Australia Day

by Stan Grant

  The British law lords had slammed shut the book on the rights of Aboriginal people. This forms what is known today as the skeleton of Australian law. No court has overturned it, despite case after case disputing the legitimacy of the Crown. In 1971, the Yolngu people of Arnhem Land took on the might of the mining company Nabalco, which had secured a twelve-year bauxite mining lease. The Yolngu said it was their land; they were the sovereigns. Milirrpum v Nabalco, as it is known, was the first time in Australia a court would have to rule on native title.

  Would this be it? This time, would an Australian judge confirm what Aboriginal people had never stopped believing: that they were no one’s subject? If any people were a sovereign people surely it was the Yolngu. They spoke their own language; they practised ceremonies, told ancient stories; and were governed by the laws of their ancestors. Song, dance, art, politics, trade: nothing here was inherited from Britain. Wouldn’t the court see this? This was indeed a landmark case, Justice Richard Blackburn went where no Australian judge had gone – further even than Justice Willis a century before. Justice Blackburn recognised that the Yolngu had a civilisation as sure as any on earth. Aboriginal people, he found, had a ‘subtle and elaborate system of law . . . if ever a system could be called a government of law . . . it is shown in evidence before me’.

  There was a glimmer of hope. But Justice Blackburn like others before him would not upend the foundation of this country. Ultimately he ruled that this land was a ‘desert and uncultivated’. Aboriginal people had been usurped by British sovereignty, they had no claim on this land. Australia, he said, was indeed a ‘settled colony’.

  Paul Coe was a former footballer and a young law student in 1979, when he lodged a case in the High Court to challenge Australian sovereignty. Coe had grown up on the Erambie Aboriginal reserve in the New South Wales town of Cowra, it was a tough place and he’d seen racism and brutality first hand. Coe lodged his case on behalf of the Wiradjuri – the biggest Aboriginal group in eastern Australia, claiming that like the Yolngu, his people had their own laws and traditions and had never ceded their land to Britain. Coe v The Commonwealth was ultimately dismissed, the judges ruled that it was a poorly drafted statement of claim, but not before Justice Murphy rattled the bones of old Australia.

  . . . the aborigines did not give up their lands peacefully; they were killed or removed forcibly from the lands by United Kingdom forces or the European colonists in what amounted to attempted (and in Tasmania almost complete) genocide. The statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of aborigines’ land.

  All roads lead eventually to the Mabo case. In a poetic piece of irony Torres Strait Islander man Eddie Mabo was a gardener at Townsville’s James Cook University when he took on the legacy of Captain Cook himself. He was defeated at every turn but fought all the way to the High Court to overturn the doctrine of terra nullius. The Mabo decision was indeed historic, perhaps the most important legal judgment in Australian history. The judges found that a people were here when the British arrived, this was not an ‘empty land’. When Captain Cook planted the British flag in this land, native title fell to the soil with the laws of the Crown.

  But Aboriginal people hoping to settle the question of sovereignty were again disappointed. The justices took their lead from that old Privy Council ruling from 1841, the law would not budge from the belief that this land was ‘peacefully annexed’. In the words of Justice Brennan, the court could not ‘fracture the skeleton’ of our law.

  When Captain Cook arrived on these shores in 1770, he came with secret instructions. The Endeavour was officially on a voyage of science to observe the transit of Venus, but there was another mission. The king’s orders were to ‘make discovery’ of the great south continent. The king was explicit, Cook was to ‘cultivate a friendship and alliance’ with the ‘natives’. He was to take possession of this land ‘with the consent of the natives’. Consent was not sought let alone given. More than two centuries later Aboriginal people are yet to consent.

  By the eighteenth century the world was coming, Aboriginal people were never going to remain in isolation. Dutch navigator, Willem Janszoon, had explored the western and southern coasts more than 150 years before Cook arrived. Macassans were visiting the north and trading with local people by the early 1700s. It was inevitable that soon the boats would come to stay. We cannot turn back time, Aboriginal people cannot wish away the past 200 years. But we are a haunted nation; tormented still by that first injustice from which all other injustices flow. Our writers, our storytellers and artists, our judges know this and in our bones we – all of us who call this place home – know it too.

  Settled or conquered? It is a critical question, that reveals perhaps why our history books for so long left blank the pages of the frontier wars when black and white fought hard and long over this land. If Australia was indeed conquered, international law tells us that the rights of the so-called ‘conquered people’ would remain. British common law is elastic. That is one of its strengths, it changes to fit the new realities on the ground. It absorbs the laws of the conquered peoples. This helps explain countries like New Zealand, a British settlement that continues to recognise the sovereignty of the Maori people.

  New Zealand was never deemed empty; the Maori were recognised and the battles they fought against the British form the story of the nation. In 1840, Maori chiefs signed the Treaty of Waitangi, what New Zealand calls its founding document. At the treaty ceremony British Lieutenant Governor, William Hobson, is said to have remarked in Maori language, ‘He iwi tahi tatou’ – ‘We are now one people’. That could have been us; we could have written such a different story for ourselves. It tears at us still, I know because I carry that conflict deep inside me. We live together and we love each other. We have fought each other and fought in wars alongside each other. Remember we – black and white danced together briefly under the stars on the beach when the First Fleet weighed anchor. But there is that space between us. It is our birth stain, our original sin, it is what stops us too finally being able to say, ‘We are now one people.’

  THE TORMENT OF POWERLESSNESS

  In 2007, the military rolled into an Australian town. Mutitjulu, a small Indigenous community in the shadow of our nation’s spiritual heart, Uluru, was now ground zero in what would become known as ‘the intervention’. A decade later, in 2017, the nation’s Indigenous leadership stood on that same ground to ask for a new relationship with Australia: the Uluru Statement from the Heart.

  Between those two events is what W.E.H. Stanner once dubbed the ‘torment of powerlessness’. Here is the story of the First Peoples of this land living with the weight of history, the burden of colonisation, the misery of poverty.

  This is the depressingly familiar narrative played out time and again in our media: communities tormented by the wailing of funeral ceremonies and the cries of children and mothers.

  Those cries are lost in a political process that does not hear the ambitions and aspirations of Indigenous people. The failure to listen, the refusal to talk was a hallmark of the intervention.

  This was Prime Minister John Howard’s declared emergency. It was a time of fear and suspicion, of claims of ‘paedophile rings’, rampant abuse and communities awash in drugs and alcohol. What started at Mutitjulu spread to scores of other communities. There were reports of Aboriginal families fleeing as the troops came in. The mayor of Mount Isa in Queensland asked for help to deal with an influx of Aboriginal people coming from the Northern Territory.

  It is remembered by many Indigenous people as a dark time. Indigenous leader and health expert Pat Turner laments the intervention as a ‘complete violation of the human rights of Aboriginal people’. It was officially termed the Northern Territory Emergency Response, a half-billion-dollar package to impose new controls on black communities.

  More police were deployed, curfews were imposed, there were bans on alcohol and
restrictions on welfare payments.

  Indigenous lease arrangements were overhauled and the government suspended the permit system controlling access to communities. The soldiers were on hand to assist in logistics and implementation but their presence was a symbolic reminder of colonisation and the often-fractious relationship between Aboriginal people and the state.

  When Australians voted in overwhelming numbers in 1967 to give Indigenous people a ‘fair go’ in this country, I doubt they had this in mind. But the intervention is the by-product of those good intentions. The 1967 referendum for the first time gave power to the federal government to make laws for Aboriginal people.

  In 2007 the Howard government overrode the Northern Territory government and set aside sections of the Racial Discrimination Act to intervene directly into the lives of Indigenous people. This issue of control sits at the heart of the push for a new referendum to recognise Indigenous people in the constitution. It is about completing 1967.

  In 2017 Indigenous leaders issued a cry from the heart. The Uluru Statement, as it has become known, spoke to powerlessness. It was a call for an ‘ancient sovereignty’ that would shine as a ‘fuller expression of Australia’s nationhood’.

  The statement said, ‘proportionately, we are the most incarcerated people on the planet. We are not an innately criminal people.’ It spoke of children alienated from their families; children should be ‘our hope for the future’.

  The dimensions of the crisis, the statement said, revealed a structural problem. Only through rewriting our nation’s founding document, the constitution, could we right the wrongs. Only then could Aboriginal people take a ‘rightful place in our own country.’

  The Indigenous leaders called for a new ‘voice’ – a representative body – that would speak for the powerless. In the words of Noel Pearson – one of the architects of the Uluru Statement – Indigenous Australians needed an Australian ‘shield’ that would defend against the sword of potentially harmful government legislation.

  In his 2014 Quarterly Essay ‘A Rightful Place’, Pearson challenged Australia as to whether its ‘system of democracy enables an extreme minority to participate in a fair way.’ Pearson wrote:

  The scale and moral urgency of the Indigenous predicament far exceeds the power of Indigenous participation in the country’s democratic process.

  Pearson had belled the cat. Here was the fundamental question of Australia, it is the question that turns over and over in my mind – it is the question that has hovered over my every thought in this book – is liberalism a big enough idea to liberate me from the chokehold of race, identity and history? If liberalism works for others, can it work for me?

  The Uluru Statement is a leap of faith. It is asking Indigenous people to sign on to the idea of Australia, the land of dreams. Yet there is deep scepticism – even hostility – to Australian democracy; to liberalism. Indigenous people are told that we should all be individuals; that justice must be colour-blind, that we are all the same, we should all just be Australians. How much easier that is for those whose lives have been untouched by the legacy of racism and segregation. Liberalism asks easier questions of white people; it poses tougher questions of someone like me. I have to work harder to embrace it; I have to push the limits of liberalism until it bends to include me.

  I’m not alone, there are black writers and thinkers from different parts of the world committed to political liberalism but fully aware that it has historically worked against them. It is a high-wire act if black people get too close to liberalism, they can become radioactive. They are accused by other blacks, as ‘thinking white:’ you’re a sell-out or worse, an Uncle Tom. To some beyond redemption. But there are those like Caribbean scholar Charles Mills who are writing their own redemption song. He doesn’t want to throw out liberalism, but prise it open, get inside it and shake it up. He doesn’t hold back, liberalism has a ‘race problem’, it is shaped by ‘white supremacy’. Liberals need to find a new way to talk to minorities in society, he says, they must accept ‘black rights and white wrongs’.

  Mills is staring down those old giants of philosophy – dead white men – and turning their own arguments against them. Did Immanuel Kant, John Locke or David Hume truly believe in fairness? Did they seek justice for all people or did they mean white people? Today we would call Kant a racist: he said openly that black people are stupid. Liberals like to think they are beyond racism, but it is baked in hard. Now they tell us we should put race aside, stop playing the race card. How they love repeating Martin Luther King Jnr – that we should judge people by the content of their character not the colour of their skin. They forget that King was dreaming.

  We can’t just level the playing field, outlawing discrimination is not enough. We cannot all live under a veil of ignorance unaware of each other’s race, gender, class, sexuality, religion. How can the rules of the game apply equally to us all when not all have been treated equally? Mills says this ideal world has never existed; no individual was enslaved, blacks were bought and sold as a group; we can’t pretend to be colour-blind today. A just future means first undoing the injustice of the past.

  Liberalism is a philosophy of progress, it doesn’t cope well with the past. Liberal democracies are the same the world over, we are no different; they are much more comfortable with the things unsaid than the harsh truth. Liberalism is flawed, it has been complicit in racism and colonisation. Yet for all of that it is a glorious idea, a dream of freedom: the End of History. If history is the struggle to break free of our chains then liberalism is the final destination. Am I being too romantic; too misty-eyed? Perhaps. But I have seen the alternative. I have lived and worked in countries that crush freedom; that jail those who protest or speak out; countries where Big Brother is always watching. If I could write a love letter to liberalism, freedom is what I would cherish most.

  Rather than reject liberalism we need to open up new pathways to justice for those whom liberalism has traditionally excluded or ignored. Liberalism’s cherished belief in individual rights can be compatible with group rights. The towering political thinker of the twentieth century was the American John Rawls; he rewrote the book on justice and fairness. Rawls believed in a ‘civic friendship’ built among people with ‘disparate aims’ but who recognise ‘a shared conception of justice’. Put simply, we may disagree with the road map but agree on the destination.

  Rawls lit a fire among a new generation of philosophers black and white, who try to square the circle of liberalism and the legacy of history. African-American, Tommie Shelby, says we can pursue justice without reverting to the divisive politics of identity. He walks a delicate line between what he calls ‘thick’ and ‘thin’ blackness. As the labels imply, thick blackness emphasises racial solidarity; thin blackness puts the emphasis on justice. It is a subtle but crucial distinction, that acknowledges how blacks collectively can unite in the pursuit of their rights but not be forever bound by exclusive notions of black racial identity. He, more even than Charles Mills, has spoken most powerfully to me, particularly his belief that ‘black individuals are the primary units of moral concern’: when the oppressed group is liberated, the individual is set free.

  Duncan Ivison, who I mentioned in my doctoral confirmation speech to the University of New South Wales, says we need a ‘post-colonial liberalism’. He asks if ‘liberal democracy can become genuinely intercultural?’ Ivison navigates that narrow passage between Indigenous rights and the legitimacy of the colonial state. Aboriginal people have been angered by Australia’s refusal – legally and politically – to acknowledge enduring Indigenous sovereignty, which they say has never been ceded. Historically British and later Australian law claimed to extinguish Aboriginal sovereignty, but Ivison has tried to untie this Gordian knot. Other countries – Canada, America, New Zealand – have recognised dependent sovereignty where pre-existing nations now subsumed by modern secular states still maintain degrees of self-determination. Ivison asks, why not us? He says Australia nee
ds to create a ‘mutually acceptable coexistence’. Rather than the problem, Ivison sees liberalism as the answer; a more innovative liberalism that ‘can be taken hold of, translated and renewed’.

  Liberalism, for me, is the paper on which I can write my own peace with Australia. Thinkers like Tommie Shelby, Charles Mills and Duncan Ivison lift the blinkers from my eyes and allow me to imagine liberal democracy anew. I can see how those excluded – like my family – can find a way in. The Ghanaian-British philosopher Kwame Anthony Appiah says modern liberalism can not be blind to difference; identity, he says, ‘is at the heart of human life’. The trick for liberalism is ‘to construct a state and society that takes this account of the ethics of identity without losing sight of the values of personal autonomy’.

  This is an important debate for Australia to have. Philosophy matters; ideas are the engine of progress. The clash of ideas has sparked revolution and war. Today, thirty years after post-Cold War assumptions of the End of History, liberalism thought to be triumphant and transcendent, is under renewed attack. The West is facing an identity crisis, no longer sure of itself. There is a loss of faith in institutions – banks, the church, political parties – exacerbated by growing inequality and rapid technological change. Far from the promised nirvana of open borders, free trade and free movement of people, we have seen borders going back up and a resistance to immigration, especially refugees. Political populists – left and right – are exploring fear and anxieties stoking a resurgent tribal warfare: identity is the buzzword of today. Democracy itself is in retreat, in Australia a survey by the influential think-tank, the Lowy Institute, found that a third of young people here no longer believe democracy is the best form of government.