I love this sunburnt country, this land of sweeping plains, with its ragged mountain ranges and its droughts and flooding rains. This personalisation of Dorothea MacKellar’s very descriptive poem belongs to every Australian who has travelled within our great Country.
This unique land, which is the only Continent occupied by a single Nation. A Nation with only one division that is:-
“Indigenous” which rightly covers every citizen born in Australia be they descended from Aboriginal, Convict, Marine, Settler or Immigrant.
Or “non-Indigenous” which covers every Australian citizen born overseas whether descended from Indigenous Australians or from citizens of any other Nation who regardless of ethnicity, race or colour have made a contract of Citizenship with the Government of Australia, usually referred to as Naturalization.
It is true that up until the 1967 Referendum, the States retained control over legislation concerning our Aboriginal citizens and for a period denied some of them some of the rights of citizenship. An unfortunate fact is that the committee appointed by Prime Minister Holt to continue the successful policies of Assimilation and Integration affirmed by the referendum did not live up to his hopes. His error was to choose two men of high reputation, one of long Public Service and the other of lived experience and research among the Aboriginal people. But HC Coombs and WEH Stanner, both graduates of the left leaning London School of Economics, would within weeks of Holt’s unexpected death champion a change of policy and push for Aboriginal self-determination. Holt had moved the very knowledgeable Paul Hasluck to Defence and then External Affairs and given the Aboriginal Affairs responsibility to WC Wentworth.
Wentworth was not a very popular Parliamentarian and despite his very informative work, as illustrated in the First Latham Memorial Lecture in October 1968 – it was Coombs and Stanner that led Aboriginal policy in a different direction. After an unsuccessful challenge for the Prime Ministership by Paul Hasluck, the new Prime Minister John Gorton nominated him to the Governor Generalship in 1969 and the policy of Assimilation departed with him. It is ironic that large numbers of Aboriginal people have been marrying outside their heritage and happily assimilating without any coercion ever since.
Many important events occurred in the next few years but none more important than Milirrpum v Nabalco Pty Ltd, also known as the Gove land rights case decided on the 27 April 1971. This case, decided on its merits, aroused feelings which affected the legal participants so deeply that it coloured their thinking up to and unfortunately into the most important High Court case of the 20th Century.
I do not believe that I am gilding the lily by saying that the Mabo (No2) case decided on 3 June 1992 was the most important case in about a century because it was influenced more by the later behaviours of Gove participants-
the late Mr Justice Blackburn who had been elevated to the Chief Justiceship of the ACT and had been the trial Judge in the Gove case.
The late Mr Justice Edward Woodward, later a member of 17 Royal Commissions and chairman of 4 most notably the Aboriginals Land Rights Commission, usually referred to as the Woodward Royal Commission 1973-1974. His Honour had been a junior counsel in the Gove Case, he was also the son of Sir Eric Woodward, Governor of NSW.
The late Mr Justice Francis Gerald Brennan (known as Gerard Brennan) only recently passed away, he presented the principal opinion in the Mabo case as a Judge of the High Court, later went on to become Chief Justice. He represented the Northern Land Council before the Woodward Royal Commission. He was the son of Francis Tenison Brennan of the Queensland Supreme Court (and sometime politician) and the father of Frank Brennan a Jesuit Priest, Author and Human Rights lawyer.
Then to the evidence in the Mabo cases.
Because the Mabo (No2) Case became the basis of the Keating Government’s Native Title legislation and is so often referred to as the case that defeated ‘terra nullius’ I feel I need to point out a few facts. The Mabo case originally had nothing to do with mainland Australia. It was a case originally brought by Torres Strait Islanders Eddie (Koiki) Mabo, Reverend David Passi, Sam Passi, James Rice and one Meriam women, Celuia Mapo Sale against the Queensland and Commonwealth arising from Queensland’s annexation in 1879 of the Torres Strait Islands and the Merriam peoples rights in land and sea regarding the Island of Mer (also known as the Murray Island measuring about 6 Square Kilometres). The matter was referred to the Queensland Supreme Court by High Court in its original jurisdiction by Chief Justice Gibbs. The State of Queensland then passed the Torres Strait Islands Coastal Islands Act and the matter was referred back to the High Court where the Act was found to be in conflict with Commonwealth Racial Discrimination Act of 1975, that verdict is known as Mabo (No1) case. The High Court then referred the matter back to Mr Justice Moynihan of the Queensland Supreme Court who not only conducted “a view” on the island but actually conducted an on site sitting. Justice Moynihan found Eddie Mabo’s evidence unsatisfactory and he reported back to the High Court. The case resumed with Eddie Mabo and another withdrawing from the case (unfortunately not the name of the case). The withdrawal of the claim for rights over territorial waters removed the Commonwealth from being a defendant in the case. The Commonwealth’s legal advisors (Hawke Government) lost interest and FAILED to present any evidence or argument. Further the Chief Justice Sir Harry Gibbs had been forced to retire under the new age 70 yrs rule and Sir Anthony Mason was now Chief Justice.
In a 6 to 1 Judgment the Court (mainly on the opinion of Brennan) found that the Merriam people had retained a form of continuing native title over their cultivated lands annexed by the Colony of Queensland in 1879. Then without regard to timing or comparison considered the verdict of an International Court in the case of decolonization re Western Sahara in 1974 as relevant to matters of colonization. Finally they found that not to apply the same principles to the mainland would be in breach of the Racial Discrimination Act 1975.
So the judgment in a case named after a person who was not a complainant, based on a cultivated island sized 6 square kilometres with a population of abt 450 Torres Strait Islanders (of Melenesian descent) was applied to another island measuring about 7,591,608 square kilometres with a population in 1992 of abt 17,400,000 Australians of whom less than 600,000 claimed to be Australian Aboriginals descended from the pre-1788 people who (even in the eyes of the Court) lead a usufructory existence. Such existence satisfied the eighteenth century classifications of “uninhabited by civilized people” as defined by Blackstone and Vettel. (The term “Terra Nullius” supposedly overturned by this Judgment was unknown until the twentieth century.)
When the Judgment came down in 1992 the then Prime Minister Paul Keating (Hawke having retired) rushed to enshrine it in Commonwealth law (before it could be appealed) and legislated the Native Title Act 1993.
In 2022 a section of the citizens with an Aboriginal heritage demanded a “Voice to Parliament” which our current Prime Minister, Mr Anthony Albanese, considers to be a generous offer and that it would be good manners to accept.
I am at 89 years of age old enough to be an Elder. I belong to the second largest group of people in Australia, the non-indigenous (as defined at the beginning of this paper. We number in the order of 7,600,000 according to official statistics with more than 270 different ancestries. If it is the Governments intention to create new avenues of communication by race or ethnic origin then it would be good manners to at least inquire whether we of a similar number of larger tribes would desire to also be heard.
If we are to create statutory voices to Parliament in excess of those already existing, I humbly suggest that there are many recent Australian Citizens (and migrants and refugees) who do not have a long standing community, who share their former language. They might also benefit from such a voice to Parliament. It would certainly have been good manners to have asked them. However the practicality of a Voice amply representing the voices of 300-350 Aboriginal tribes and 270 other ethnicities would be like a 21st Century “tower of babel” yelling fruitlessly in the forecourt of Parliament House.
It is true that my hobby horse is opposing proposals that weaken the excellent protections of our Constitution and for this I make no apology. It is my contracted right to devote my energy to ensuring that the equality of its citizenship rights remain intact.