Changing the Date Only Changes the Date: Why Australia Day Is Low-Hanging Fruit

I have been consistent for decades in my position on Invasion Day/Australia Day: I don’t recognise the day and changing the date is not necessary nor responsive to the underlying grievance raised by Aboriginal people.

Changing the date makes no sense if you think about the reasons why Aboriginal people protest.

Aboriginal people have protested 26 January for generations. This is not novel. It has long been understood by the broader Australian community that many Aboriginal people do not and will not celebrate the date.

For all the red hot analysis about how confected or newly observed the date of the 26th January is, the reality is that it has co-existed with our protest for decades.

First Nations objections to the 26th January pre-date the ascendancy of pejorative references to “woke culture” or “identity politics”.

The annual Australia Day media hoopla replete with tired clichés of “wokeism” and identity politics has more to do with rapidly depleting media models and revenues and the relentless competition and pursuit for attention. Controversy attracts attention and drives income. Stirring up cultural enmity delivers.

Most Australians are largely unfazed by Aboriginal objections to the day. We have never been a nation that compels homogeneity. Nor do we decree consensus on contested histories of injury; it is this constraint that grounds my scepticism toward expansive assertions of the remedial power and efficacy of national truth commissions.

My own response over the decades to Aus Day has been simple: I stay home. In the past I have walked in marches but these were the olden days when participation was unremarkable and undertaken without documentation.

Australians who wish to celebrate should do so.

What has rendered Australia Day politically toxic is not Aboriginal dissent, which has always been present and principled.

As a constitutional lawyer who has worked on structural change for decades, it can be frustrating to see debates over Australia Day treated as a serious and substantive reform issue when it is, in fact, low-hanging fruit. And when you can see how far behind we are in terms of recognition and rights globally, it can be a distraction.

Changing the date does not address the problem of toxicity and protest because the problem is not the date.

Change the date and the protest will follow to the new date.

Aboriginal objections to 26 January arise from a deeper and unresolved source: the enduring failure of the Australian state to address Unfinished Business. That original grievance remains unaddressed.

The High Court did not recognise Aboriginal sovereignty in Mabo and the case was a doctrinally contorted and conceptually unstable attempt by the High Court to recognise native title. Even so, it recognised First Nations as holding proprietary rights derived from traditional laws and custom. Alarmingly some 2023 referendum research revealed diminishing Australian community knowledge over three decades of Mabo and consequently limited understanding of Aboriginal and Torres Strait Islanders as distinct cultures and collectives, as opposed to the discredited concept of race.

And as subnational developments see progression on Indigenous recognition and rights, such as South Australia’s Voice to Parliament and Victoria’s Voice to Parliament treaty, it may be some mob feel more inclined to celebrate Australian democracy. Liberal accommodation is no small feat. And certainly, social mobility is a factor in one’s feelings of belonging and connection to other Australians apropos a day of celebration.

Regardless, should the date of Australia Day change, the Aboriginal protest will follow because the foundations do not change and the underpinning structural conditions do not change.

Nothing changes, except the day.

Happy Weekend,

MD