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.
The original grievance does remain unaddressed. And so does the psychological compound interest each new generation pays for not acknowledging the First Australian’s sovereignty. Imagine the tables turned. As a white Australian, I can only see upside from addressing intergenerational injury. Colonisation is a stain on Australia that isn’t coming out until its politicians have the strength to acknowledge a simple fact. The British ‘took’ what wasn’t theirs to take.
Implementing real structural power-sharing arrangements means re-founding the nation. Fixation on 'changing the date' amounts to a merely cosmetic move instead of the structural rebuild required. Voice, Treaty, and Truth are not just policy tweaks; they are the blueprints for a completely new Australia: a successor state built on genuine power-sharing rather than colonial inheritance.
Yes. That’s the ideal. However half of Australia at least is barely educated and sadly many amount to the cognitive capacity of Huxley’s ‘epsilon semi-morons’. They vote! It’s no use trying to appeal to the whole of Australia via complex intellectual arguments. It will go over the top of the average Aussie’s head, and might even make the masses hunker down against perceived threats they don’t comprehend.
I believe appealing to the Aussie identity of ‘a fair go for all’ and emotion based arguments, while they might attract disdain from the ‘intellectual/educated’ classes, will do more to wake up and move a mass of poorly educated hard working ordinary Australians toward an honest view of Australia’s indigenous history. I use the time as the dare approaches, to educate as much as possible - not people who read books and research, but those who know no better than to consume daily garbage put out by right wing bigots.
‘Changing the date’ is a tangible step we can all take to stand by our indigenous Australian sisters and brothers and give recognition to the dignity stolen from them.
Racism will still exist, but perhaps continuing to agitate to change the date at the grass roots of Australia will in fact change more than we expect. I won’t give up. I will continue to fight for the date being changed, because most importantly it is a vehicle to spread WHY anyone would want it changed.
Low-hanging fruit can still matter symbolically, but it’s also the form of action most compatible with avoidance. It lets the state appear responsive without touching settlement, sovereignty, or unfinished business. In that sense, the symbolism isn’t neutral. It performs closure while deferring substance.
The point about protest following the date also lands for me. Persistence isn’t a failure of goodwill, it’s a signal. What might change isn’t the existence of protest but its meaning and audience. When the foundations remain intact, the protest is doing diagnostic work, not refusing compromise.
From a whitefella perspective, the discomfort here seems less about division than about impatience. There’s a strong desire for visible resolution without confronting the harder, slower work that structural change demands. That helps explain why Australia cycles through symbolic debates rather than reckoning with unfinished business.
Which makes the piece less an argument against change, and more a warning about mistaking movement for settlement.
I have been pro change the date because some have asked for it and it is such a small token of goodwill, why not. Your essay reminds me that it is not even that when it is used by the media as clickbait to sow further division.
Decades at attending Melbourne’s Invasion Day - in 2026 I stayed home. Some of my reasons, distance myself from the progressive No advocates from Statement from the Heart referendum and the reasons Megan Davis expressed above. Lara, my wife, argued 26 Jan is a good date - melding sorrow and celebration in one day. Why- humanity’s genetic code is a colonial history and multicultural Australia is the worlds best example of that melting pot and celebrating during summer holidays before school and work start full bore. As our world heats up, the hard work to address grievances of continued violence and exploitation are the work for next 364 days in the year to create a fair, collective Australia for the remaining 3/4 quarters of the 21st century.
True! Leon, your comment made me reflect that loads of people I know don’t attend because of the progressive “No” left who were anti-Voice and Uluru but today continue to happily and performatively march for their own self-righteous satisfaction while so many non-urban, non-affluent, non-city mob suffer under the status quo.
Although the present chosen date to celebrate “Australia’s” existence has a regrettable connection to claimed colonisation of the land mass by the British Crown, the real issue is recognition by the whole population of the whole history of this nation state and abandonment of an annual descent into petty culture war debates. If we can get to that point, then we will have something to celebrate, in a spirit of inclusion and respect for diversity which rejects the sour taste of division.
The political class is welded to the denial of colonial impact and genocide. Always was always will be Aboriginal land, always has been, always will be USA’s fiefdom (it hurts to write it)
I always agitate to change the date. Do I think it will mark an end of systemic racial hatred and abuse of traditional owners? No.
But I do think it might carry with it a hint of a (hoped for) tipping point when aboriginal rights and basic human decency and respect are facing a turning corner.
To my mind, changing the date will only represent further acceptance of right to dignity.
I believe it will change something. Will it change everything wrong with Australia’s treatment of indigenous nations? No it wont. Will it be a step toward a new pathway. I believe so.
I understand your logic and appreciate its pertinence in relation to certain human activities. But, as far as the natural instincts of compassion and altruism are concerned, the timeline of evolution is on a vastly larger scale. These natural instincts have been observed in many wild animals that have never attained, whilst living in their natural habitat, any significant degree of higher civilisation.
As most, if not all, wild animals predate the advent of mankind (who share a common ancestor with the chimpanzees), the natural instincts of compassion and altruism also predate mankind.
So, while, as you suggest, the ethics of society have evolved over time, the natural instincts of compassion and altruism (i.e., morality) of individuals have remained constant and continue to do so.
For people like me who believe that most individuals are capable of exercising a certain degree of "free will" (autonomy), and considering that justice means fairness, I esteem that colonisers should treat the colonised fairly and with as much compassion and altruism as circumstances will allow, irrespective of the reigning ethics of society at the time of colonisation and as long as it produces its effects.
I understand your logic and appreciate its pertinence in relation to certain human activities. But, as far as the natural instincts of compassion and altruism are concerned, the timeline of evolution is on a vastly larger scale. These natural instincts have been observed in many wild animals that have never attained, whilst living in their natural habitat, any significant degree of higher civilisation.
As most, if not all, wild animals predate the advent of mankind (who share a common ancestor with the chimpanzees), the natural instincts of compassion and altruism also predate mankind.
So, while, as you suggest, the ethics of society have evolved over time, the natural instincts of compassion and altruism (i.e., morality) of individuals have remained constant and continue to do so.
For people like me who believe that most individuals are capable of exercising a certain degree of "free will" (autonomy), and considering that justice means fairness, I esteem that colonisers should treat the colonised fairly and with as much compassion and altruism as circumstances will allow, irrespective of the reigning ethics of society at the time of colonisation and as long as it produces its effects.
I understand your lassitude. I commiserate with you and sincerely regret the inextricable quandary into which colonisation has plunged so many of our indigenous peoples.
The whole world's indigenous population, estimated at about 476 million in 90 countries, is suffering similar difficulties, handicaps and injustices to those of our Aboriginal and Torres Strait Islander peoples. Apparently, some countries are more advanced than we are, from a legislative point of view, in empowering their indigenous peoples, but it seems very few are more advanced than we are in practice.
Colonialism’s legacy, of course, continues to influence contemporary discussions about sovereignty, which, as we all know, is a fundamental principle that signifies a nation's ultimate authority within its own borders and independence from external control. But, as current world events clearly illustrate, there can be no sovereignty without adequate economic and military independence.
Unfortunately, I personally can't see how this could possibly be achieved by our Aboriginal and Torres Strait Islander compatriots (on their own), Australia's sovereignty (as a whole) regrettably already being far from assured.
As a matter of fact, I even wonder to what extent, prior to colonisation, warring Aboriginal tribes competing for scarce resources like hunting grounds and water sources vital for survival, and often, so it seems, capturing women, granted sovereignty to their colonised victims.
With best wishes,
Rodney Crisp
PS : I intended to post this comment on the Uluru Statement From The Heart post on LinkedIn on the subject of Australia Day, but, unfortunately, comments were closed.
I’m not concerned with arguments about secession and Westphalian state sovereignty. The history of Aboriginal rights advocacy clearly shows aspirations for accommodation within the democratic state. Your argument regarding basic elements of state sovereignty including military and political exigencies are not ones routinely exercised by Aboriginal leaders.
"accomodation within the democratic state" ... Then the damaging thing was the rejection of the Voice proposal. Australia Day, which is not on offer anyway, is no substitute.
Yes, that's understandable, Megan. Terms such as 'sovereignty' and 'self-determination' are often used loosely and out of context. Different shades of grey, I guess.
As for the historical Aboriginal treatment of the members of conquered and colonised tribes and kidnapped women, I'll keep my eyes open, but it seems the chances are slim that any of the reputable anthropologists and social historians have recorded anything of interest on the subject.
Not the sort of thing oral tradition would have passed on.
I doubt the concepts of SD & sov’ty, as we know them to be, pre-dated first contact or the formation of the Australian state. But anthropologists told stories with their own contemporary bias and politics. I found this book useful when writing on this issue at ANU: Geoffrey Gray, A Cautious Silence: The Politics of Australian Anthropology (2007).
Yes, thanks, Megan. The same Jeffrey Grey concluded in "A Military History of Australia", Cambridge University Press, Cambridge, 1999, p. 25 that "Indigenous Australian peoples could not organise anything akin to a battle".
That vision was later contested by a wealth of subsequent research, in particular by archaeologists Nick Thorpe and Mark Allen who demonstrated that archaeological and ethnographic evidence – globally, but especially in Australia – indicated the existence of complex and large-scale military engagements within hunter-gatherer societies.
Further evidence was collated by Christophe Darmangeat (whom you may know). He analysed hundreds of early accounts of intra-Indigenous conflicts, developed an extensive database and published the first comprehensive examination of Indigenous Australian warfare in over a century, entitled "Justice and Warfare in Aboriginal Australia". Darmangeat concluded that frequent and large-scale conflict was indisputable.
It is clear that some version of intrusion (in the sense of deliberate and unlawful incursions into another's territory) occurred frequently and was the source of disputes across most regions, whether raiding for game, water, women or for some other reason.
The research suggests that “invasions” were probably sustained, successful raids that weakened and depleted the group being harassed. Aggressors were reported making other groups “extinct” by controlling their resources and “giving up their hunting ground for the common good”. It would appear that annexation of part of a neighbour's land was not a completely foreign concept and may, perhaps, have even been enshrined in customary law.
If this were to be confirmed by further research, it would be difficult to rule out the possibility that inter-tribal Aboriginal colonisation was practised in Australia well before British colonisation in 1788, no doubt with similar devastating effects on the colonised tribes.
Source : The "International Review of the Red Cross" - Article IRRC N° 914, December 2021
Where are you going with this Rodney? It goes without saying that life in the Stone Age was less civilised than European affairs in the 18th and 19th centuries.
I have always seen our Aboriginal and Torres Strait Islander peoples as the innocent victims of the horrors of British colonisation.
Naively, it had never occurred to me that they, themselves, may have invaded each other's tribes and inflicted similar horrors on themselves ever since they colonised Australia 65,000 years ago.
Should that important finding be confirmed by further evidence, it would undoubtedly shed a different light on British colonisation. The atrocities committed by the latter would no longer be seen in quite the same perspective.
What may be seen is that the boomerang of colonisation had returned and hit them in the face.
A question for Dr Davis where she writes that the Mabo decision was contrived - is that not the way we make progress in the law, by judicial activism of some sort? Same with the Tasmanian Dams case? Conversely if Dr Davis was on the High Court, which we could imagine, would she have insisted on the 'black-letter law' and resisted the temptation to advance land rights, which politicians could never do?
MD is an academic constitutional lawyer who identifies herself as aboriginal. In
this piece she writes that the Mabo decision was concocted by the High Court. The Mabo decision was surely the biggest step forward for aboriginal rights in our history, but at the same time, MD says, it is "concocted".
I hope it was not just a throwaway statement because if so it would be irresponsible. It puts a question mark over our constitution and our courts to have such a major decision described as "concocted" by a highly placed academic constitutional lawyer. This is not to say that the argument is hard to understand, since conservative commentators (John Stone as I remember) said the same at the time.
Dr Davis, I hope you will be saying something more on this matter that you have
raised and I hope it does not go unnoticed by the public and by other legal specialists of your rank.
If you actually read my substack you will see I don’t use the word “concocted” or “contrived”. This is your language. It says the decision was “doctrinally contorted” and “conceptually unstable”. If you read the literature on Mabo, it is an utterly pedestrian (meaning unremarkable and ordinary) critique of Mabo; that it was an uneasy combination of unsettled/settled doctrine. While the High Court of Australia found that the land was occupied and there was a sophisticated system of laws in place, it assimilated the rules of settlement with the rules for a conquered colony. The conquered/settled distinction has been the subject of much literature and criticism. Let me know if you require sources to bring yourself up to date on this literature.
If the Mabo decision was contorted, is this a sign of judicial activism in that judges had to make up legal reasons for laws that they wished to make for political reasons? Lionel Murphy used to say that judges had made the law and judges could change the law. The politicians of the time were not able to legislate directly for land rights directly but they could put sympathetic judges onto the High Court one at a time.
That could be the way we make progress but if so it does not seem entirely honest.
Is this wrong? Further, it seems Dr Davis would have liked the decision to go further in order to correct some faults that she touches on. Could Dr Davis say some more about this, how the law might be and whether it would be constitutionally supportable for the High Court to decide that way?
I will be grateful for any references to sources that could be understood by non-lawyers and I hope other readers might also be interested.
Just for a quick reply rather than a considered follow-up, first thanks and then second sorry for my mistake, I read or remembered contorted as 'concocted'.
Doesn’t it depend on what you do with a new day? How you frame it? I agree with Michelle it seems like the least we can do, like making a stand - it’s not for us to decide what hurts others, rather respect that. We can’t just create another hallmark moment to sell Chinese made Australian flags.
Maybe it is, as you say, an issue of what we do with a new day. I guess I am certain that, for now, with unfinished business, a new day will attract the same ire. Xx
The original grievance does remain unaddressed. And so does the psychological compound interest each new generation pays for not acknowledging the First Australian’s sovereignty. Imagine the tables turned. As a white Australian, I can only see upside from addressing intergenerational injury. Colonisation is a stain on Australia that isn’t coming out until its politicians have the strength to acknowledge a simple fact. The British ‘took’ what wasn’t theirs to take.
Implementing real structural power-sharing arrangements means re-founding the nation. Fixation on 'changing the date' amounts to a merely cosmetic move instead of the structural rebuild required. Voice, Treaty, and Truth are not just policy tweaks; they are the blueprints for a completely new Australia: a successor state built on genuine power-sharing rather than colonial inheritance.
Yes I think this is correct.
Yes. That’s the ideal. However half of Australia at least is barely educated and sadly many amount to the cognitive capacity of Huxley’s ‘epsilon semi-morons’. They vote! It’s no use trying to appeal to the whole of Australia via complex intellectual arguments. It will go over the top of the average Aussie’s head, and might even make the masses hunker down against perceived threats they don’t comprehend.
I believe appealing to the Aussie identity of ‘a fair go for all’ and emotion based arguments, while they might attract disdain from the ‘intellectual/educated’ classes, will do more to wake up and move a mass of poorly educated hard working ordinary Australians toward an honest view of Australia’s indigenous history. I use the time as the dare approaches, to educate as much as possible - not people who read books and research, but those who know no better than to consume daily garbage put out by right wing bigots.
‘Changing the date’ is a tangible step we can all take to stand by our indigenous Australian sisters and brothers and give recognition to the dignity stolen from them.
Racism will still exist, but perhaps continuing to agitate to change the date at the grass roots of Australia will in fact change more than we expect. I won’t give up. I will continue to fight for the date being changed, because most importantly it is a vehicle to spread WHY anyone would want it changed.
Low-hanging fruit can still matter symbolically, but it’s also the form of action most compatible with avoidance. It lets the state appear responsive without touching settlement, sovereignty, or unfinished business. In that sense, the symbolism isn’t neutral. It performs closure while deferring substance.
The point about protest following the date also lands for me. Persistence isn’t a failure of goodwill, it’s a signal. What might change isn’t the existence of protest but its meaning and audience. When the foundations remain intact, the protest is doing diagnostic work, not refusing compromise.
From a whitefella perspective, the discomfort here seems less about division than about impatience. There’s a strong desire for visible resolution without confronting the harder, slower work that structural change demands. That helps explain why Australia cycles through symbolic debates rather than reckoning with unfinished business.
Which makes the piece less an argument against change, and more a warning about mistaking movement for settlement.
Yes, agree. Thank you for the thoughtful reply especially the point about mistaking movement for settlement.
I have been pro change the date because some have asked for it and it is such a small token of goodwill, why not. Your essay reminds me that it is not even that when it is used by the media as clickbait to sow further division.
Decades at attending Melbourne’s Invasion Day - in 2026 I stayed home. Some of my reasons, distance myself from the progressive No advocates from Statement from the Heart referendum and the reasons Megan Davis expressed above. Lara, my wife, argued 26 Jan is a good date - melding sorrow and celebration in one day. Why- humanity’s genetic code is a colonial history and multicultural Australia is the worlds best example of that melting pot and celebrating during summer holidays before school and work start full bore. As our world heats up, the hard work to address grievances of continued violence and exploitation are the work for next 364 days in the year to create a fair, collective Australia for the remaining 3/4 quarters of the 21st century.
True! Leon, your comment made me reflect that loads of people I know don’t attend because of the progressive “No” left who were anti-Voice and Uluru but today continue to happily and performatively march for their own self-righteous satisfaction while so many non-urban, non-affluent, non-city mob suffer under the status quo.
Although the present chosen date to celebrate “Australia’s” existence has a regrettable connection to claimed colonisation of the land mass by the British Crown, the real issue is recognition by the whole population of the whole history of this nation state and abandonment of an annual descent into petty culture war debates. If we can get to that point, then we will have something to celebrate, in a spirit of inclusion and respect for diversity which rejects the sour taste of division.
True xx
The political class is welded to the denial of colonial impact and genocide. Always was always will be Aboriginal land, always has been, always will be USA’s fiefdom (it hurts to write it)
I always agitate to change the date. Do I think it will mark an end of systemic racial hatred and abuse of traditional owners? No.
But I do think it might carry with it a hint of a (hoped for) tipping point when aboriginal rights and basic human decency and respect are facing a turning corner.
To my mind, changing the date will only represent further acceptance of right to dignity.
I believe it will change something. Will it change everything wrong with Australia’s treatment of indigenous nations? No it wont. Will it be a step toward a new pathway. I believe so.
That is why I will continue my ongoing agitation
to change the date.
.
Dear Robert,
I understand your logic and appreciate its pertinence in relation to certain human activities. But, as far as the natural instincts of compassion and altruism are concerned, the timeline of evolution is on a vastly larger scale. These natural instincts have been observed in many wild animals that have never attained, whilst living in their natural habitat, any significant degree of higher civilisation.
As most, if not all, wild animals predate the advent of mankind (who share a common ancestor with the chimpanzees), the natural instincts of compassion and altruism also predate mankind.
So, while, as you suggest, the ethics of society have evolved over time, the natural instincts of compassion and altruism (i.e., morality) of individuals have remained constant and continue to do so.
For people like me who believe that most individuals are capable of exercising a certain degree of "free will" (autonomy), and considering that justice means fairness, I esteem that colonisers should treat the colonised fairly and with as much compassion and altruism as circumstances will allow, irrespective of the reigning ethics of society at the time of colonisation and as long as it produces its effects.
Rodney
.
.
Dear Robert,
I understand your logic and appreciate its pertinence in relation to certain human activities. But, as far as the natural instincts of compassion and altruism are concerned, the timeline of evolution is on a vastly larger scale. These natural instincts have been observed in many wild animals that have never attained, whilst living in their natural habitat, any significant degree of higher civilisation.
As most, if not all, wild animals predate the advent of mankind (who share a common ancestor with the chimpanzees), the natural instincts of compassion and altruism also predate mankind.
So, while, as you suggest, the ethics of society have evolved over time, the natural instincts of compassion and altruism (i.e., morality) of individuals have remained constant and continue to do so.
For people like me who believe that most individuals are capable of exercising a certain degree of "free will" (autonomy), and considering that justice means fairness, I esteem that colonisers should treat the colonised fairly and with as much compassion and altruism as circumstances will allow, irrespective of the reigning ethics of society at the time of colonisation and as long as it produces its effects.
Rodney
.
Dear Megan (if I may),
I understand your lassitude. I commiserate with you and sincerely regret the inextricable quandary into which colonisation has plunged so many of our indigenous peoples.
The whole world's indigenous population, estimated at about 476 million in 90 countries, is suffering similar difficulties, handicaps and injustices to those of our Aboriginal and Torres Strait Islander peoples. Apparently, some countries are more advanced than we are, from a legislative point of view, in empowering their indigenous peoples, but it seems very few are more advanced than we are in practice.
Colonialism’s legacy, of course, continues to influence contemporary discussions about sovereignty, which, as we all know, is a fundamental principle that signifies a nation's ultimate authority within its own borders and independence from external control. But, as current world events clearly illustrate, there can be no sovereignty without adequate economic and military independence.
Unfortunately, I personally can't see how this could possibly be achieved by our Aboriginal and Torres Strait Islander compatriots (on their own), Australia's sovereignty (as a whole) regrettably already being far from assured.
As a matter of fact, I even wonder to what extent, prior to colonisation, warring Aboriginal tribes competing for scarce resources like hunting grounds and water sources vital for survival, and often, so it seems, capturing women, granted sovereignty to their colonised victims.
With best wishes,
Rodney Crisp
PS : I intended to post this comment on the Uluru Statement From The Heart post on LinkedIn on the subject of Australia Day, but, unfortunately, comments were closed.
.
I’m not concerned with arguments about secession and Westphalian state sovereignty. The history of Aboriginal rights advocacy clearly shows aspirations for accommodation within the democratic state. Your argument regarding basic elements of state sovereignty including military and political exigencies are not ones routinely exercised by Aboriginal leaders.
"accomodation within the democratic state" ... Then the damaging thing was the rejection of the Voice proposal. Australia Day, which is not on offer anyway, is no substitute.
.
Yes, that's understandable, Megan. Terms such as 'sovereignty' and 'self-determination' are often used loosely and out of context. Different shades of grey, I guess.
As for the historical Aboriginal treatment of the members of conquered and colonised tribes and kidnapped women, I'll keep my eyes open, but it seems the chances are slim that any of the reputable anthropologists and social historians have recorded anything of interest on the subject.
Not the sort of thing oral tradition would have passed on.
It's a pity, really. Would have been interesting.
Have a nice day, Megan.
Rodney
I doubt the concepts of SD & sov’ty, as we know them to be, pre-dated first contact or the formation of the Australian state. But anthropologists told stories with their own contemporary bias and politics. I found this book useful when writing on this issue at ANU: Geoffrey Gray, A Cautious Silence: The Politics of Australian Anthropology (2007).
.
Yes, thanks, Megan. The same Jeffrey Grey concluded in "A Military History of Australia", Cambridge University Press, Cambridge, 1999, p. 25 that "Indigenous Australian peoples could not organise anything akin to a battle".
That vision was later contested by a wealth of subsequent research, in particular by archaeologists Nick Thorpe and Mark Allen who demonstrated that archaeological and ethnographic evidence – globally, but especially in Australia – indicated the existence of complex and large-scale military engagements within hunter-gatherer societies.
Further evidence was collated by Christophe Darmangeat (whom you may know). He analysed hundreds of early accounts of intra-Indigenous conflicts, developed an extensive database and published the first comprehensive examination of Indigenous Australian warfare in over a century, entitled "Justice and Warfare in Aboriginal Australia". Darmangeat concluded that frequent and large-scale conflict was indisputable.
It is clear that some version of intrusion (in the sense of deliberate and unlawful incursions into another's territory) occurred frequently and was the source of disputes across most regions, whether raiding for game, water, women or for some other reason.
The research suggests that “invasions” were probably sustained, successful raids that weakened and depleted the group being harassed. Aggressors were reported making other groups “extinct” by controlling their resources and “giving up their hunting ground for the common good”. It would appear that annexation of part of a neighbour's land was not a completely foreign concept and may, perhaps, have even been enshrined in customary law.
If this were to be confirmed by further research, it would be difficult to rule out the possibility that inter-tribal Aboriginal colonisation was practised in Australia well before British colonisation in 1788, no doubt with similar devastating effects on the colonised tribes.
Source : The "International Review of the Red Cross" - Article IRRC N° 914, December 2021
Here is the link : http://international-review.icrc.org/sites/default/files/reviews-pdf/2021-12/indigenous-australian-laws-of-war-914.pdf
Rodney
.
Where are you going with this Rodney? It goes without saying that life in the Stone Age was less civilised than European affairs in the 18th and 19th centuries.
.
Dear Robert,
I have always seen our Aboriginal and Torres Strait Islander peoples as the innocent victims of the horrors of British colonisation.
Naively, it had never occurred to me that they, themselves, may have invaded each other's tribes and inflicted similar horrors on themselves ever since they colonised Australia 65,000 years ago.
Should that important finding be confirmed by further evidence, it would undoubtedly shed a different light on British colonisation. The atrocities committed by the latter would no longer be seen in quite the same perspective.
What may be seen is that the boomerang of colonisation had returned and hit them in the face.
Rodney
.
Yes I thought a reply would be in order to clarify what sovereignty means to those who might be asking for it on behalf of the aborigines.
A question for Dr Davis where she writes that the Mabo decision was contrived - is that not the way we make progress in the law, by judicial activism of some sort? Same with the Tasmanian Dams case? Conversely if Dr Davis was on the High Court, which we could imagine, would she have insisted on the 'black-letter law' and resisted the temptation to advance land rights, which politicians could never do?
MD is an academic constitutional lawyer who identifies herself as aboriginal. In
this piece she writes that the Mabo decision was concocted by the High Court. The Mabo decision was surely the biggest step forward for aboriginal rights in our history, but at the same time, MD says, it is "concocted".
I hope it was not just a throwaway statement because if so it would be irresponsible. It puts a question mark over our constitution and our courts to have such a major decision described as "concocted" by a highly placed academic constitutional lawyer. This is not to say that the argument is hard to understand, since conservative commentators (John Stone as I remember) said the same at the time.
Dr Davis, I hope you will be saying something more on this matter that you have
raised and I hope it does not go unnoticed by the public and by other legal specialists of your rank.
If you actually read my substack you will see I don’t use the word “concocted” or “contrived”. This is your language. It says the decision was “doctrinally contorted” and “conceptually unstable”. If you read the literature on Mabo, it is an utterly pedestrian (meaning unremarkable and ordinary) critique of Mabo; that it was an uneasy combination of unsettled/settled doctrine. While the High Court of Australia found that the land was occupied and there was a sophisticated system of laws in place, it assimilated the rules of settlement with the rules for a conquered colony. The conquered/settled distinction has been the subject of much literature and criticism. Let me know if you require sources to bring yourself up to date on this literature.
If the Mabo decision was contorted, is this a sign of judicial activism in that judges had to make up legal reasons for laws that they wished to make for political reasons? Lionel Murphy used to say that judges had made the law and judges could change the law. The politicians of the time were not able to legislate directly for land rights directly but they could put sympathetic judges onto the High Court one at a time.
That could be the way we make progress but if so it does not seem entirely honest.
Is this wrong? Further, it seems Dr Davis would have liked the decision to go further in order to correct some faults that she touches on. Could Dr Davis say some more about this, how the law might be and whether it would be constitutionally supportable for the High Court to decide that way?
I will be grateful for any references to sources that could be understood by non-lawyers and I hope other readers might also be interested.
Just for a quick reply rather than a considered follow-up, first thanks and then second sorry for my mistake, I read or remembered contorted as 'concocted'.
Doesn’t it depend on what you do with a new day? How you frame it? I agree with Michelle it seems like the least we can do, like making a stand - it’s not for us to decide what hurts others, rather respect that. We can’t just create another hallmark moment to sell Chinese made Australian flags.
Maybe it is, as you say, an issue of what we do with a new day. I guess I am certain that, for now, with unfinished business, a new day will attract the same ire. Xx
great piece here by Daniel James here in substack on the distraction of the date https://open.substack.com/pub/thespencerstreetend/p/dispatch-from-an-australian-summer?r=oszw&utm_medium=ios&shareImageVariant=overlay