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AUSTRALIAN CATHARSIS: COPING WITH NATIVE TITLE

by RON CASTAN A.M., Q.C.

(B'nai B'rith oration -1993)

Every so often, either as observers or participants, we realise that we are involved in events which have historic significance - events which are of symbolic importance of a far reaching nature and which will affect the development of the nation.

Sometimes they are traumatic events - events involving conflict and perhaps violence, which lead to dramatic changes, and become defining moments for a people or a nation.

In one sense, it is one of the great strengths of Australian society that we have not fought a war of independence from a colonial oppressor, nor have we had to wrest democracy from a ruling elite.

Although attacked by the Japanese at Darwin and Sydney during the War, Australia does not consider that it has ever been occupied by an invading enemy.

The forging of a national identity has, curiously enough, been focused on events such as Gallipoli, in 1915, rather than the achieving of Federation in 1901.

We have tended to pay little attention to the Eureka Stockade uprising, or the convict uprising at Castle Hill in earlier times, as focuses for national identity.

Our National Day has been celebrated on 26 January, being the anniversary of the arrival of the First Fleet. Mostly it is celebrated, except on special anniversaries, in fairly desultory fashion.

Since the excitement of the Bicentennial celebrations in 1988 Australians have reverted to "business as usual" for Australia Day i.e., just another public holiday, in some States not even celebrated on the day on which it falls.

This laid-back approach to nationalism has had great benefits. It has contributed, I believe, to achievements of which we can all be truly proud - in particular the easy absorption and acceptance of immigrants from a great range of ethnic origins into the mainstream of Australian society with relatively little stress. This has involved not only a successful adaptation by the immigrants and their children.

Australia itself has adapted to us in remarkably flexible and successful way, and without significant trauma.

It is interesting to speculate on why particular celebrations of national identity take a hold on the Australian imagination.

Anzac Day embraces the idea that as a nation, we were forged in "the crucible of War" that colourful phrase so overused by journalists and historians.

Manning Clark noted the absence of Civil War or Revolution in this country. He coined the phrase "blood has never stained the wattle".

In considering the relaxed approach to Australian nationalism, and this absence of identifying focal points, it is somewhate perverse that we have chosen to rely so heavily on a battle fought in a war on the other side of the Globe, on behalf of an Empire which as not been in existence for 45 years. Some explanation may be derived from the fact that so much of Australian history has been built on a denial of the true facts concerning the settlement of this country and the building up of the great nation of which we are all a part.

The astonishing reaction, and over-reaction to the Mabo decision of the High Court, on 3rd June 1992, has meant that it is likely to be seen by future historians, as one of those dramatic defining events which shifts our national identity - our perception of ourselves as Australians.

Some of the reactions have been truly outlandish. Why did Henry Bosch, former Chairman of the National Companies and Securities Commission, not in any way involved in the issue, give public expresseion to racist stereotypes about a group in the community, particularly a group of which he knows nothing, either as individuals, or as a community?

Why does the spokesman of the Australian Bankers Association refer to the indigenous inhabitants of Australia and their decendants by a crude epithet?

One might perhaps expect representatives of the mining industry to express concern as to the impact of a decision concerning land tenure arrangements. However if they are genuinely concerned with business and financial matters, why do such spokesmen dress up their commercial concerns in the 19th century language of a hierarchical ranking of societies on some kine of "moral premiership ladder". Why do they seek to denigrate all that is of value in those that they consider have not made it into their version of the Grand Final of the great conflict between civilisations.

One might have expected that notions of "the white man's burden", and the bringing of Christian civilisation to we primitives who have not yet learnt to appreciate its benefits, might have been confined to the ravings of fringe groups, rather than articulated by so-called leaders of the community.

Equally, it is difficult to see why the National Party leader, Tim Fischer, sees it as necessary to denigrate the sophisticated cultural and spiritual principles upon which Aboriginal society is based. Or why Wayne Goss, Premier of Queensland, responded to news of a new claim lodged by Aboriginal groups in the Courts relating to Fraser Island, with a contemptuous reference to "ambit claims".

Whatever happened to the doctrine that political leaders do not comment on matters which are subjudice?

And of course, in Western Australia Mr Court has unashamedly called for the reversal of the High Court's decision either by Federal laws or by a Referendum.

Enormous political pressures have been brought to bear designed to deny to Aboriginal people as much as possible of the fruits of the Mabo decision. Fortunately that pressure is being resisted by many, including the Prime Minister.

The venom, anger and frustrations of some journalists highlights the strange way in which many in Australia have reacted to the High Court's findings.

The frong page of the Australian Business Monthly of August 1993 was entitled "Black Power Bleak Future. Mabo Points the Bone at Business". In supposedly providing information to business people in Australia concerning the Mabo decision Mr. Stannard has published a remarkable article by Trevor Sykes. That article opens not with quotations from the High Court, nor a description of the Murray Islands. On the contrary, Mr. Sykes devotes a column to retelling of a lurid novel of cannibalism by Ion Idriess called "The Drums of Mer".

A bloodthirsty passage is quoted in full, including the description of a fictional chief beheading a fictional mainland Aborigine and eating his fictional spinal cord. It is described as blood curdling stuff, and it certainly is. Yet this piece of fiction is identified as being a book which is "of some contemporary interest" because it was set by the novelist on the island of Mer.

Mr Sykes concludes his disgraceful reference to this novel by pointing out that it is the mining companies and pastoralists whose blood is now curdling at the prospect of the result of the High Court decsion. If their blood was not curdling previously at the prospects of the results of the decision, it will certainly be curdling after reading Mr Sykes' colourful fiction.

This is inflammatory and racist writing, reminiscent of the techniques of Joseph Goebells, in dehumanising the Jews in Germany.

Ideally we should be able to laugh at this nonsence. However there have been more serious attempts to inflame hatred.

The President of the Law Council of Australia was forced to defend the Judges of the High Court against attacks by Mr Hugh Morgan.

Mr John Mansfield described Mr Morgan's attack on the High Court Judges and their integrity as "a nonsense".

Mr Morgan had earlier said that the Justices of the High Court "seem ashamed to be Australians" and "seem to have no pride in their country".

Similarly angry attacks on the High Court Judges have emanated from two very seniour legal commentators in addresses to the Samual Griffith Society.

One of them, Mr Peter Connolly Q.C. is a retired Judge of the Supreme Court of Queensland. Ignoring what was said by the Justices of the High Court, he has characterised the interests of Aboriginal people as amounting to the right to "move across land, collecting fruits and the game they found, to resort to particular places for ceremonial purposes, and to set fire to the countryside".

Having manifested his abysmal ignorance by so describing the totality of Aboriginal culture and life, he then suggests that these were the activities of what he calls "Palaeolithic man".

Thereafter in his supposed learned paper he refers to the Aboriginal people of mainland Australia as "the Palaeolithics". This is supposedly designed to draw a contrast between mainland Aborigines, and the Melanesian people of the Murray Islands.

According to Mr Connolly, the latter were "millennnia ahead of the Palaeolithics in term of social organisation because they were not nomads but cultivators".

Mr Connolly remains a primitive advocate of what may be described as "schoolyard anthropology". S.E.K.Hulme Q.C., an eminent Melbourne lawyer, also addressed the Samuel Griffith Society.

He is also troubled by the fact that mainland Aborigines were so- called "nomads" and did not plant crops.

The concept of a "nomad", whatever that may mean, is apparently of immense legal importance to these learned gentlemen, who are apparently greatly influenced by Geoffrey Blainey's writings.

They seem to ignore the fact that English law has always focused on "possession" not cultivation, as the primary indicator of land ownership.

Mr Hulme also criticised the High Court for their history. He failed to tell us what was wrong with that history other than to suggest that there is some dispute as to the proportion of Aboriginal people wh owere killed by white mans' diseases, as distinct from white mans' bullets and poisoned flout.

One is reminded of the sophistry by which the deniers of the Holocaust engage in sophisticated analysis designed to show that it was not really 6 million who were killed, but "only" 5.5 million, or some other number, or that really it was all due to disease and the dreadful conditions of war and that the Nazis really got a rather bad press.

Neither Connolly nor Hulme appears to know anything of the society and culture of the so called "Nomads". Certainly they reveal no insight into the findings of Blackburn J. in the Gove Land Rights case in 1971 who said, after hearing a vast amount of evidence:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people lead their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called "a government of laws, and not of men", it is that shown in the evidence before me."

Nor have Connolly and Hulme paid any regard to the writings of Professor Bill Stanner, who, as the Professor of Anthropology and Sociology at the Institute of Advanced Studies at the Australian National University, presented the 1968 Boyer Lectures on ABC Radio. He entitled them "After the Dreaming".

As an anthropologist he had spent his life working with Aboriginal people and had come to an understanding of the reality of their dispossession and destruction.

He explained the relationship of Aboriginal people to their land in this way;

"No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word "home", warm and suggestive though it be does not match the Aboriginal word that may mean "camp", "hearth", "country", "everlasting home", "totem place", "life source", "spirit centre" and much else all in one. Our word "land" is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets.

The Aboriginal would speak of "earth" and use the word in a richly symbolic way to mean his shoulder or his side. I have seen an Aboriginal embrace the earth he walked on.

To put our words home and land together into homeland is a little better but not much. A different tradition leaves us tongueless and earless towards this other world of meaning and significance.

When we took what we call land we took what to them meant hearth, home, the source and locus of life and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible.

Particular pieces of territory, each a home-land, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co- ordinates.

What is described as "homelessness" means that the Aborigines faced a kind of "vertigo" in living. They had no stable base of life. Every personal affiliation was lamed. Every group structure was put out of kilter. No social network had a point of fixture left. There was no more terrible part of our 19th century story than the herding together of broken tribes under authority and yoked by new regulations into settlements and institutions as substitute homes.

The word "vertigo" is of course metaphor, but I do not think it misleading.

In New Guinea some of the cargo cultists used to speak of "head-he-go- round me" and "belly-don't-know-men". They were referring to a kind of spinning nausea into which they were flung by a world which seemed to have gone off its bearings.

I think that something like that may well have affected many homeless Aborigines.

We are watching a little miracle when we see people who having been made homeless, again pull their world together sufficiently to try to make another home for themselves. It is something which people brought up on ideas of land as "real estate" or "leasehold" find it difficult to understand."

These words of Professor Stanner have a familiar ring for those of us who have read the works of Primo Levi and Elie Wiesel, describing another world which had also "gone off its bearings", the world of Auschwitz and Treblinka.

There have been notable exceptions to the litany of sad and ugly attacks on the Aboriginal community, on the High Court Judes, on the lawyers who were involved or may become involved in litigation involving these issues, and on any other available target, including political opponents of the day.

The Australian newspaper has been a particularly honourable exception, taking a forthright and sensible stand, advocating acceptance of the Mabo decision and its implications, and a constructive rethinking of Australia's relationship with its indigenous inhabitants.

Interestingly, Quadrant magazine has published powerful critiques of some of the outlandish responses to which I have referred.

The Anglican Archbishop of Perth has properly pointed out that the Western Australian Premier's proposal to have a Referendum to take away native title is equivalent to the passage by the Nazis of laws which deprived the Jews of their property.

The notion that it would be "democratic" if a majority comprising 98.5% of the population agreed to take away the rights of the minority constituting the other 1.5% of the popluation, has a very strong resonance for those of us within the Jewish Community. We constitute approximately one half of 1% of the Australian population. We have known in Europe what it is to be deprived by the majority not only of our property, but of all rights including the right to life itself.

Much of the extreme debate, and the over-heated responses that have received such prominent publicity in recent months, have been provoked by the overt politicisation of the question of Native Title, since March 1993.

For the first nine months after the High Court Judgment, there was relatively little of the passionate and angry responses that have been seen more recently.

A process of investigation by an Inter-Departmental Committee was set in train by the Federal Government shortly after the decision was handed down.

The attempts by the Government to translate the report of those Commonwealth bureaucrats into legislative form, and to achieve the support of State Governments in doing so, ineviably turned the question of Native Title into a political football. Once this occurred, significant pressure groups have exerted their influence.

The ultimate irony in Australia's attempt to cope with the Mabo decision is that a proposed Bill has been put forward as a means of protecting Native Tiele, but has also become a vehicle for extinguishing it. And as part of the so-called protection of Native Title, the bureaucrats and politicians were proposing to override the Racial Discrimination Act, the very instrument that the High Court has held is the underlying insurance of any Native Titel that may remain.

As part of a process of re-confirming and validating past non- Aboriginal titles that may be in doubt, it was proposed not merely to validate them, but also to extinguish much of the Native Title that might remain alongside them.

We are still awaiting the final form of that legislation, despite the euphoria and apparent political deal secured in the past week or so.

What has induced so many relatively primitive responses from supposedly respectable and reputable journalists, lawyers, and political leaders?

The answer, I suggest, lies in our history. We have engaged in an exercise of denial, of suppression of the truth, of sweeping away the realities of tec foundation of this nation, which is breathtaking in its scale. In engaging in this denial we have fostered an ignorance which is profound and which permeates all of our institutions. That ignorance lies at the heart of much of what has been said and done by various commentators and leaders in response to the High Court's decision.

Professor C.D. Rowley, writing in 1970, was able to comment:-

"There are still historians who regard Aboriginal affairs as not very important in the development of the Australian nation; even in some university departments, some who think that there is something vaguely disreputable about such studies. The mental block may wel be reinforced by official caution."
And he went on:-

No adequate assessment of the Aboriginal predicament can be made so long as the historical dimension is lacking; it is the absence of information and background which has made it easy for intelligent persons in each successive generation to accept the stereotype ..."
In 1968 Professor Stanner had also reviewed the state of Australia's written history. He found that, even into the 1960's academic and popular books on Australian civilisation which otherwise left little of Australian life and thought unexamined, adopted a total silence on all matters Aboriginal. Stanner concluded that the writings both of the academics and the popularisers of Australian society and its history were arguing that the racial structure which is part of the very fabric of Australian life had no connection with our civilisation, past, present or future. He went on to point out that, inattention on such a scale could not possibly be explained by absent mindedness. He described it as a structural matter, a "view from a window which has been carefully placed to exclude a whole quadrant of the landscape".

Since that time, an extensive re-examination of that history has been undertaken by Professor Henry Reynolds, and by some others. Aboriginal art and culture has come to the forefront of Australian consciousness. Major land rights legislation has taken effect in some States and Territories. But enormous ignorance remains.

I want to take as my theme for the explanation of the cathartic experience which Australia has endured in the last 16 months or so, Stanner's concept of "a cult of forgetfulness on a national scale". Stanner spoke of "dis-remembering" the Aborigines for so long that we were hard put to keep them in mind even when we most wanted to do so.

There are many personal ways in which this "cult of disremembering" has made itself felt. Each of us is a victim of our own education and upbringing. I include among the victims the Bruce Stannards, the Tim Fischers, the Peter Connollys, the Richard Courts and the Hugh Morgans of this world. In the absence of a clear light shed upon the past, prejudice is free to make its own interpretations. By far the great majority of us interpret history to suit our prejudices, from the stories we remember from school history books. Much of white Australian attitudes have been based on the belief that Aborigines were an inferior race, a stone age curiosity "fading away" in the face of western culture. There have been recent changes, but until very recently, strong statements of Aboriginal inferiority remained in school syllabuses.

From an Aboriginal point of view, young people have found that the classroom lesson confirms the often very hard lesson of the play ground. Aboriginal students have been told that they are members of a group which must be led to more effective imitation of whites, that their ancestors, cut off from Europeans for so long, somehow started a long way behind and that eventually they might have the opportunity through the grace and favour of others to join the dominant and superior group.

The reality is also that the lack of historical studies of the interaction of the two racial groups has helped to conceal the role of settlers and governments. Despite Professor Stanner's Boyer lectures in 1968, and Henry Reynold's continuing work, little attempt has been made to face up frankly to the extreme violence of the treatment of Aboriginal people. Professor C.D. Rowley in 1970, provided in his work 'The Destruction of Aboriginal Society" the facts which established that homicide, rape and cruelty have been commonplace over wide areas and long periods. Conjecture about the extent to which people died from European illness rather than homicide, rape and violence is sterile. Cultural deprivation has been as complete as possible over most of the Continent. Economic dispossession was virtually complete. Rowley took the view that in the dry centre possibly more people died from the direct and indirect effects of starvation than from infection by newly introduced diseases or the use of the gun. In the 1970's and 1980's these occurrences were so recent that there were Aboriginal and other non-aboriginal people who remembered them, who were still alive. There are still some, much fewer now, but some people living who could kill an Aboriginal with impunity if not legality when they were young, in the 1930's.

In commenting 25 years ago about the deficiencies of Australia's handling of its relationship with its indigenous inhabitants Stanner was prophetic. He said:

"All land in Australia is held in consequence of an assumption so large, grand and remote from actuality that it had best be called Royal, which is exactly what it was. The Continent at occupation was held to be disposable because it was assumed to be "waste and desert". The truth was that identifiable Aboriginal groups held identifiable parcels of land by unbroken occupancy from a time beyond which, quite literally "the memory of man runneth not to the contrary". The titles which they claimed were conceded by all their fellows. There are still some parts of Australia, including some of the regions within which development is planned or actually taking place, in which living Aborigines occupy and use land that has never been "waste and desert" and to which their titles could be demonstrated to a court of fact if there were such a court. In such areas if the Crown Title was paraded by, every child would say like the child in the fairy tale "But the Emperor is naked ..." This fact is one of the barely acknowledged elements of the real structure of Australia which is working its way towards a more overt expression. Like many another fact overlooked, or forgotten, or reduced to an anachronism and thus confined to the supposedly inconsequential past, it requires only a suitable set of conditions to come to the surface, and be very consequential indeed."
Twenty-five years later that suitable set of conditions came to the surface, and the fact of Native Title has indeed become most consequential. But for most Australians the "cult of disremembering" has continued over that 25 years. And for those for whom that "disremembering" forms an integral part of their own identity, and the national identity, the attempt by the High Court in 1992 to come to grips with the reality of what Professor Stanner had so publicly proclaimed in 1968, has been traumatic indeed.

It is worth restating some of the fundamentals that were expounded by the High Court in the Mabo decision. The Court did not say that titles held by non-Aboriginal people were subject to native title. On the contrary, the Court decided that prior to the arrival of the British, land in Australia was owned by Aboriginal groups in accordance with their customs and traditions. That ownership was extinguished progressively by actual dispossession, and also by the lawful grant of interests in land in the name of the Crown, by Governments, progressively across the country. Insofar as there are still some areas which have not been the subject of that physical dispossession and which have not been the subject of any grants in the name of the Crown by Governments to non-Aboriginal persons, then those Aboriginal groups which still maintain that traditional connection with those lands, are entitled to assert that ownership as a legal right. The Court also pointed out that obviously enough, the titles granted in the name of the Crown by Governments would only take effect if those grants were made lawfully. If they were not made lawfully, then it follows that Aboriginal persons, or others having an interest in the land in question might seek to establish in a Court that the non-Aboriginal Title which was not granted lawfully did not take effect. The Court was not called upon and did not describe whether or not any particular titles granted by governments, would be invalid for any particular reason.

The Racial Discrimination Act was passed by the Federal Parliament in October 1975. It outlaws all conduct which discriminates among Australians on the grounds of race or ethnic origin. It also provides that if a Federal State or Territory law has a discriminatory effect, then the person discriminated against by that law is to be treated as though that discriminatory result did not take effect.

In 1985 the Queensland Parliament passed a law which retrospectively extinguished the traditional rights in land which were claimed in the Mabo case. The High Court held that the Queensland law was in conflict with the Racial Discrimination Act and therefore had no effect in extinguishing the rights claimed by the Murray Islanders.

It is the Racial Discrimination Act which has so frightened and angered tec politicians, the miners, the pastoralists, the journalists and some lawyers. For if indigenous people have rights to land, then those rights may only be taken away in a non-discriminatory way. Thus, since 1975 the continuing dispossession of Aboriginal people may have been unlawful, unless the Racial Discrimination Act is over-ridden or suspended. Hence the on-going political posturing and controversy which has filled the headlines in recent months.

In their judgement in June 1992 the High Court Judges also recited some of the history of dispossession, drawing on the official Historical Records of Australia, Captain Cook's Journal, and the like. Justices Deane and Gaudron draw the dramatic contrast between the writings of Captain Cook in the Log Book of the Endeavour in August 1770, and the writings of a Captain Wharton, who edited the publication of that Log Book in 1893. Cook had written as follows:

"They live in a tranquillity which is not disturbed by the inequality of condition. The earth and sea of their own accord furnishes them with all things necessary for life... They live in a warm and fine climate, and enjoy every wholesome air, so that they have very little need of clothing; ... in short, they seem to set no value upon anything we gave them; nor would they ever part with anything of their own ... this, in my opinion argues that they think themselves provided with all the necessaries of life."
Justices Deane and Gaudron point out that in his notes, Wharton as editor was roundly condemnatory of the "native Australians" and their habits. His portrayal in 1893 was in the following terms:

Their treachery, which is unsurpassed, is simply an outcome of their savage ideas, and in their eyes is a form of independence which resents any intrusion on their land, their wild animals, and their rights generally. In their untutored state they therefore consider that any method of getting rid of the invader is proper ... Although treated by the coarser order of colonists as wild beasts to be extirpated, those who have studied them have formed favourable opinions of their intelligence. The more savage side of their disposition being, however, so very apparent, it is not astonishing that, brought into contact with white settlers, who equally consider that they have a right to settle, the Aborigines are rapidly disappearing."
The High Court Justices say that what the extract makes plain is that the oppression and, in some parts of the continent the obliteration or near obliteration of the Aborigines, were the inevitable consequences of the* being dispossessed of the* traditional lands. They also point out that the fact that particular tribes or clans enjoyed traditional entitlement to the occupation and use of particular lands for their ritual, economic and social purposes was clearly understood, and acknowledged by Government authorities and informal dispatches. They quote James Stephen, probably the most knowledgeable of all the 19th century permanent heads of the Imperial Colonial Office, who noted on a dispatch received from South Australia: "It is an important and unexpected fact that these tribes had proprietary rights in the soil that is, in particular sections of it which were clearly defined or well understood - before the occupation of their country."

Two years later Stephen wrote of "the dispossession of the original inhabitants". The Justices point out that the legal concept of terra nullius, (i.e. that notwithstanding the presence of Aboriginal people, there were no owners of the land), provided the environment in which the Aboriginal people of the Continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homeland. The summary of the position expressed by the two Judges is:

"... there was a conflagration of oppression and conflict which spread across the Continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame."
These are powerful words. They are the inescapable truth. They embarrass us and they force us to re-think our history. Thus the responses of the commentators, politicians and community leaders who have reacted with such venom to the Mabo decision is not solely explicable in terms of an ordinary clash of political or economic interests.

It is worth re-calling that the "cult of dis-remembering" of which Stanner spoke in 1968 had reached its peak in the late 19th century. It manifested itself at the very core of Australia's nationhood. The Constitution adopted in 1901 contained two references to what were described as "Aboriginal natives". The first of them ensured that the national Government would not have any power to pass any laws or adopt any policies in relation to indigenous people, on a national basis. A power was conferred upon the national parliament to make special laws for the people of any race, but "Aboriginal natives" as they were termed were expressly excluded from this federal power. The record of the debates at the Conventions leading to the adoption of the Constitution makes it clear that this conferral of power with respect to the people of "any race" was intended to give a power to the national parliament to discriminate against the Chinese, Japanese and South Sea Islanders, (known at the time as Kanakas).

One of the driving forces towards federation was the White Australia Policy. It was thought that a national policy should be adopted to keep the non-white immigrants out of Australia and out of tho mainstream of Australian life. In relation to immigration the policy was abandoned more than 20 years ago, with little fuss, and no trauma.

The very use of this expression strikes us as offensive at the present time. How could there be a "White Australia Policy" in a nation in which there lived an indigenous black population including, by 1900, a substantial number of people of mixed race, the result of the sexual exploitation by white settlers of indigenous women, wherever those white settlers were in contact with local groups?

However the true import and meaning of the White Australia Policy was manifested in another section of the Constitution. Section 127 expressly provided that in counting the numbers of people of the newly formed Commonwealth, Aboriginal natives were not to be included in the Census. At first glance this might appear to be a relatively harmless provision, dealing with the technicalities of operation of the Census, and perhaps leading to some misleading information, but not really of great significance. The reality is otherwise.

The process of counting the people of the Commonwealth is a critical element of the system of representative democracy that was created under the Constitution. Section 24 of the Constitution sets up the House of Representatives as the House directly elected by the people in accordance with their numbers across Australia. It specifically provides that the numbers of seats from a given State are to be proportionate to the numbers of "people of the State". It does not deal expressly with the system of voting which is to be adopted, but does ensure that the House of Representatives will be elected in accordance with a system that it is as close as possible to representative democracy, for the community which is governed by that Parliament.

Aboriginal people were not merely deprived of the right to vote. The exclusion of them from those who were counted as "people", for the purpose of achieving the representative balance in the House of Representatives, made it clear that the Constitution did not regard them as people who were entitled to be represented at all. Not only did the newly created Federal Parliament not have the right to make laws for such people, but Aborigines were excluded from the new polity, from the new political structure, from the entire fabric of the new nation that was created. For the first 60 or 70 years of this century as Australia progressed as a white nation, its back was turned upon its black people, its eyes averted from their very existence, while the dispossession, the massacres and the destruction of culture continued.

While our founding document excluded the Aboriginal people, it nevertheless embodied fundamentally progressive political notions, for those who formed part of the new nation. The Constitution was adopted only after a plebiscite had been conducted in each Colony. The nation was formed only out of those colonies which themselves agreed to join in the new Federation. The Constitution could only be altered by a Referendum of all of the people.

Of course Aboriginal people did not vote at the colonial plebiscites, and had no vote at any referendum. In essence, our nation was founded upon the basis that the "cult of disremembering" found legal, structural and political expression within the very organs that go to make up the basis upon which Australia was governed.

In 1967, the year before Stanner delivered his memorable Boyer lecture series, thereby commencing tho process of bringing an awareness of the reality of indigenous people back to the forefront of popular consciousness, the Australian people voted at a Referendum to amend the section of the Constitution which blocked the Federal Parliament from adopting any policy on a national basis in relation to Aborigines. At the same time, and with little comment or discussion, section 127, the shameful provision which denied the very existence of Aborigines and Torres Strait Islanders as people, was deleted.

It is interesting to consider how this was achieved. The deletion of section 127 of the Constitution had the result that Aborigines and Torres Strait Islanders would be counted in the Census. The division up of the seats in the House of Representatives in accordance with population, was thus altered so as to reflect the total population in each State, including all Aboriginal and Torres Strait Islander people. However the process by which that change was brought about involved the exercise of a vote at a Referendum by those who constituted "the people" in 1967. It did not include an appropriate or equivalent vote or plebiscite among Australia's indigenous people in order to obtain their agreement.

In the 1890's each of the communities that had joined together to form the new nation hat been asked to vote on the proposal. In 1967, a part of the Australian community, the Aboriginal and Torres Strait Islanders, who had been expressly excluded from that earlier process, and from the entirety of the political structures that had functioned for 67 years, were once again denied the opportunity to vote on a proposal which vitally affected them.

Eventually Australia's indigenous inhabitants must be asked if they wish to join the nation, just as the settler communities in each Colony were asked that question in the 1890's. Until they are given that opportunity, it is inevitable that a significant sense of alienation will continue to exist among Aboriginal and Torres Strait Islander peoples. Many within Aboriginal communities see the 1967 Referendum as yet another policy or decision imposed upon them by the colonial invader. And the legislative proposals of 1993 will be seen by some in the same way.

This brings us back to the astonishing reactions to the Mabo decision - to the decision that some remnants of Aboriginal society still have rights, legally enforceable rights, despite the wholesale destruction and dispossession which was accomplished with the apparent blessings of law and government. What are we now to make of the comments of those who have reacted so ferociously to last years' decision, by accusing others, including the High Count of being part of "the guilt industry"? It is said over and over again that the current generation has no need and no obligation to feel guilt for these unfortunate incidents which occurred in the past.

I suggest that there are two responses to these accusations. Firstly, the argument by some commentators that they have no obligation to feel guilt is self-evidently correct, in the sense that they bear no personal or criminal liability for a criminal act committed by some other person in the past. Yet to state this is to state nothing at all. The issue is not whether one bears personal guilt. The issue is whether as a nation, we can hold up our heads and deal with the reality of our own history and our own relationships with the indigenous people who were dispossessed in the violent ant brutal way that is recorded in official documents dealing with our history, and now restated and acknowledged by the highest Court in the land. It is a cute forensic trick, to argue about guilt. One can equally well say that the current generation of Germans and Austrians are not personally guilty for what happened during the Second World War. To say this is self-evident. it tells us nothing about the responsibility that their nations bear for those acts. Is the world prepared to accept and approve of a teaching of history in their schools which ignores the reality of what their parents and grand parents did to the Jewish people? Mr. Hulme Q.C. in his address to the Samuel Griffith Society, seemed to suggest that today's Germans bear neither guilt nor shame. As Raymond Gaita has pointed out in this month's Quadrant magazine, Hulme is quite wrong about this.

A denial of personal guilt tells us nothing about the degree of pride or shame that we should feel concerning aspects of our history. To talk of "guilt" is to avoid the point. The relevant issue for us is one of national self-image. The relevant question is the kind of country Australia has been in the past, is now, and wishes to be in the future.

Nobody would suggest that we are not entitled to feel pride about the achievements and valour of the Anzacs who stormed Gallipoli, simply because we were not personally there.We have built national myths upon the pride founded on their valour. We take pride in the feats of the great explorers who opened up the Continent, at least in European eyes, to exploration and development. We are entitled to take pride in all of the achievements that go to make us up as a nation, including the great successes of Aboriginal artists, writers, sports people, dancers, public officials and community workers, as well as our astonishing success in absorbing immigrants from so many different cultures.

Equally our response to the brutal aspects of our relationship with the indigenous people of Australia should be one of shame and of responsibility. This includes personal responsibility not in the sense of personal guilt, personal liability for criminal conduct or even personal liability to make recompense. But we all carry a personal responsibility to face up to the reality of the shameful aspects of Australia's past, to be informed about them and to resolve to work differently with Aboriginal people and communities in the future, using this knowledge. We must live with our history, not deny it.

Secondly, inherent in the argument of those who say that they refuse to be guilty for the sins of the past, is the view, expounded by some, especially in the mining industry, that it is really better not to talk about these things at all. Underlying the denial of personal guilt is the denial of the fact themselves which are sought to be brought to attention. The "cult of disremembering" still has its exponents. They have been forced out into the open now, and are fighting a rear guard action. Yet they still seek to advocate the view that it is harmful to race relations in this country or harmful lo Australia generally to keep bringing up these awful things that happened in the past. They are really saying that it is better if we don't talk about it at all.

Similar attitudes prevailed in relation to Australia's convict origins and the details of one's convict ancestry, up until a generation or so ago. More recently, Australians have matured sufficiently to be able to cope with and even to be proud of the fact of convict ancestry. It is no longer something to be shamefully concealed. I have no convict ancestry myself but I proudly acknowledge that my 5 month old grandson Samuel Castan Blashki, is an 8th generation descendant of Emanuel Solomon of Durham in England, who was sentenced to transportation to Van Diemen's Land in 1817 for stealing clothes.

Equally, many Australians with Aboriginal ancestry are, as the Americans say, coming out of the closet. They in turn are subject to vilification and to simple minded criticism. It is said that they are seeking to capitalise on what is somehow thought to be a new era of benefit, or beneficial treatment by reason of that identity. These criticisms are also ill-founded and naive. As Jews we ourselves have endured the shame and pain of being identified as Jewish, in societies in which to be identified as a Jew was to be condemned to a pariah status. And as Jews in Australia we now refuse to deny our identity, or to permit the events of our history to be suppressed merely because it might embarrass those who have sought to destroy us.

The racism that is endemic in Australian society is not some dim distant relic of the past, that can be either written out of the history books, or ignored because we have no personal guilt. It is so endemic as to be part of every one of us here today. The use of the pejorative term "Abo" is still prevalent. Aboriginal children in the school yard are now being called "Mabos". Thus the very word "Mabo", the name of the plaintiff in the High Court case, has become itself a term of abuse. The lofty aim of "reconciliation", relatively newly adopted as a program in recent years has itself become a term of denigration by some, and in political language in certain circles, a current codeword for a racist sneer.

In the 1970's that popular entertainer Rolf Harris amused everybody in Australia with his nonsense song 'Tie Me Kangaroo Down, Sport". We have all enjoyed it and felt that it embodied the essence of Australianism in an entertaining kind of way. None of us paid too much attention to the words. The fourth verse goes like this:

"Let the Abos go loose Bruce
Let the Abos go loose.

They're of no further use Bruce,
Let the Abos go loose."

It shocks us to hear these words today. Yet in truth there is nothing surprising about this brutal and offensive ditty. It reflects the slave status of Aboriginal people in the Australian countryside, and prevailing white attitudes towards them. What is shameful about it, what perhaps should impose personal guilt upon each one of us who is of the generation who have heard this song repeated many times on the airwaves, is the fact that it was not the subject of a single protest. It never became a matter of public controversy. The singing of it over and over again was accepted as an appropriate form of entertainment, and a reflection of Australian popular culture.

The way in which Australia has coped so far with the decision of the High Court on native title, suggests that the nation is truly undergoing a cathartic process, a process totally different to that involved in abandoning the White Australia Policy as a barrier to non-white immigration. Elisabeth Kuhbla-Ross has written much on the process of death and grieving. She has identified a number of stages in the process of grief which occurs upon the loss of a loved one. These include denial, anger, blame, sorrow, and ultimate acceptance. To many Australians, including a large number of those with much power and influence in this country, the High Court has betrayed them.

Despite the obvious that was pointed out by Stanner in 1968, despite the manifest truth of the brutal and violent history so eloquently documented by C.D. Rowley in 1970, and with great vigour by Henry Reynolds more recently, despite the sophisticated analysis of the evidence placed before him by Justice Blackburn in the Gove case in 1971, despite the obvious likelihood that the High Court of Australia would follow Canadian precedent and United States' precedent and New Zealand precedent in relation to the effect of British occupation in colonies in which indigenous inhabitants were located, many Australians of great influence are still grieving at the loss of one of the fundamentals of their own supremacy. They are unable to cope with a perspective which is totally different to their most basic beliefs, founded in their earliest school days. They are still in denial, or are furiously angry about what has happened. Some are still looking for persons on whom they can place blame.

Despite all this, I remain confident about the longer-term future. Our great successes in accepting so many different peoples into a new multi-cultural mix are a true indication of the underlying flexibility and tolerance of Australian society. The reality is that indigenous peoples' rights do exist, they will not go away, and this will eventually be accepted by all. Attempts by politicians to find a so-called "solution" to what is now described as the "Mabo problem" may or may not meet with great success, despite the euphoria of the past week. The notion that there is a legislative solution to every issue, no matter what its nature, reflects the hubris of our political leaders. In the longer run the efforts of our present-day politicians, as they struggle to cope, may well come to be seen as an amusing side-note - a relatively crude attempt to deal with old and new realities, which hopefully will minimise the damage which the political furore has caused to the whole fabric of relations with indigenous people, in this country.

We now know, if we did not know it before, that blood has stained the wattle. We have all been participants in a long and cruel civil war. It is a vital part of who we are, as a People. All Australians will in due course face up to the realities of our history, and to the brutal realities of life today for so many of the displaced and dispossessed indigenous peoples of Australia. As Barrie Kosky has recently said, in a different context, of the Jewish people:

"We must be dragged through our gruelling past in order to arrive at our future."
The Australian catharsis has not been without pain. The boil of racism on the Australian body politic has been lanced. Much ugly matter is coming out. But the significance of Australia's indigenous inhabitants, and of their rights, to our national origins, to our sense of self as a nation, can no longer be avoided or discarded. Whatever the outcome of the current political machinations, a new pride and new political leadership has been created among Aboriginal people, and they will continue to have enormous impact on our Australian life and identity.

The ugly anger of those who are grieving for the old world in which the cult of dis-remembering prevailed, will fade. Many of the current generation of commentators and politicians will in due course be shamed by their recent conduct. Yet Australia will grow as a nation, as it comes to terms with the reality of its own Aboriginal and Islander origins. The cathartic experience of Mabo will eventually be seen as the foundation upon which a new and stronger and uniquely Australian national identity will be forged.


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