I think so. The book is aimed at convincing non-Indigenous people as I know most Indigenous people want one.
Yet I’m pleased that the need for a Treaty is at the centre of the recommendations of the 2017 National Constitution Convention outlined in the “Uluru Statement from the Heart”.
The statement acknowledges Aboriginal and Torres Strait Islander tribes were the first sovereign nations of Australia who have lived here in legal terms from “time immemorial”. This was sovereignty in a sacred sense and speaks to an ancestral tie with the land which was never ceded and which co-exists “with the sovereignty of the Crown”.
How could it be otherwise, the statement asks, for people who lived here for 60 millennia which could not disappear from world history “in merely the last two hundred years”?
Changing mere words in the constitution won’t fix that, but substantive change and structural reform might.
Despite not being innately criminal, Indigenous people are the most incarcerated in Australia, showing the “torment of our powerlessness”, they said.
In order for Indigenous people to “take their rightful place” in this country, the Convention has asked for a “First Nations Voice” in the Constitution.
That would take the form of a Treaty, or “makarrata”, a Yolgnu (NT) word meaning “the end of a dispute and the resumption of normal relations” or in the convention’s words “the coming together after a struggle”.
The convention has called for a Makarrata Commission to supervise a process of agreement making and “truth telling about our history”.
Harking back to the Referendum, in 1967 Indigenous people were counted, “in 2017 we seek to be heard”.
“We invite you to walk with us in a movement of the Australian people for a better future,” the final sentence reads.
Agreement and truth sound like a better future to me. I’m walking.
The word budget has a long association with money. It comes from the Latin “bulga” which became Old French “bougette”, as a diminutive of “bouge” which was a type of leather bag. The word originally described a pouch or wallet and later by metaphor its contents. In the mid 18th century, the British Chancellor of the Exchequer, in presenting his annual statement, would “open the budget” and only in the last 150 years would the term be extended to other finances.
According to the Merriam Webster definition of the word, the government definition is merely an example of the fourth meaning, namely “a statement of the financial position of an administration (as of a nation) for a definite period of time based on estimates of expenditures during the period and proposals for financing them.”
Merriam Webster’s lack of attention on the government aspect of the budget is due to its American focus, where the budget is not the centrepiece of the political administration but rather administered by Congress. Australia, which follows the Westminster tradition, has kept the budget as a government tool even if unlike Britain it has dispensed with the “bougette”.
Though budgets are ephemeral things subject to huge variation and change within a short period of time, they are analysed to great extent as a health monitor of the government. Australia has been running a current account deficit since the Global Financial Crisis of 2008 and no government has been able to rein in spending within its means since.
The Rudd-Gillard budgets of 2008-2013 had to deal directly with that crisis, though it was helped by a motoring Chinese economy. Labor were continually castigated by the right-wing commentariat casting doubt on the “credible return” to surplus which Treasurer Wayne Swan would conveniently place in the fourth and last year of forward estimates.
One of Tony Abbott’s many memorable fear campaigns against that government was the “debt and deficit disaster” (swapping three words for alliteration). Labor spending was planting a “debt bomb”, Abbott and his supporters said, which would explode at some future time. This was stealing from the future, which was correct, but which would have had a lot more credibility had Abbott too not stolen from the future by taking a wrecking ball to carbon pricing.
Abbott was eventually turfed out of office as incompetent but those that followed have a lot to do to repair his damage. There is still no price signal in carbon and its lack was the elephant trading scheme in the room of Malcolm Turnbull and Scott Morrison’s second budget last night.
The media has dubbed it a “Labor lite” budget, spending big on health care, education and infrastructure and paying for it by taxing the banks. But its failure to understand the role of carbon in our economy is hobbling Morrison’s equally Labor-like promise the budget was a “credible path back to surplus”. Like Swan, Morrison predicted this would happen in four years but given Turnbull’s recent public commentary against an ETS it is just as difficult to believe about 2021 as 2016.
The fact is that since white occupation, Australia has been the lucky country, living beyond its means. It did that through the wool market and convict labour for the first 50 years , then plundering mineral wealth thereafter while subsidising agriculture with cheap Indigenous labour.
Australia’s last budget surplus was when the price of iron ore, and to a less extent coal, went through the roof. Though the prices for both have increased in the last 12 months, even the government says it is “prudent to assume” neither will return to massive revenues in the future – especially coal -unless they can somehow deal with carbon emissions.
A day before the budget, ABC Four Corners program exposed the energy crisis as a failure in public policy. But a night later its budget analysts in Canberra more or less ignored the issue.
But from talking to small and big businesses I know energy reliability and cost is becoming the single biggest burden on the Australian economy. Government plans such as Snowy 2.0 and putting a reserve price on gas will barely scratch at the surface. Cyclone Debbie was seen as a one-off disaster but one of the predictions of climate change is for stronger and deadlier storms so another Debbie, Yasi or worse in the coming years is hardly out of the question.
Solar and wind barely merited a mention in the budget but they will surely be the key to solving the “debt and deficit disaster”. Australian coal is the best in the world but it must remain in the ground for now. Similarly gas is also just a short to medium term solution and is unlikely to expand out of Queensland given the social licence issues which the government ignores in its mantra to “produce more gas”.
Funding ARENA – the Australian Renewable Energy Agency -and putting over $3 billion of debt and equity to support low emissions projects through the Clean Energy Finance Corporation are great initiatives out of the leather bag. But they merely set the framework. The budget mechanism is carbon trading and until that is brought back Abbott’s zombie energy policies continue to walk the land.
With Native Title changes in the news again, it seems timely to look back on the 25th anniversary of the Mabo High Court case that started it all. In 1992 a High Court case was heard for a group of remote Torres Strait Islanders that would have profound impact on land law in Australia, indeed in all settler nations. The case, known as Mabo for its most well-known plaintiff, built on a rich judicial heritage to establish native title in Australia. The story that follows is a greatly condensed summary of Bryan Keon-Cohen’s A Mabo Memoir” with the author being one of the lawyers for Mabo and his fellow plaintiffs in a case that lasted 10 years.
The landmark decisions of US Chief Justice John Marshall in the 1820s and 1830s established the modern doctrines followed in New Zealand and Canada that recognise native title but no case in Australia succeeded until Mabo. Mabo was built on the Gove case of 1971 which was a legal failure but a pioneering case never appealed to the High Court. The 1836 New South Wales Supreme Court proposition that no law existed in the colony before 1788 was upheld by the Privy Council in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and was never debated or challenged in the constitutional debates of the 1890s.
In the Gove case (Milirrpum v Nabalco) the Yolgnu people of Arnhem Land argued the common law recognised pre-existing traditional rights to land founded on prior occupation, customs and traditions, enforceable even after British colonisation. Justice Blackburn decided no such doctrine was known to Australian law “for want of authority to support it” though he admitted customary laws were a recognisable system of law. The case did eventually lead to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which recognised traditional rights to land in the Territory.
However in Queensland the Bjelke-Petersen government went in the opposite direction proposing to remove the minimal protection of Aboriginals and Islanders to reside on lands gazetted as “reserves” under the Land Act 1910 (Qld) and it was the Torres Strait Islanders who led the charge against that move.
About four to five thousand people live in the Torres with less than 500 on the western island of Mer (renamed Murray Island by the white newcomers). Rich volcanic soil allowed Meriam residents to do gardening with associated customs and traditions, which became the core of the Mabo case. Cultivation of bananas and yams was associated with a local cult called “Bomai-Malo” which featured prominently in evidence.
Mer was not included in Cook’s 1770 claim of possession of eastern Australia. Christianity arrived with the London Missionary Society one hundred years later and over 30 years their violent evangelical Christianity profoundly impacted Meriam practices. The LMS arrival “The Coming of the Light” is still celebrated every July 1, a fact Queensland used to argue Meriam customs had vanished along with traditional rights to land.
Between 1872 and 1879 the Torres Strait Islands were annexed to Queensland through instruments issued by Whitehall and Brisbane, administered through Thursday Island. This late arrival meant Islanders were subject to fewer destructive influences than the mainland though the Queensland system soon affected all aspects of Islanders’ life. The first Government Resident John Douglas was appointed in 1886 and when he died in 1904 control passed to the Aboriginal Chief Protector whose powers were established under the 1897 Protection Act making islanders subject to the same extensive and restrictive controls as those on mainland Aboriginal reserves.
After a three-year strike on Mer in the 1930s was ended by the arrest of island ringleaders a new Torres Strait Islanders Act 1939 vested some local control in councils but maintained the repression of prior laws and Queensland departmental control. By-laws established offenses such as fornication, adultery, “message-carrying” and domestic squabbling, with fines, imprisonment and banishment from the island for “offenders”. The Department established “birth-to-death” cards which contained an ongoing record of most aspects of person’s life, cards which were used to great effect to attack Eddie Mabo in the court case.
In 1980-81 the Bjelke-Petersen government decided to repeal the 1939 act, revoke island reserves and introduce Deeds of Grant in Trust (DOGITs) in their place. This was Joh’s attempt to head off land rights, but this decision helped trigger the Mabo case.
Eddie Mabo was born on Mer on 29 June 1936 but his mother died just five days later. Mabo claimed he was eventually adopted by her brother Bennie Mabo. When Bennie and his wife died without producing offspring of their own, Mabo claimed to inherit his land under Meriam custom and tradition, a claim hotly contested by his cousin and adoptive sister and eventually denied at the trial. Mabo was educated in Meriam lore, traditional land management, Christianity and traditional beliefs. In 1956 Mabo pleaded guilty to an offence against the community by-laws which contributed to his alienation from Meriam leaders and he left the island first to Thursday Island and then to the mainland. In 1959 then a 23-year-old labourer at Halifax he married 16-year-old Bonita, a descendant of Kanakas from Vanuatu.
Mabo became involved with Indigenous organisations in Townsville and established a Black Community School there in 1971. Working as a gardener at James Cook University he began researching his background and discovered that under Australian law he did not own his traditional land at Mer.
As the Bjelke-Petersen rammed through its DOGIT legislation it was opposed by Aboriginal and Islander groups who contested the autonomy of trustees to lease DOGIT areas to outsiders. Eddie Mabo and Noel Loos organised a lands rights conference in Townsville in 1981 where Mabo spoke about traditional land ownership on Mer. Reverend Dave Passi also spoke of his ownership of Meriam land which he said was threatened by the DOGIT system. The conference discussed a possible High Court challenge which Barbara Hocking of the Melbourne Bar said might prompt political action even if unsuccessful. A group of Mer delegates decided they would take a Gove-type case to the High Court. This was purely about land rights and not an issue of independence or sovereignty. Other court cases had found sovereignty not justiciable in an Australian court.
In 1982 five plaintiffs representing the Meriam group (Mabo, his elderly aunt Celuia Mapo Salee, brothers Dave and Sam Passi and Councillor James Rice) handed a 32-page statement of claim to the High Court based on relevant facts, law and the detailed testimony about their gardening and fishing activities with proceedings served against Queensland and the Commonwealth. A fact-finding trip to Mer uncovered records of a 1913 sale of a block of land by an Islander to Queenslander for use as “Jail House, Court House and Recreation Reserve” and also a Murray Island Community Council and Court which operated from the 1890s.
In August 1982 Queensland issued a summons to strike out the claim as not worthy of consideration accompanied by an affidavit sworn by Patrick Killoran, Director of Queensland’s Aboriginal Affairs department. Killoran claimed the “former modes of life” of Meriam people was “fundamentally and irrevocably modified by outsiders”. The plaintiffs counter-applied to have the case heard immediately referred to the full High Court for hearing. Neither application succeeded in court and the parties compromised on an agreed statement of facts and questions of law to be presented to a single High Court judge. After two years however, Queensland agreed to none of the facts making a complex and lengthy trial inevitable.
A 1984 directions hearing achieved little other than a Queensland request for the plaintiffs to amend the statement of claim, an attempt to bury them in paperwork. But with Queensland’s legal options dwindling the Bjelke-Petersen government decided to pass legislation to stop it dead. Claiming the case challenged Queensland’s annexation of Mer (it didn’t), the government passed the Queensland Coast Islands Declaratory Bill 1985 to vest the island in the Crown and free it from “any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation”. Once passed, Queensland’s lawyers amended their case with new material which relied on the new act as a complete defence to the action.
In response the plaintiffs issued a “demurrer”proceeding designed to have the High Court declare the Act unconstitutional. Their grounds were that the 1985 parliament could not retrospectively change the meaning of the 1879 law, Queensland did not have the power to pass laws to extinguish traditional land rights, and it did not address the Commonwealth-controlled “reefs and seas”. However in the end they succeeded only because the law was inconsistent with the Racial Discrimination Act 1975. Remaining under High Court jurisdiction, the matter was referred to the Queensland Supreme Court in 1986 to establish findings of fact.
The first phase of the trial under Justice Martin Moynihan came in late 1986 with the plaintiffs suffering blows of illness of judge and lawyers, and the withdrawal of the Passi brothers from the case (with Mabo’s aunt now dead that left just him and Rice as plaintiffs). Queensland’s objections to Mabo’s testimony as hearsay were so frequent it broke the flow of evidence and the judge decided defer all rulings on admissibility until the end of the evidence. Moynihan ruled Mabo’s witness statement inadmissible meaning his lawyers had to rely solely on oral evidence. Mabo did describe the legend of octopus-shaped Malo who designated the eight tribes into eight distinct parts of the island with inheritance passing down the eldest male line.
The court adjourned until early 1987 but was abandoned when the plaintiffs convinced Toohey J to hear the demurrer in the High Court in what would become known as Mabo (No 1). There was another directions hearing which left the matter of evidence in Moynihan’s hands but established that some traditional evidence was valid. Ten days later Moynihan decided to “let it all in and rule at the end”, in other words let High Court decide on admissibility, a decision the plaintiffs supported and Queensland did not appeal.
Mabo (No 1) was served in the High Court in March 1987 with a directions hearing in April. The parties agreed that if the demurrer failed the case would be over but if they did strike down the Declaratory Act the trial must continue. A full High Court was scheduled to hear the demurrer case in 1988. That allowed enough time to study the case history of “terra nullius”. Australian law was based on the Privy Council 1889 case Cooper v Stuart about English law relating to estates and had nothing to do with Indigenous people in colonies. The question did English common law recognise pre-existing traditional land rights when introduced into the Straits in 1879 would be the core question in Mabo (No 2).
Mabo (No 1) was almost undone on Day 1 when J Gerard Brennan admitted his son Jesuit priest Frank Brennan was an adviser to Aboriginal people but the plaintiffs breathed a sigh of relief when he was not asked to disqualify himself. The plaintiffs argued the Queensland Act was inconsistent with Commonwealth laws especially the 1975 Racial Discrimination Act. Queensland argued native title was extinguished in 1879 when, according to Queensland’s Solicitor General, “there was a peaceful annexation of people who were, at the time, thought to be uncivilised and who were thought not to have an organised society with an established system of law.” However the court did not accept Queensland’s assertion it could not be re-examined by re-assessing historical facts.
Queensland’s lawyers told the court “they were instructed” (which was code for “they would rather not say this”) there was no record of any by-law approving the island courts. The plaintiffs replied the court did exist and it made decisions which were signed off by the government. The hearing lasted three days and then there was a nine month delay for the outcome.
The case succeeded 4-3 with Justices Brennan, Deane, Toohey and Gaudron agreeing the Declaratory Act was racially discriminatory. The Mabo (No 1) decision meant the claim could continue though whether it would succeed remained open. It was also an important decision for native title as it meant those interests must be dealt with on an equal footing as all other equivalent property rights.
Preparation for Mabo (No 2) helped by another development, a successful Indian rights case Guerin, handed down by the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth now hardened its interest in the case’s offshore claims and threatened another demurrer case about proprietary rights on the high seas. After two and a half years the Brisbane Supreme Court trial resumed in front of Moynihan J in May 1989. Queensland used its detailed and intrusive knowledge of Islander family details to undermine Mabo’s testimony especially about claimed inheritance and adoption.
Mabo disputed records that showed him returned to his birth father in 1947 however Moynihan J preferred the written record over Mabo’s evidence. Queensland undermined his testimony to be a descendent of traditional leaders or “Aiet” which the state showed was a personal name, a fact that contributed to the judge disbelieving Mabo’s testimony about his own interests. But while Mabo’s personal claim was jeopardised his evidence on the system was untarnished and compelling. For the plaintiffs’ case it was the recognition of the system upon which rights and interests were founded that was the critical question for the High Court.
On May 22, the court moved from Brisbane to Mer so Mabo could point out the boundary-markers. They arrived in the middle of an industrial dispute with island municipal garbage collectors on strike forcing Mabo and his supporters to cart rubbish away on a Sunday so the judge would not see the mess. On the first day Mabo showed a mound of rocks to the court which he said were boundary markers and the court visited the nearby island of Dawar which had an area of claim of plaintiff James Rice.
The following morning Moynihan J opened court at the community hall calling it an “historic occasion” and he said sitting there helped him understand the evidence about Murray Island, its people and culture. The court heard 11 witnesses and then moved to Thursday Island where another five witnesses were heard. Meriam evidence touched on aspects of customs and traditions of land and sea, ownership and stewardship, and boundaries and Island Court disputes. It also revealed islander opposition to plaintiff claims, especially Mabo’s on account of him leaving the island many years ago. However encouraged by events in Mer, Dave Passi applied to be re-admitted as plaintiff though brother Sam stayed out due to fear of costs. Dave Passi’s readmittance was critical as Moynihan’s Determination would later show, because only his claims had a factual foundation solid enough to proceed to the High Court.
Another significant moment came in July 1989 when the plaintiffs dropped the claim against the “outer seas” outside the jurisdiction of Queensland which dismissed the Commonwealth from the proceedings. Evidence concluded in Brisbane with the testimony of Rice and Passi. Rice was a retired school teacher, an island councillor and an Assembly of God official who supported Mabo’s territorial claim but denied Mabo was an island leader. Queensland claimed Rice was subject to a tenancy agreement but Rice could not recall ever paying anything to anyone. Anglican minister Dave Passi was the final witness. Passi said his ministry was influenced by traditional custom “Malo’s Law” which he said was a “law of preservation of land, soil, trees”. Passi said he could see God sending Malo to the island “to prepare the place for the Coming of the Gospel.” For Passi the ancient Bomai-Malo cult with its laws of Malo and the LMS Coming of the Light in 1871 fused together in one philosophy. His oral testimony of how land was transferred by the Passi clan was the clearest display of traditional landholding arrangements and when asked how he “inherited interests” to his land, he replied “I am a Passi. I am born into it, and I am born into the ownership of the land.” That ownership did not extend to the women. “If my sister wants to use the land, she may use it, but will not own it.” It was patriarchal but it did establish to the court it was a recognisable system of law.
Among the other witnesses in Brisbane was Meriam elder Henry Kabere, a close friend and supporter of Rice and a huge source of traditional knowledge. Kabere described a story his grandmother told him of a gunship that landed with the LMS in 1879, which fitted the narrative of the plaintiffs that the area was colonised by conquest not settlement. Kabere also testified the Island Courts used Malo law in their decision-making, including island adoption of extended families members. Expert witness Dr Jeremy Beckett, who studied on Mer, agreed most social interaction on the island was based on kinship. Dr Beckett also agreed the Malo precepts were a system with “fairly simple principles” but it was “in the majority of cases, effective”. It was also the only thing the LMS did not try to suppress or affect the rules and regulations.
On July 3, the plaintiffs withdrew part of its claim for Eddie Mabo based in the fact they could not prove he was a leader, the same day as Queensland began its defence. Queensland denied the existence of traditional rights to land, and even if they did exist they were extinguished by the extension of sovereignty in 1879. Nor, they said, was Mabo adopted by Benny Mabo and had no right to Benny’s land. Their historical evidence included the infamous exhibit 80, 42 massive bound volumes of archival records and the whole of the Island Courts record, (which suited the plaintiffs but the judge called it “terrifying”.
Queensland’s most significant witness was former DAIA director (1964-1985) Patrick Killoran. Reportedly close to Bjelke-Petersen, his Department ran as a secretive and defensive government agency exercising almost total control of Indigenous lives in the state. Killoran spoke extensively of the paternalistic administration of island life and tendered the social history cards that governed all aspects of islander lives. The thrust of his evidence under questioning was to avoid any concessions that might preserve native-title rights using obfuscation and irrelevancies. Killoran dismissed the Island Court as dealing with “minor stuff” and would not conceded it fixed land disputes on traditional island principles. Even where evidence was found of a government land payment for a kindergarten in 1968, Queensland claimed this was an ex-gratia payment to keep Islanders quiet and comfortable. Killoran said it was Crown land and the word “purchase” in the correspondence was merely “intended by my Department to be a convenient shorthand method of referring to those persons’ loss of use of the land concerned.” Killoran also dismissed Mabo’s adoption calling it “shuffling of kiddies” to get the maximum child benefit payment.
On completion of the evidence Moynihan J asked for written submissions on “the crunch issues” – the existence and nature of “the system”. The plaintiffs submitted 150 pages drawing an analogy with the common law system as it evolved over 500 years. “Few of its details are the same… Yet we have no difficulty in dealing with the system as a continuity over such a vast period, and despite such vast changes”. Queensland produced a lengthy document in reply disputing the facts of the case which had to be replied to before the judge produced his own fourth version of each numbered fact in his Determination.
Oral submission then began in September 1989. Queensland argued the island court records showed little about a system with no reference to Malo’s Law. It said Britain did not recognise native custom in the Torres Strait Islanders in 1879 because there was no system in place “to deal with the problems of administration”.
Justice Martin Moynihan’s 497-page Determination of Facts was handed down in Brisbane on November 16, 1990. The key chapter was on Murray Islands Society and Land which the High Court focussed on rather than the individual claims. Moynihan J acknowledged the islanders strong sense of relationship to their islands saying “they have no doubt that the Murray Islands are theirs” which was later relied on by one of the High Court judges. Moynihan noted the knowledge of boundaries and the shame of trespass were cultural attitudes “rooted in the pre-contact past”. He rejected the plaintiff rights to the reefs and reef flats ruling out the tidal zone from the high-water mark. He also rejected Mabo’s claim of adoption and therefore his personal land claim. However he agreed the plaintiffs’ traditional rights and interest in land founded on Meriam customs and traditions had survived in legally recognisable form.
Neither side appealed the Determination and the case proceeded to the High Court for final appeal. The common law precedent standing against the plaintiffs was a Privy Council decision on 1889 Cooper v Stuart which purported to confirm the legal assumption underpinning colonisation: Australian colonies were settled not conquered by Britain and the doctrine of terra nullius (land belonging to no one) applied. However while terra nullius provided legal and policy context, it was rarely mentioned in court. Mabo was set for a three-day hearing in May 1991 (and took four), a lengthy time for the High Court and an indication of its importance as a test case. The key issue would be what happened to traditional rights on annexation.
The biggest difficulty the plaintiffs had in trial was in determining whether the claims were individual or communal which encouraged Queensland to claim Moynihan J’s findings were inadequate to allow legal argument to proceed. However Queensland had problems too, its argument no ordered system of land tenure survived annexation did not impress the judges. They accepted Moynihan’s Determination that possession did exist under an identifiable system. Deane J asked Queensland’s team if the Islanders’ status was trespassers after annexation. And after some squirming they admitted Gaudron J’s point “the native population could have lawfully been driven into the sea”. This was not a good look for Queensland which had stressed the state had protected the Islanders on a reserve created for their benefit.
Queensland mentioned the Irish case of Tanistry, where land held under the Tanistry tenure was inherited by the deceased eldest son. The state argued this custom was abolished by the introduction of the English Common Law to Ireland, as were the customs and traditions of Mer in 1879. Queensland also attempted to show that Marshall’s American judgement in Johnson v McIntosh gave the sovereign power free right to terminate right of occupancy. When challenged by Brennan J this was not an “enabling doctrine” for the common law, Queensland’s solicitor-general Geoff Davies reluctantly agreed that “unfortunately the position seems to have been very much in those days that might was right and that those who controlled the country determined what the rights were”.
Following the hearing Eddie Mabo was diagnosed with cancer and his health declined rapidly. He died in Townsville on January 21, 1992. After his grave was vandalised by unknown offenders his family eventually re-buried him on Mer. His death left just two plaintiffs Dave Passi and James Rice to face the High Court judgement on June 3, 1992. Five judgements were delivered, two joint decisions, two separate decisions by Brennan and Toohey JJ (all supporting the plaintiff) and a dissenting decision by Dawson J. Brennan J’s was regarded as the most comprehensive and influential judgement. The six assenting judges agreed the common law recognised an enforceable traditional property right based on provable customs and traditions – native title – which was not extinguished by British sovereignty in Australia or the introduction of British common law in each of the colonies. However being a subsidiary of the ultimate title of lands vested in the Crown at the time of colonisation, native title could be extinguished or impaired by subsequent Crown acts especially in the granting of fee simple titles or commercial leases to settlers. At a stroke this decision saved the commonwealth, states and grantees from Indigenous claims of invalidity and compensation.
Mason CJ later said the doctrine of terra nullius was not central to the decision nor was there any challenge to British sovereignty. He also denied the court was influenced by writings of Henry Reynolds, especially in his 1987 book The Law of the Land. The central question was whether native title was recognised by the common law at the colonisation of a “settled” country to which the answer was “yes”. He said settlement was appropriate, because “the indigenous inhabitants were regarded as barbarous or unsettled, and without a settled law.” However Brennan, Deane and Gaudron JJ rejected terra nullius as outmoded and unacceptable. Brennan J said it was unjust to characterise pre-colonial Australian inhabitants as “people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”
It was this judgement that made Mabo so important not just for Torres Strait Islanders but also Australia’s Aboriginal people. Any group who exhibited systems of custom and tradition had rights and interests in their traditional country. Deane and Gaudron JJ reached into Australian colonial history to describe Governor King’s 1804 actions on the Hawkesbury River as the “first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame”.
While the Australian’s editorial (January 26, 1993) applauded the decision as common sense saying “European settlers did not occupy a country free of inhabitants”, others were less measured. Historian Geoffrey Blainey claimed the decision could “turn Australia in two separate nations” while Victorian premier Jeff Kennett said “back yards were at risk” (they weren’t). Most hysterical was Western Mining chairman Hugh Morgan who claimed the High Court pandered to “the guilt industry” and gave substance to the “Bolshevik left for a separate Aboriginal state”.
Historian Bain Attwood argued the sense of national crisis provoked by Mabo arose from the challenge some saw the decision posed to Australia’s sense of self. But its enduring legacy was the Keating government’s legislative response. The Native Title Bill 1993 initially had three elements; native title legislation, an Indigenous land acquisition and management fund, and a “social justice” package which never saw the light of day. The land acquisition fund was operated by the Indigenous Land Corporation and by 2009 had acquired 222 properties in a land area of 5.7 million hectares.
States followed with their own legislation but the Native Title Act was substantially amended by the Howard government’s Ten Point Plan in 1998 following the Wik decision. Deputy prime minister Tim Fischer infamously claimed those changes provided “bucket loads of extinguishment” and indeed validly extinguished native title for thousands of land interests granted by the Crown since 1788. It also restricted the “future act” regime stopping claimants from negotiating terms with miners on claimed land prior to resolution of the claim.
From 1994 to 2010 indigenous groups made 1556 applications for native title covering 13% of Australia’s land mass with 458 of those claims still before the court as of 2010. The real success of the legislation has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for community purposes such as energy facilities, health care centres and gas pipelines. The people of Mer negotiated an ILUA in 2010 to permit the building of a new primary school and associated roads and services.
But the law remains, as Justice Michael Kirby said in 2002, “an impenetrable jungle of legislation” that was difficult to navigate. In 2008 Rudd minister Jenny Macklin delivered the Mabo lecture where she highlighted three areas for reform: the complex and slow claims processes, inadequate representation for claimants, and the flow of payments to claimants and native title holders. Political will remains lacking to make these necessary changes happen. It is unlikely current changes before parliament will in any way help the Indigenous cause.
My cartoonist Bret Currie sent in a cartoon to me this morning as he does every Friday morning for the Saturday edition of the paper. They usually raise a smile but initially I was a bit troubled by this one on Australia Day (which was the day before). My first reaction was dislike, this went well beyond caricature and into stereotype. Normally I put his cartoon straight up on our Facebook page but I hesitated this morning.
Then I looked at it again and smiled and realised Bret had achieved his objective. People will like it, I concluded. Plus he was making a sharp point about Australian cultural values. I immediately put it up on our Facebook page with the caption “Typing this very quietly in case anyone is suffering a ‘reaction’ to Australia Day, as Bret Currie infers in this week’s cartoon.” And 12 hours later there hasn’t been a single negative reaction.
Perhaps because in the end that’s all Australia Day is, a day for partying with food, drink and sport. With those values it doesn’t matter what date it is held. I have long held January 26 is inappropriate and Australia Day should be the fourth Monday in January. It would still occasionally fall on January 26 though it wouldn’t solve the problem Bret points out about fair dinkum sickies the day after. But it is less political charged than having it on January 26 all the time.
Just how politically charged the current date is noted by some of the rot I saw today from government members when asked whether the date should change. Barnaby Joyce was stupid-in-chief. He not only attacked the idea of change but those wanting change. “I’m just sick of these people who every time they want to make us feel guilty about it,” he said. Joyce said the reason people want the date to change is not because it was wrong but simply they wanted the white Brits who still loved January 26 to feel guilty. But having said it’s all about me, he then went Full Metal Barnaby:
“They don’t like Christmas, they don’t like Australia Day, they’re just miserable … and I wish they’d crawl under a rock and hide for a little bit.”
Eh? They don’t like Christmas??
Who doesn’t like Christmas? I like Christmas, Barnaby, and if you mean the vast majority of Indigenous people who support a change, well I couldn’t answer for them, but I’d suspect the answer is a) actually, they do like Christmas and b) it has bugger all to do with Australia Day.
But “they’re just miserable”. It’s obvious that the “they” Joyce is zooming in on is not Aboriginal people but the green inner city left. Indeed they are one constituency that mostly wants the date changed. But they are not alone. Is it just them he wants to crawl under a rock and hide for a little bit or must all of us seek temporary refuge somewhere?
Meanwhile Joyce was warming to his theme. The idea, he said, “of moving the date away from January 26 is political correctness gone mad and those pushing for change should instead go to work on the public holiday.” Political correctness gone mad is a slogan with zero meaning, Barnaby. And just because you might be taking it easy, you forget many of us are already working on the public holiday. Besides, those with the day off would happy swap it for another day. “Today (Australia 26) is a day about celebration,” Joyce concluded, but he never addressed why it had to be that date, because that wasn’t his argument.
This deflection of argument was also perfected by Eric Abetz. Like Joyce, Abetz ignored the Aboriginal arguments to concentrate on his real enemy: “left-wing activists and latte-sipping apologists.” Abetz is simply wrong here, many on the right see moving Australia Day off January 26 is a necessary step on our road to true independence. As Ian Macfarlane “It’s about healing a wound, drawing a line, getting on with the really important issues facing our indigenous communities.” As for the latte-sipping apologists, this is another nonsense phase beloved by the right that somehow implies political menace into dainty coffee drinking.
While presumably sipping something other than coffee, Senator Abetz said Australians “celebrate living in the freest and most aspirational nation in the world”. Well maybe so, but why can freedom and aspiration only be celebrated on that date?
It took Tasmanian Aboriginal activist Michael Mansell to remind why January 26 is the date. “The only significance of that date is the coming to Australia of white people,” he said.
What Joyce and Abetz really hate is they are being made to feel guilty for their triumphalism. It is the usurper’s complex that makes the act the aggrieved one when called out on misbehaviour.
There is no doubt January 26 was an important date for Australians as it marked the beginning of change of ownership of a continent over the next 130 years. If that is what we are celebrating then stop taking a sickie and admit it. In the meantime, change the date.
It was a book on my “to read” list for six months and when I finally did get around to reading Niki Savva’s The Road to Ruin, it felt like reading ancient history. Of course, it is barely 15 months since the key event of the book, the overthrow of Prime Minister Tony Abbott by Malcolm Turnbull, in a fashion reminiscent of palace coups of Labor, behaviour the Liberals were so desperate not to be tainted with. But Abbott’s leadership was so terminal in 2015 the party had little option if they didn’t want electoral annihilation in 2016, a point brought out well in Savva’s book.
Though I admire Savva as an independent-ish figure of the right, I wasn’t immediately taken in by the book. The first few pages were endless name dropping, then the first few chapters were endless bitchiness about Abbott’s chief of staff Peta Credlin. There was no doubting Credlin’s hold over Abbott but surely a chief of staff could not hold a nation to ransom in the way Credlin allegedly did? Akin to Kevin Rudd’s office when he was in power, things went into the inbox and never came out, and the focus was on micromanagement of trivial issues at the expense of more substantive issues.
The difference was that in 2009 the roadblock and the micromanager was Rudd himself whereas in 2014 Abbott had delegated those functions, and nearly all other functions to Peta Credlin. The hold she had on him, if Savva is to be believed, was immense, and Abbott was immune to all advice on the topic, even when close advisors told him of the damage caused by the perception of an affair between the two. Abbott’s overwhelming preoccupation, said Savva, was the wellbeing of Credlin and transferred all his power to her, which she used ruthlessly.
Savva skirts (a term I use advisedly) the issue of feminism even when she quotes Credlin telling Australian Women’s Weekly “If I was a guy I wouldn’t be bossy, I’d be strong”. Why was it Credlin’s fault that the wheels of government fell off, given she was unelected? Was it her fault, that Abbott’s first cabinet contained one woman, foreign minister Julie Bishop (a cartoon of the time added “and the good news is that she will be out of the country most of the time”), was it Credlin’s fault that Abbott ostracised Bishop as a deputy leader who owed nothing to him or made stupid “captain’s calls” like knighting Prince Phillip and making Bronwyn Bishop speaker, and was it Credlin’s fault Abbott underestimated the numbers game Turnbull was playing that eventually unseated him (them?) in September 2015?
When Savva finally gets over talking about Credlin, and then the digression about her own stint in politics as a policy adviser for Peter Costello, the book becomes a genuine page turner as she dissects the two spills of 2015. Savva had extraordinary access to Liberal powerbrokers most of whom were happy to go on the record about the problems of the day. The February 2015 spill came too early for Turnbull to show his hand, but Abbott was fatally weakened by only narrowing beating “an empty chair” in the ballot.
After that he had six months to turn things around but Abbott had only one modus operandi. Credlin was supposed to take a lower profile after the spill but remained a screen between him and the backbenchers he relied on for support. When the Bronwyn Bishop helicopter scandal broke, Abbott dithered and let it dominate the news for 18 days before finally throwing Bishop to the wolves after all the damage was done, losing a key ally in the process (her ultimate revenge was to vote for Turnbull in the ballot).
With polls showing a government wipeout in August,the party room was set for another move against the apparently hapless prime minister. Turnbull and his allies counted the numbers and believed the time was finally right to move. Even Abbott hardliners like Peter Dutton had enough and the only questions remaining was what would Julie Bishop do, and whether to move before or after the by-election for Canning in WA (where the Libs were running star candidate former SAS-commando Andrew Hastie). The WA campaign was run on strictly local lines with Abbott kept out of the picture and in the end Turnbull did not wait for it.
As for Julie Bishop, she reserved her support almost to the end and even told Turnbull that as deputy she would vote for the leader, as she had done in every ballot since 2007. But when Abbott confronted Bishop he was convinced she was in the coup and he neglected to ask her who she would vote for. When Abbott panicked and declared his position open, he made a mistake by also declaring the deputy leader position vacant, opening the way for Bishop to change her mind and vote for Turnbull. Abbott also fluffed his lines with Scott Morrison offering him the Treasury at the last minute while also giving assurances to Joe Hockey his job was safe. Morrison rightly saw this as untenable.
After the inevitable defeat, Abbott did not take it well. He was “angry, bitter and vengeful.” But rather than blame Turnbull (or better still, himself) he blamed Bishop and Morrison for their “perfidy”. Abbott does not appear to have absorbed the lessons of his defeat though he harbours hope of a second shot at government. Like Rudd he has suffered Relevance Deprivation Syndrome (of recent PMs only Julia Gillard appears immune) and he remains in parliament as a lonely outsider. Turnbull may suffer his own “30 bad Newspolls” and be turfed, but when he does it will be a Morrison or a Christian Porter looming at the gates, not an Abbott – with or without Peta Credlin. The best thing that be said for the coup is that it ended the Libs holier-than-thou pretense that those kinds of sordid power games were the exclusive preserve of Labor.
An amusing photo was posted to Twitter this week of a giant billboard in suburban Melbourne captioned “Thank you Batman – David Feeney MP”. The tweet’s poster Tim Singleton Norton added “to those unaware of the name of the electorate, I’m guessing this billboard looks extremely odd.” When I appropriated the photo for my Facebook feed I added the comments “gratitude in Gotham City” and indeed, the humorous possibilities are endless. Batman, the DC Comics character, has been around since 1939 and transformed by television, cinema and video games, is now a cultural icon as probably the world’s most famous comic book superhero. Of course, David Feeney MP is not thanking the fictional Batman but the people of the Australian federal electorate of Batman, whose name predates the comic book figure.
The Division of Batman was created in 1906 and comprises mainly working class areas of north Melbourne, traditionally one of the safest Labor seats in the country. That almost changed in 2016 when Feeney survived a close challenge from the Greens. The hapless Feeney, already with an infamous reputation as one of the “Faceless Men” who unseated Kevin Rudd in 2010 did not help his own cause when he failed to declare $2.3m property on on the parliamentary register of interests. Then he was skewered in a car crash interview on Sky News, unable to answer questions on the $4.8b Schoolkids Bonus policy. The Greens beat Feeney on primary votes but with the help of Liberal preferences Feeney scraped over the line to retain the seat with a 51-49 2PP victory over the Greens. It was probably with much relief Feeney could take to the billboards proclaiming Thank You Batman oblivious to the irony of the other meaning.
Batman the electorate was named for John Batman (1801-1839), a native Vandiemenlander, and one of the original founders of white settlement in Melbourne in 1835. Batman had a mixed reputation as a likely killer of Aboriginal people in Tasmania before treating with Victorian Aborigines. Batman died of syphilis aged 38 and his early death meant there were no portraits of him in his lifetime.
Those that survive are based on William Penn, the English quaker who founded Pennsylvania. Penn was famous for his supposed peace treaty with Delaware natives in 1683 immortalised in a Benjamin West painting “Penn’s Treaty with the Indians”. Batman was an important member of the Port Phillip Association, an informal group of well-connected Tasmanians. Their self-serving yet unique attempt to treat with the indigenous bands of Melbourne was influenced by stories of Penn’s Treaty with the Shackamaxon native Americans. The imaginary connection between the two would lead to the agreement the PPA struck with the Kulin people of Victoria being called “Batman’s Treaty“.
That was the Treaty Batman claimed he signed in 1835 with the Kulin to occupy hundreds of thousands of acres of their territory around what would become Melbourne and Geelong. According to Batman the Kulin consented to the transfer of hundreds of thousands of acres in return for “the yearly rent or tribute of one hundred pair of blankets one hundred knives one hundred tomahawks fifty suits of clothing fifty looking glasses fifty pair of scissors and five tons flour.” Though white sealers and whalers had lived independently around Port Phillip Bay since the late 18th century, the PPA’s treaty was the first formal settlement proposal and a significant threat to the 19 counties Limits of Location the British government imposed in the Sydney hinterland of New South Wales.
The Treaty was initially respected around the Port Phillip area until complicated by the arrival of a rival settlement party from Tasmania in August 1835 led by John Fawkner. In the middle of the white men’s fight, life got dangerous for the original owners. New South Wales governor Richard Bourke was also alarmed, seeking legal advice before disavowing the Treaty. It was an awkward reminder the rest of Australia was being taken up without treaties. The British view was the land belonged to the crown since Cook’s statement of possession in 1770. Though absurd to the Kulin owners, that statement was a “matter of history” and could not be contested. The Treaty was abrogated but the flow of white settlers continued into Melbourne forcing the Kulin people off their land. The significance of events was not the Treaty but that the limits of location were smashed forever. The pace of colonisation of Australia increased dramatically in the decades that followed.
John Batman would have been forgotten given his early death, but for another Tasmanian, historian James Bonwick. Bonwick was an evangelist troubled by British dispossesion of the Aboriginal people though he was more concerned by redeeming the sins of the British than upholding Aboriginal rights. He praised the short-lived Batman’s Treaty but accepted the government’s decision to abrogate it. He was more concerned about Batman’s reputation as a founder of Melbourne then he was about Kulin land claims.
Bonwick began a revisional process which saw Batman become a major historical figure, though those that promoted him glossed over the Treaty. What became more important was an entry in Batman’s diary about a trip up the river where Batman apparently exclaims “this will be a place for a village”. These words – taken out of context – would take on extraordinary significance in narratives about Melbourne. As the grandees of Melbourne celebrated the city’s 50th and then 100th birthday, they celebrated the extraordinary growth from a “village” to a great world city. For their purposes Batman took “unoccupied” lands; the Treaty forgotten as an awkward reminder the land had prior owners who were dispossessed without compensation or apology.
Yet Batman’s image offered a ghostly reminder of that treaty. Artist Frederick William Woodhouse re-enacted Penn’s Treaty with the Indians in his own painting The First Settlers Discover Buckley. William Buckley was the convict who escaped the short-lived Victorian settlement of 1803 and lived with Aboriginal people for 32 years until he met the new settlers in 1835. Batman was not in that meeting but Woodhouse imagined he was and influenced by Benjamin West painted him in a Penn-style quaker necktie and hat. The image stuck and was passed on to all future depictions of Batman.
The Treaty found a new political purpose in the late 1960s when Victorian Aboriginal people led by Pastor Doug Nichols appropriated it for their needs. “The importance of the Batman Treaty lies in its explicit recognition that Aborigines did, in fact, own the land,” a supporter, Barry Pittock, wrote to The Age. Though Batman’s Treaty is not explicitly mentioned, it is probably no coincidence the 2016 Victorian government is the first Australian administration to publicly back a Treaty. “We understand that it’s not for us to decide what treaty or self-determination should look like,” Minister for Aboriginal Affairs Natalie Hutchins said. “We know that action needs to come from the Victorian Aboriginal community.” Like Feeney, she might have added, Thank You Batman.
On Saturday afternoon I turned on the TV to catch up with world news. The dial was set to ABC and as the TV flicked into life I realised I had tuned into a repeat of the earlier episode of Howard On Menzies. It didn’t take me long to forget about world news and become engrossed in what I was watching. Having enjoyed that, I lapped up the final episode last night. Howard wasn’t a bad interviewer, I decided, and had access to an A-list of talent. The subtitle of the documentary was Building Modern Australia, and that was John Howard’s theme, that Robert Gordon Menzies had ruled Australia for so long we could talk of a “Menzies era” inexorably shaping the country as it glided through the turbulent times of the 1950s and 1960s.
The ideas in the television show (and let’s remember that is what it was, a “show”) come from Howard’s monumental 700-page biography The Menzies Era: The years that shaped modern Australia. Howard says historian Geoffrey Blainey suggested he (Howard) was ideally placed to write the biography of Menzies “from a political perspective” as another long-term leader from the same party. Howard says the era of Menzies lasted from 1949 to 1972, as the three Liberal prime ministers that followed him were all served as ministers in the Menzies government.
Menzies was a towering figure in Australian politics throughout the centre of the 20th century and his influence began well before 1949. Menzies was a brilliant intellectual who would have succeeded in whatever career path he chose. Born in a small country town (an upbringing he was proud of, but quietly escaped) he served a political apprenticeship in the Victorian parliament and was a stellar barrister. Former judge Michael Kirby told Howard that Menzies would have certainly ended up on the High Court had he continued in law. But he gravitated towards federal politics in the 1930s where he found an easy fit as attorney-general in Lyons’ UAP government.
In 1935 he went to England, which began a lifelong affair with the country and its institutions. “One realises that a Parliament for England is something growing from the very roots of English soil”, he wrote. For Menzies “home” was Britain, though that was not to disparage his native Australia, which he saw as a British appendage. Menzies was in the constant public eye as AG, earning the nickname Pig Iron Bob for his firm stand when he clamped down on workers who refused to load boats carrying iron ore for Japan.
When Lyons died in 1939, Menzies was the obvious replacement. Though he had resigned from the ministry in a dispute with the Country Party over the national insurance bill, Menzies was sworn in as UAP prime minister. Ongoing hostility from Labor and the Country Party left Menzies vulnerable and he did not help his cause by spending much of the early war years in Britain. Britain was where the action was, and where Menzies wanted to be, but he neglected his power base. An ungrateful Australia booted him out of office in 1941.
Left to stew in his juices in a backwater while the affairs of the world went on without him, Menzies did a root and branch investigation into what power really meant to him. The start of his political renaissance is charted by his best biographer Judith Brett in her analysis of a series of radio speeches beginning in 1942 called The Forgotten Years. Then a backbencher, ‘The Forgotten People’ is Robert Menzies’ appeal to the Australian middle class, whom he saw as the moral backbone of the society. “proud, scrupulous, thrifty and modest.” The middle class lived outside the public sphere and centred their lives on their homes. Menzies imagined them as independent citizens exercising their judgment as to what is best for the nation as a whole. These views struck a powerful note with their intended audience and were to ground his future political success.
The occupations they had were “salary-earners, shopkeepers, skilled artisans, professional men and women, farmers and so on”. Menzies believed that no party spoke for these people and set about creating his own as he sat out the war. His new Liberal Party was smashed in the 1946 election but the time was right in 1949. By then the electorate had enough of Labor’s post-war austerity and wanted something new to believe it. The times were right for Menzies.
Menzies had a lot of luck in his following career. In 1954 he was on the nose until he used the Petrov Affair to whip up the fear of communism. The Labor party split of 1955 put it out of action for the rest of the decade, yet Arthur Calwell almost snatched government in 1961, Menzies winning by one seat. Menzies’ final victory in 1964 was a triumph as he used Labor sectarianism to push through popular reforms in education, snatching much of their Catholic vote in the process. He retired in glory on Australia Day 1966 handing over power to Harold Holt.
Hated and despised by Labor in equal measure, it wasn’t until another towering intellect came along in Gough Whitlam, that Menzies’ ghost could be exorcised. And it took another Labor genius Paul Keating to read the last rites. Howard tries to get us to look at Menzies in a new light, but with Howard being in Menzies own image, perhaps is fatally undermined in that task.
But as a gripping sequence between Howard and Bob Hawke reminds us, Menzies’ longevity in power is extraordinary in a democracy and questions need to be asked about he survived so long. Luck played a large part as did his ability to turn world affairs to his account. The quality of his opposition was poor, Labor being even more conservative and set in their ways than Menzies was. And the power of his personality made him the dominant figure in his own party making sure that there would be no night of the long knives from within. His patrician bearing could never make him a man of the people and he failed in his personal quest to ban Communism. But he was always a political survivor. As Barry Humphries said “no one liked him except the electorate”.
Howard On Menzies teased out many of those issues, as it was about Howard as much as it was about Menzies. Menzies’ success was based on “quiet prosperity” which is an oxymoron today, and probably was in Menzies’ time, predicated by hiding behind tariff walls, picket fences and whitewashed history. There was no doubt the people Menzies appealed to were hard-working and decent and Howard tried to tap into them to guarantee his own long term survival. But by the late 20th century the walls were crumbling and despite Howard’s dictum of “we will decide who comes to this country”, he could not keep his Australia as white and pure as Menzies’ Australia.
As I said, Howard had a stellar list of Australian greats ready to give their fascinating tuppence worth on Menzies. But one of Menzies’ key lessons was missed in the program. As he sat out the war, he realised an important electoral demographic was women, and he spoke to their needs. But Judith Brett aside, they were largely absent from Howard on Menzies. They remained the forgotten people.