Should the date of Australia day (and/or name) be changed?

[rocksonchan]

I think no matter whether we change Australia Day or not there will be those who agree and those who don't. If we change it, sure Indigenous Australians may be less viciously against it, but there will most likely be backlash from the community who have and still enjoy Australia Day as it currently stands. Not changing it would just do the opposite. I believe it's a lose-lose situation but unfortunately not changing anything is already a choice in itself. The government is effectively trapped in my opinion.

[Son of Thatcher]

I agree that is what would happen in an ideal world - however "substantial change" to the current status quo is easier said than done, especially considering the fact that the vast changes needed to Close the Gap is unlikely to be effected in single terms. The fact that even symbolic changes are meeting such resistance is a reflection of the wide-scale entrenched disregard for Indigenous Australian issues.

It's pretty clear we take opposing views on this issue. You see stiff resistance to symbolic change as evidence of 'entrenched disregard' that must be rectified at all costs; an exigent to push even more vociferously for that change. I see it as evidence of the need to work on more substantive issues first to illustrate that change won't cause the world to come crashing down. The fact that such symbolic change is meeting stiff resistance would seem to corroborate my theory that the hard yakka and groundwork making the case for change hasn't been made, the kind that would be best illustrated by firm action.

How do we expect a government and a people, who aren't willing to change a mere date, to prioritise and tackle the massive burden of Indigenous issues?

Forgive me if I am misinterpreting you, but you talk of a 'mere date'. If that's the case, then why get vexed about it? Aren't there more important issues to worry about?

Yes, the Rudd government probably did not effect many substantive Indigenous policies - but in contrast the Howard administration, who refused to apologise, effected some policies and decisions that seemed actively hostile to Indigenous Australians: tightening Native Title laws, voting against the UNDRIP, and abolishing the ATSIC amongst others. It just goes to show that in many cases, symbolic gestures represent values and attitudes on a larger scale, which is why Australia Day and constitutional recognition are matters of such significance in this debate.
TBH, as to precluding substantive action: really, nothing much is being done right now anyway, whichever way the Australia Day debate goes. Might as well get this issue sorted.

*Deep breath* okay, I'm going to go dissect this point-by-point.

but in contrast the Howard administration, who refused to apologise

Yes, the Howard Government refused to apologise, but let's examine why they chose that course of action. The Coalition, most of all Prime Minister Howard, believed that it was ridiculous that citizens who have absolutely no connection with the intial colonisation, have a government apologise on their behalf. Indeed, many (including myself) find such a proposal outrageous. Yes, those things happened and it's important to acknowledge them (which the Howard Government *did* do by its issuing of a statement of regret) and I freely accept them as historical fact. But at the same time, to continue to try and extract that kind of change by playing the blame-game creates all sorts of unecessary division. And for what!? Nothing but a speech.

tightening Native Title laws

There was no hostility. This was something absolutely necessary in the minds of many people; the Wik Decision had moved the pendulum too far in favour of Native Title claimaints in a way that may have caused lasting economic damage. I might add, this was a position supported by the electorate, highlighted by the Howard Government's three subsequent election victories with this legislation as a key policy. Note that it was not changed by the Labor Party when they won in 2007.

voting against the UNDRIP

This had more to do with affirming the principle of state sovereignty over the heavy hand of international law. It will be for the Australian state to decide how we deal with Indigenous issues, not an unelected body staffed by far more violent human rights abusers, Saudi Arabia, for example. Furthermore, if ever there was an argument for pure symbolism to the detriment of practical policy, then it would be difficult to find a more prescient example than the UN; a toothless rubber-stamp organisation designed to make world leaders feel good about doing...nothing. Hell, UNDRIP wasn't even binding as it was passed by the General Assembly; I'd call that the height of symbolic fecklessness.

and abolishing the ATSIC

ATSIC's abolition was not an attack on Indigenous Australians at all, but merely in response to the widespread allegations of failure, corruption, waste and scandal that had swirled around the organisation like a posionous vortex. Even Labor in 2004 accepted that it had to go.

And I'd have to disagree. If anything, the Howard administration passed the most important Indigenous legislation of all time with the exception of Native Title; the Federal Intervention. When the study showing that of the 3,000 Aboriginal communities surveyed in the Northern Territory, every single one had instances of domestic violence, the government acted swiftly and immediately to resolve the issue. This was not publicised, but it certainly was substantive change, whether it was right or wrong.

In a way, you've kind of undercut your own argument. Your listing of all these changes would indicate that the Howard Government was one of the most active in pursuing real and effective change for the Aboriginal community, regardless of whether you disgaree with the actions undertaken or not.

Australia was founded upon the very much realist considerations of the British Empire to preclude French expansion, to replace the lost territory of the USA, to facilitate trade and to pretty much dispose of convicts. I don't believe the settlers were considering many moral principles when they settled Australia and, if they did, the courtesy was not extended to Indigenous Australians nor the British convicts, many of whom were mercilessly abused by those in power. Political freedom and constitutionalism was not really a thing either - early colonial Australia was practically an autocracy under the Governor until the Legislative Council was established, and even then only the interests of some groups were considered.
Morals change over time and I don't believe the values and principles the First Fleet represented is suitable for contemporary Australia, the least of which is our egalitarianism. Today, Australia's national identity is decidedly independent from Britain - hence why the original third and fourth verses of our national anthem was removed - and the date of our national day should aim to reflect that.

This is a very reductionist perspective and one I totally reject. But more to the point, it isn't necssarily what I was saying. I never argued that Australia was founded with noble intentions, far from it. I simply said that over time, being Australian and the values that the Constitution have come to stand for have found a special place in the hearts and minds of most Australians. These principles could never have existed were it not for British influence and the arrival of the English; our national identity is not as distinctly independent as you suggest. There is significant British influence, including the values I elaborated on in my previous post.

But in the technical sense, Australia wasn't settled legally. The "settlement" of Australia was based on the legal fiction of terra nullius denying the Indigenous Australians were even human, that was rejected by the High Court of Australia in Mabo v Qld (No.2). Even though now the ownership is just "native title" and restricted for a number of pragmatic reasons, it's pretty much implied that Australia is stolen land. It's impossible to restore the land to exclusive Indigenous control now, but the least we can do is acknowledge their traditional ownership and respect their wishes.

This is a common misconception of the Mabo Decision. The High Court never resolved the question of legal settlement. In fact, in their judgement, they explicitly acknowledge that neither they nor any Australian court has the jurisdiction to hear claims of sovereignty since all the courts in Australia derive their power from that very sovereignty. Now, I know I'm cheating here since I have access to legal databases at UTS (sorry!) but here is what Brennan J discussed (at 23) in Mabo v Queensland (No. 2) (1992) by citing the principle established in New South Wales v Commonwealth (Seas and Submerged Lands) (1975); '...the acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.'

Under the international law of the 18th Century, there were three ways to aquire new territory:

1. Cession (land surrendered by treaty)
2. Conquest (forcible annexation of land)
3. Effective Occupation (where no prior claim to sovereignty existed i.e. terra nullius)

The overturning of terra nullius didn't alter the claim to sovereignty of the Australian and its antecedents, on the contrary. It simply acknowledged that the doctrine of terra nullius was wrong. That there were people with a legitimate system of law here prior to the arrival of the English. I repeat, this most certainly does NOT undermine Australian sovereignty, meaning that there is no implication of this being stolen land. What's the difference you ask? The distinction that this recognition created was extremely important for it meant that the laws and customs of the Indigenous people had not in fact been extinguished. This was in contrast to the doctrine of terra nullius which did not recognise any form of native law at all; the land was believed to be uninhabitied.

Even from a non-legal perspective, the coercion, deception or outright annihilation that was used to dispossess Indigenous Australians of their traditional lands is absolutely egregious and goes against all the moral principles that we claim to stand by.

From a non-legal perspective, it's important to recognise that this happened, certainly. But it's also equally vital to realise that this *was* the 1700s, with a vastly different system of law and morality. Reaching into the past to critique the decisions of past government and people with a modern system of values is the most egregious form of anachronism that empiricists like myself wholeheartedly reject. It creates a bizzare situation whereby we spend most of our time repudating past actions instead of learning from them.

Either way, I don't believe anyone (other than the rarely found extremist) is demanding the dismantling of the Australian state or that all non-Indigenous Australians "go back to where they came from"; mostly it's just the acknowledgement and remediation of past wrongs and current injustices.

They may not be advocating it, but it's implicit. If something is stolen, do you get to keep it, or do you have to give it back? Of course, we know it's the latter. Just because it's culturally convenient and something that happened so long ago, doesn't change that at all. Naturally, the reason most proponents of this notion of 'stolen land' ignore this fact is because it would be a ridiculous logistical impossibility, not to mention inconvenient for them to embrace. Nevertheless, it is still 100% hypocrisy.

[kani]

It's pretty clear we take opposing views on this issue. You see stiff resistance to symbolic change as evidence of 'entrenched disregard' that must be rectified at all costs; an exigent to push even more vociferously for that change. I see it as evidence of the need to work on more substantive issues first to illustrate that change won't cause the world to come crashing down. The fact that such symbolic change is meeting stiff resistance would seem to corroborate my theory that the hard yakka and groundwork making the case for change hasn't been made, the kind that would be best illustrated by firm action.

Happy to agree to disagree with you I'm aware that this debate is definitely one that not everybody is going to see eye to eye on, but discussions like this help both bystanders and the opinionated get a clearer idea of the issues involved and to break echo chambers, which is why I'm so glad that AN debates don't dissolve into the ad hominem cesspool that ones on other social media tend to become.
Sorry if I start to sound hostile in any of these responses BTW, I have absolutely nothing personal against you or anyone else!

also spoilered some parts cos this post is getting mammoth and kinda off topic. my bad, sorry

Forgive me if I am misinterpreting you, but you talk of a 'mere date'. If that's the case, then why get vexed about it? Aren't there more important issues to worry about?

I say "mere date" because it is a relatively unobtrusive change compared to the complete overhaul required to tackle other Indigenous Australian issues. The fact that people aren't even willing to budge on this small and symbolic change suggest (to me, at least) that the "more important issues" aren't even in our field of vision yet.

Yes, the Howard Government refused to apologise, but let's examine why they chose that course of action. The Coalition, most of all Prime Minister Howard, believed that it was ridiculous that citizens who have absolutely no connection with the intial colonisation, have a government apologise on their behalf. Indeed, many (including myself) find such a proposal outrageous. Yes, those things happened and it's important to acknowledge them (which the Howard Government *did* do by its issuing of a statement of regret) and I freely accept them as historical fact. But at the same time, to continue to try and extract that kind of change by playing the blame-game creates all sorts of unnecessary division. And for what!? Nothing but a speech.

I don't see how it is inappropriate for a successor to apologise on behalf of past administrations and try to remedy past wrongs, especially when the Stolen Generations was by no means something that happened "once upon a time". Japan was still apologising for WWII atrocities in 2015. Howard's avoidance of a formal apology had a lot to do with trying to avoid legal (read, financial) baggage related to those affected by the policy, and as such is directly emblematic of an unwillingness to confront the problem. A speech is sometimes not just a speech.
Also, if we as a population "have absolutely no connection with the initial colonisation", then why are we celebrating Australia Day on 26th January?

This is a very reductionist perspective and one I totally reject. But more to the point, it isn't necessarily what I was saying. I never argued that Australia was founded with noble intentions, far from it. I simply said that over time, being Australian and the values that the Constitution have come to stand for have found a special place in the hearts and minds of most Australians. These principles could never have existed were it not for British influence and the arrival of the English; our national identity is not as distinctly independent as you suggest. There is significant British influence, including the values I elaborated on in my previous post.

Why not celebrate when those values actually manifested in practice? There are many significant dates that shaped Australia as it is now: when the Constitution received royal assent (9th July), Australia Act (4th Dec or 3rd March), opening of Commonwealth Parliament (9th May), so many milestones that actually correlate with the values we are claiming to celebrate. The Australian nation that we love and celebrate is not simply the British colony founded upon the arrival of the First Fleet - it's gone through and represents so much more than the backwards values of 1788, and I don't believe the date of our current national day does our nation justice.

From a non-legal perspective, it's important to recognise that this happened, certainly. But it's also equally vital to realise that this *was* the 1700s, with a vastly different system of law and morality. Reaching into the past to critique the decisions of past government and people with a modern system of values is the most egregious form of anachronism that empiricists like myself wholeheartedly reject. It creates a bizzare situation whereby we spend most of our time repudating past actions instead of learning from them.

I agree that we should not dwell excessively on the past. But recognition doesn't just mean to acknowledge "Oh, yeah, that happened." We have a duty to go beyond that, to try and correct the injustices, especially when the effects are so widespread and perceivable even today. The least of those actions is to stop celebrating our nation on a date with such divisive connotations.
The same way that you associate the arrival of the British with cherished Australian values such as freedom and constitutionalism, Indigenous Australians (understandably) associate that same event with dispossession, oppression, humiliation and suffering. The date of the First Fleet's arrival simply isn't suitable to celebrate our national day on.

Howard government policies

There was no hostility. This was something absolutely necessary in the minds of many people; the Wik Decision had moved the pendulum too far in favour of Native Title claimaints in a way that may have caused lasting economic damage. I might add, this was a position supported by the electorate, highlighted by the Howard Government's three subsequent election victories with this legislation as a key policy. Note that it was not changed by the Labor Party when they won in 2007.

I guess this is really a conflict of values here. The way I see it, the conditions of native titles can be construed to be less obtrusive for lease-owners and somewhat acceptable for Indigenous Australians. Yet instead of attempting to mediate, the policy outright extinguished native title claims in areas of commercial interest with no room for protest, effectively saying to Indigenous Australians: "If there's big bucks involved, we don't give a shit about you." If that's not divisive then I don't know what is.
Also, whilst it is important due to the structure of our political system, public support does not in and of itself justify the morality of an issue, especially when it's only a minority's rights being compromised.

This had more to do with affirming the principle of state sovereignty over the heavy hand of international law. It will be for the Australian state to decide how we deal with Indigenous issues, not an unelected body staffed by far more violent human rights abusers, Saudi Arabia, for example. Furthermore, if ever there was an argument for pure symbolism to the detriment of practical policy, then it would be difficult to find a more prescient example than the UN; a toothless rubber-stamp organisation designed to make world leaders feel good about doing...nothing. Hell, UNDRIP wasn't even binding as it was passed by the General Assembly; I'd call that the height of symbolic fecklessness.

I would argue that Australia later turned its vote anyway and seemed to have no qualms with other 'heavy-handed' instruments of international law including UDHR - but it's pretty obvious by now that we disagree fundamentally on the value of symbolism and no amount of debate is going to change that.

ATSIC's abolition was not an attack on Indigenous Australians at all, but merely in response to the widespread allegations of failure, corruption, waste and scandal that had swirled around the organisation like a posionous vortex. Even Labor in 2004 accepted that it had to go.

Yes, the institution had significant problems in its workings, but simply abolishing the ATSIC and neglecting to set up a functional, long-term replacement has ruled out the Indigenous self-determination that is fundamental to resolving the problems.

If anything, the Howard administration passed the most important Indigenous legislation of all time with the exception of Native Title; the Federal Intervention. When the study showing that of the 3,000 Aboriginal communities surveyed in the Northern Territory, every single one had instances of domestic violence, the government acted swiftly and immediately to resolve the issue. This was not publicised, but it certainly was substantive change, whether it was right or wrong.
In a way, you've kind of undercut your own argument. Your listing of all these changes would indicate that the Howard Government was one of the most active in pursuing real and effective change for the Aboriginal community, regardless of whether you disgaree with the actions undertaken or not.

But the NTNERA exemplifies hostility to an incredible degree - it's considered to be a condescending and culturally insensitive policy by many if not most Indigenous Australians. Either way, its effectiveness is doubtful: a Monash study in 2015 showed it created little progress in all fields except education, and the gap actually widened in economic areas and incarceration rates. Youth suicide rates have also increased 500%. There's a widespread perception that "nothing has changed for the better." Not to mention that NTNERA is also generally considered to be incompatible with international human rights laws and completely ignores the social, cultural and at times property rights of Indigenous Australians, and had to suspend parts of the RDA to maintain its legality.
Perhaps the Howard government had the best of intentions when enacting it - that's what I'd like to think. However, if the "substantive change" comes at the cost of bulldozing human rights, then I'm not sure it's the steps we want, and to be fair the Howard government's initiatives widened the ideological rifts between Indigenous and non-Indigenous Australia if anything.

"stolen land"

This is a common misconception of the Mabo Decision. The High Court never resolved the question of legal settlement. In fact, in their judgement, they explicitly acknowledge that neither they nor any Australian court has the jurisdiction to hear claims of sovereignty since all the courts in Australia derive their power from that very sovereignty. Now, I know I'm cheating here since I have access to legal databases at UTS (sorry!) but here is what Brennan J discussed (at 23) in Mabo v Queensland (No. 2) (1992) by citing the principle established in New South Wales v Commonwealth (Seas and Submerged Lands) (1975); '...the acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.'

Under the international law of the 18th Century, there were three ways to aquire new territory:

1. Cession (land surrendered by treaty)
2. Conquest (forcible annexation of land)
3. Effective Occupation (where no prior claim to sovereignty existed i.e. terra nullius)

The overturning of terra nullius didn't alter the claim to sovereignty of the Australian and its antecedents, on the contrary. It simply acknowledged that the doctrine of terra nullius was wrong. That there were people with a legitimate system of law here prior to the arrival of the English. I repeat, this most certainly does NOT undermine Australian sovereignty, meaning that there is no implication of this being stolen land. What's the difference you ask? The distinction that this recognition created was extremely important for it meant that the laws and customs of the Indigenous people had not in fact been extinguished. This was in contrast to the doctrine of terra nullius which did not recognise any form of native law at all; the land was believed to be uninhabitied.

Yes, I'm aware the High Court didn't touch on the issue of legal settlement - however the mere fact that terra nullius was overturned is enough. International law at the time recognised only the three forms of acquiring territory, as you have listed, and the British acquisition of Australia fits none of the criteria without the justification of a legal fiction. The fact that the High Court upheld Imperial sovereignty is inevitable: not only because of the precedent you cited, but also because de facto control for a long enough period of time becomes indistinguishable with sovereignty, especially when coupled with colonisation and overrunning of the original inhabitants.
Besides, expecting a court of English common law, which has evolved to protect Imperial interests, to deliver an unbiased authority on the issue is... unrealistic, to say the least. Native title is a leeway, a compromise between the growing international interest in human rights and the interests of those with de facto control over the land without losing too much face or giving up too much. Really, doesn't the fact that state governments are dishing out millions of dollars of compensation for native title claims say something about whether the land was stolen or not?

They may not be advocating it, but it's implicit. If something is stolen, do you get to keep it, or do you have to give it back? Of course, we know it's the latter. Just because it's culturally convenient and something that happened so long ago, doesn't change that at all. Naturally, the reason most proponents of this notion of 'stolen land' ignore this fact is because it would be a ridiculous logistical impossibility, not to mention inconvenient for them to embrace. Nevertheless, it is still 100% hypocrisy.

I think you're over-simplifying the process. It's one thing to have an item stolen from you, catch the thief, then demand its return. It's another to be dispossessed of your ancestral home, have it demolished/reconstructed/renovated beyond recognition, and only then be able to demand for its return. Since it's no longer what you had stolen from you, damages seems a much more reasonable method of compensation - which is exactly what is happening in many native title claim cases around the country. The process is complicated by the fact that you have to seek justice by going to a court established and run by those very people who dispossessed you - but I digress

[Son of Thatcher]

Sorry if I start to sound hostile in any of these responses BTW, I have absolutely nothing personal against you or anyone else!

Please. If hostility were a barrier to me voicing an opinon, I'd have dropped out of UTS long ago Besides, none of what you've said is anywhere near hostile.

I say "mere date" because it is a relatively unobtrusive change compared to the complete overhaul required to tackle other Indigenous Australian issues. The fact that people aren't even willing to budge on this small and symbolic change suggest (to me, at least) that the "more important issues" aren't even in our field of vision yet.

But like I said, it's actually not an unobtrusive change. The resistance to change which you so deride indicate that people do care about the date and the history it celebrates; they are decidely in favour of maintaining the status quo. Richard Nixon spoke of the 'great silent majority' and I think that such a phrase holds true in Australia, perhaps even more so. Altering the date will do nothing but satisfy a noisy minority which, if it were at least a change of substance, would be more acceptable. But the change you suggest is as practically empty and vacuous as any change could be - maximum division for mimimum reward, little more than a date change.

There is a reason that people won't budge on these so-called 'important issues' and it goes back to the heart of my original argument; trying to introudce change without having anything to show first.

I don't see how it is inappropriate for a successor to apologise on behalf of past administrations and try to remedy past wrongs, especially when the Stolen Generations was by no means something that happened "once upon a time".

Well that's your view and you're entitled to it. I on the other hand, see it as an attempt to inculpate orindary and decent people into a some sort of great genocide for which they had no part in. Why? To try and engender an intrinsic sort of cultural guilt to grease the wheels for change. Utterly unacceptable.

Japan was still apologising for WWII atrocities in 2015. Howard's avoidance of a formal apology had a lot to do with trying to avoid legal (read, financial) baggage related to those affected by the policy, and as such is directly emblematic of an unwillingness to confront the problem. A speech is sometimes not just a speech.

Perhaps. But I'd argue they aren't exactly a pertinent example since many who'd subscribe to your side of the argument have deemed these 'apologies' insufficient. It's possible to dispute this, but to my knowledge, Japan has never really issued a formal apology accepting responsibility for the conduct of the war. On the contrary, they've done many times exactly what John Howard did; express their heartfelt regret for what happened but also recognising the need to move forward.[/i] That should be sufficient.

Also, if we as a population "have absolutely no connection with the initial colonisation", then why are we celebrating Australia Day on 26th January?

Forgive me if I wasn't clear. I wasn't trying to imply that the contemporary nation of Australia has no connection with the past. It manifestly does, specifically for the reasons mentioned previously. Rather, I was trying to show how we as a population of individual citizens have no connection with past atrocities. The sins of the father are not, nor can they ever be, the sins of the son.

Why not celebrate when those values actually manifested in practice? There are many significant dates that shaped Australia as it is now: when the Constitution received royal assent (9th July), Australia Act (4th Dec or 3rd March), opening of Commonwealth Parliament (9th May), so many milestones that actually correlate with the values we are claiming to celebrate.

All formative dates, to be sure. But nothing that could ever compare to the founding of the first colony, the herald of this great country's growth into an economic and cultural power with all the rights, liberties and freedoms that accompany such development.

The Australian nation that we love and celebrate is not simply the British colony founded upon the arrival of the First Fleet - it's gone through and represents so much more than the backwards values of 1788, and I don't believe the date of our current national day does our nation justice.

Have we evolved since then? Of course. But to dismiss the significance of our founding would be a mistake. There are so many principles ingrained in the British system of government that were transplanted to Australia with the First Fleet. The Rule of Law. Due Process. Freedom from government. All laudible values that began with colonisation.

I agree that we should not dwell excessively on the past. But recognition doesn't just mean to acknowledge "Oh, yeah, that happened." We have a duty to go beyond that, to try and correct the injustices, especially when the effects are so widespread and perceivable even today. The least of those actions is to stop celebrating our nation on a date with such divisive connotations.

That's exactly what it means. Keating, like you, tried to tie in recognition with something greater, which would have cemented, not resolved, irrevocable division. We should correct injustices, of course. But as I've said time and time again, a date change isn't going to do anything but anger and dislocate a wide portion of contemporary Australians who have a strong affinity for the day. This is just a rehash of our argument over symbolism, but I digress.

The same way that you associate the arrival of the British with cherished Australian values such as freedom and constitutionalism, Indigenous Australians (understandably) associate that same event with dispossession, oppression, humiliation and suffering. The date of the First Fleet's arrival simply isn't suitable to celebrate our national day on.

It's regrettable that there are those of my fellow Australians who feel this way. But I can go on like a broken record about this, changing the date is not the answer. Rather, trying to resolve the practical, day-to-day issues that confront Indigenous Australians would be far more effective in addressing their hurt.

I guess this is really a conflict of values here. The way I see it, the conditions of native titles can be construed to be less obtrusive for lease-owners and somewhat acceptable for Indigenous Australians. Yet instead of attempting to mediate, the policy outright extinguished native title claims in areas of commercial interest with no room for protest, effectively saying to Indigenous Australians: "If there's big bucks involved, we don't give a shit about you." If that's not divisive then I don't know what is.

I don't know how I could disagree more. The scope of Native Title in the wake of the Wik Decision was irrevocably large and was such a significant break with past reasoning, it created fundamental uncertainty among pastrolists, business and ordinary citizens. It was a matter of ensuring certainty and the economic and cultural security of this country that the High Court in a bout of judicial activism, decided to so conveniently ignore.

Also, whilst it is important due to the structure of our political system, public support does not in and of itself justify the morality of an issue, especially when it's only a minority's rights being compromised.

This is true. But again, it illustrates my point. You and your side want change, yes? How can you ever hope to succeed when you hold as a matter of course that you are correct and will not try to bring mainstream Australia with you? You could have the most moral argument on Earth, but if you can't get people to support you then you're going to achieve nothing. This is exactly what happened in the United States; they had a damn Civil War over it! Rather than trying to let slavery die a slow death, they tried to impose that change on the South which prolonged African-American suffering for another century. Was it a matter of morality? Sure was! But did it matter? Most certainly not.

I would argue that Australia later turned its vote anyway and seemed to have no qualms with other 'heavy-handed' instruments of international law including UDHR - but it's pretty obvious by now that we disagree fundamentally on the value of symbolism and no amount of debate is going to change that.

That's a difference in government policy across generations. The UDHR was signed in the 40s under Labor when people were more hopeful of cementing an international peace and prosperity (and perhaps unaware of how little such a body would achieve). Today, people hold no such misperceptions.

Yes, the institution had significant problems in its workings, but simply abolishing the ATSIC and neglecting to set up a functional, long-term replacement has ruled out the Indigenous self-determination that is fundamental to resolving the problems.

Quite the opposite. Apart from the ideological principle that government shouldn't interfere with race, a government behemoth to 'manage' them is the last thing Indigenous people need. They need people to stop with the good intentions, stop with the guilt and just stop interfering with their lives and communities. Simply creating a new body free from all the issues I described is not as easy as you imply; separating government and corruption is like walking on water.

But the NTNERA exemplifies hostility to an incredible degree - it's considered to be a condescending and culturally insensitive policy by many if not most Indigenous Australians.

Perhaps. But if the Intervention is a 'culturally condescending' policy, then what hope for change is there besides what I described, getting the government out of their lives?[/i]You think grants and handouts are any less condescending?

You're also right by the way, it has been ineffective but that's besides the point. It was the type of bold and deceisive action that at least tried to change things.

Not to mention that NTNERA is also generally considered to be incompatible with international human rights laws and completely ignores the social, cultural and at times property rights of Indigenous Australians, and had to suspend parts of the RDA to maintain its legality.

I think we've established what I think about the UN and government interference.

Perhaps the Howard government had the best of intentions when enacting it - that's what I'd like to think. However, if the "substantive change" comes at the cost of bulldozing human rights, then I'm not sure it's the steps we want, and to be fair the Howard government's initiatives widened the ideological rifts between Indigenous and non-Indigenous Australia if anything.
[/spoiler]

Intentions are irrelevant; results are all that matter. However you slice it, good or bad, at least they tried something.

Yes, I'm aware the High Court didn't touch on the issue of legal settlement - however the mere fact that terra nullius was overturned is enough.

It's actually not though. They're two completely separate things.

International law at the time recognised only the three forms of acquiring territory, as you have listed, and the British acquisition of Australia fits none of the criteria without the justification of a legal fiction.

The High Court didn't make a ruling on this, but I'd say that it's patently untrue. The implications of overturning terra nullius would seem to suggest conquest rather than effective occupation. Something that was legal and therefore NOT stolen.

The fact that the High Court upheld Imperial sovereignty is inevitable: not only because of the precedent you cited, but also because de facto control for a long enough period of time becomes indistinguishable with sovereignty, especially when coupled with colonisation and overrunning of the original inhabitants.

Speculation.

Besides, expecting a court of English common law, which has evolved to protect Imperial interests, to deliver an unbiased authority on the issue is... unrealistic, to say the least.

Such a vote of confidence in our legal system! But in all seriousness, there have been many a court that have upheld rulings against the interests of the ruling class and the established order. Perhaps not in Australia but certainly in the USA, Brown v Board of Education, for instance.

Native title is a leeway, a compromise between the growing international interest in human rights and the interests of those with de facto control over the land without losing too much face or giving up too much.

If Native Title is nothing but a 'compromise', I shudder to think what a full realisation of your beliefs would mean.

Really, doesn't the fact that state governments are dishing out millions of dollars of compensation for native title claims say something about whether the land was stolen or not?

All that says is that governments are into the blame game, wasting money and being seen to fix things when they're really doing nothing.

I think you're over-simplifying the process. It's one thing to have an item stolen from you, catch the thief, then demand its return. It's another to be dispossessed of your ancestral home, have it demolished/reconstructed/renovated beyond recognition, and only then be able to demand for its return.

Perhaps. But that's certainly the implication of the phrase 'stolen land', it's definitely a clever piece of exaggerated rhetoric.

Since it's no longer what you had stolen from you, damages seems a much more reasonable method of compensation - which is exactly what is happening in many native title claim cases around the country.

In Mabo, the High Court held that damages were not payable at common law. I certainly hope this trend you describe is overturned by the High Court once more because it's certainly a worrying direction. Besides, do you really think giving these communities more money is what's going to solve their problems? Successive governments have thrown money at this issue for years with little success.

The process is complicated by the fact that you have to seek justice by going to a court established and run by those very people who dispossessed you - but I digress

How else should it be resolved? Cession? War? We have an impartial and unprejudiced system so that anyone can establish a case. That's about as good a description as I can muster.

[elysepopplewell]

Those hardliners who claim it's emblematic of 'Invasion Day' are difficult to take seriously IMO. Often, these people are happy to embrace all the wonders of Western society, but will simultaneously use that same platform to deride the very society which afforded them such wealth and opportunity. If they really believed this is stolen land, then they should get on a plane and be true to their word: leave.

Really impressed by your discussion, Son of Thatcher! You've made solid points.

But, I'm happy to embrace the wonders of Western society, I'm consistently checking my own privilege as a beneficiary of this society, but I also recognise Australia as stolen land. If we all agreed the land was stolen, seeing as it was not Terra Nullius and therefore taken without permission (aka, stolen), and we all left the country and left the few Indigenous Australians we have to have the country for themselves right now - no "good" is achieved. The problems of entering a country, changing everything, and then leaving the country as a ravished land with new diseases and species and the remnants of a capitalist democracy has been seen before, and there's no benefit to anyone involved if I "be true" to my word of recognising the land as stolen, by leaving. Aside from perhaps being morally consistent in your view, no good is achieved. But, growing to live harmoniously in Australia by appropriately recognising the trauma, and also the success, of our past, has the potential to heal relationships within the society of wonders that we so embrace.

Recognising this land as stolen does not mean I have to leave the country to be morally consistent. It seems like such a gaping string: recognises stolen land = must leave country. Perhaps I've misinterpreted what you've said, in which case please let me know, of course.

[vox nihili]

Those hardliners who claim it's emblematic of 'Invasion Day' are difficult to take seriously IMO. Often, these people are happy to embrace all the wonders of Western society, but will simultaneously use that same platform to deride the very society which afforded them such wealth and opportunity. If they really believed this is stolen land, then they should get on a plane and be true to their word: leave.

I applaud everyone for having such a polite discussion about a topic that is so sensitive.


The point you made that I have quoted, and that Elyse just quoted too, really demonstrates an enormous lack of thought, or even knowledge, about this issue. The idea that indigenous people have been afforded wealth and opportunity by western culture is farcical.

The first point I would make is that indigenous people were not given the choice to take advantage of those "opportunities", but rather were forced by their colonial overbears to become "civilised". This involved the forcibly removal of indigenous children from their families and their placement in the care of white families to teach them white values (hence the later apology you say you disagree with).

Moreover, these so-called opportunities that we gave them included the "opportunity" to have 90% of their population killed. In Tasmania it included their total annihilation. It included the opportunity to be exposed to systematically discriminated against, such that they live a full decade years less than their white counterparts. It included the opportunity to be exposed to diseases this continent had never seen. It included the opportunity to be massacred without impunity. It included the opportunity to be locked behind bars in the NT, and for much of our history, to have been literally treated like animals. 



Indigenous people have lived on this continent from anywhere between 40,000 to 100,000 years. To suggest that the last 200, where their population went from more than one million, to less than 100000 and their ancient culture was all but extinguished in many parts of this country is wilfully ignorant at best and plain racist at worst. 

[Son of Thatcher]

Really impressed by your discussion, Son of Thatcher! You've made solid points.

Thank you! I am trying hard to provide an alternative view that is perhaps seldom heard. I know that for the HSC, I had to cover Keating's Redfern Speech and the lack of debate over some of the more fundamental propositions he advanced was quite saddening.

But, I'm happy to embrace the wonders of Western society, I'm consistently checking my own privilege as a beneficiary of this society, but I also recognise Australia as stolen land.

I'm not saying that being critical of Western society's flaws is a bad thing. Indeed, free speech (a distinctively Western invention) was pioneered to do exactly that. However, it is one thing to be critical of something and quite another to promote an idea which undermines the very sovereignty of this country, using the very freedoms it bestows to do so, all of which wouldn't exist were this nation not conceived as a colony.

If we all agreed the land was stolen, seeing as it was not Terra Nullius and therefore taken without permission (aka, stolen), and we all left the country and left the few Indigenous Australians we have to have the country for themselves right now - no "good" is achieved. The problems of entering a country, changing everything, and then leaving the country as a ravished land with new diseases and species and the remnants of a capitalist democracy has been seen before, and there's no benefit to anyone involved if I "be true" to my word of recognising the land as stolen, by leaving.

This is very true, eerily so in fact. However, that doesn't change the position of moral hypocrisy. Of course, if you're a consequentionalist where the ends justify the means, then it matters not whether or not this was stolen land, just that something good is achieved at the end of the tunnel. That is not my position however.

Recognising this land as stolen does not mean I have to leave the country to be morally consistent. It seems like such a gaping string: recognises stolen land = must leave country. Perhaps I've misinterpreted what you've said, in which case please let me know, of course.

No, you've understood me correctly but I just fundamentally disagree. More to the point, the legal position on this is that Australia isn't[/b] stolen land.

The point you made that I have quoted, and that Elyse just quoted too, really demonstrates an enormous lack of thought, or even knowledge, about this issue. The idea that indigenous people have been afforded wealth and opportunity by western culture is farcical.

*Sigh*. This right here encapsulates everything wrong with your side of the argument. I don't know if you've intended it, but your comment comes across as incredibly elitist. Good luck convincing people about the righteousness of your arguments!

The first point I would make is that indigenous people were not given the choice to take advantage of those "opportunities", but rather were forced by their colonial overbears to become "civilised". This involved the forcibly removal of indigenous children from their families and their placement in the care of white families to teach them white values (hence the later apology you say you disagree with).

True. Forcible assimilation was a mistake, everyone should have a choice. But the question to answer is, do they have access to choose those opportunities now? There's no longer that institutional barrier excluding them from the wider community. There are no laws specifically discriminating against them, no restrictions on their freedom of movement.

Don't get me wrong, there's definitely room for reform. As a libertarian, I believe the #1 priority should be criminal justice reform, specifically in the Northern Territory, to reduce conviction for victimless or non-violent crimes which unfairly target the Aboriginal community.

Moreover, these so-called opportunities that we gave them included the "opportunity" to have 90% of their population killed. In Tasmania it included their total annihilation. It included the opportunity to be exposed to systematically discriminated against, such that they live a full decade years less than their white counterparts. It included the opportunity to be exposed to diseases this continent had never seen. It included the opportunity to be massacred without impunity. It included the opportunity to be locked behind bars in the NT, and for much of our history, to have been literally treated like animals.

What do you want me to say? Of course, these were bad things and we must accept they happened. But the change proposed isn't going to do anything, that's the heart of it.

Indigenous people have lived on this continent from anywhere between 40,000 to 100,000 years. To suggest that the last 200, where their population went from more than one million, to less than 100000 and their ancient culture was all but extinguished in many parts of this country is wilfully ignorant at best and plain racist at worst. 

I resent that implication, although I shouldn't be surprised; I was just waiting for someone who call me a racist. Again, it's yet more evidence of why your message isn't resonating with ordinary people across this country. Now, I'm not quite sure what you're saying here but I assume it's in relation to the Windschuttle point? I never said I endorsed his beliefs, in fact I've done the opposite. However, some of the points regarding the legitimacy of some of the more extraordinary claims are valid. Raising important questions about what constitutes evidence is not something that I think should be shut down, simply because people are offended. If you can't even question the history, if you can't even bring counterveiling facts to the argument, then what's the point of historical debate?

Having said that, I think there's no need for me to continue this conversation; I've made my point and I'm not interested in being called a racist, simply for putting forth legitimate opinions.

[vox nihili]

True. Forcible assimilation was a mistake, everyone should have a choice. But the question to answer is, do they have access to choose those opportunities now? There's no longer that institutional barrier excluding them from the wider community. There are no laws specifically discriminating against them, no restrictions on their freedom of movement.

I think you miss the point in some respects. The society that we have constructed here and the society that you have professed an admiration for (which is totally fair, not a shot at you) is not one that is necessarily compatible with the cultural practices of Indigenous people. To say that they're not discriminated against under the law is true in the sense that there aren't laws written to discriminate against the Indigenous, but in my view is too simplistic. White settlers in Australia constructed a society built on Western values and a Western understanding of what society should look like. In the process we forced Indigenous Australians to adopt a Western way of life. The law of our land naturally follows a Western model, which is fine for westerners, but may not be for Indigenous Australians who have a different culture to ours. Their ideas of what constitutes a good life and how one should live their life are not the same as yours. The reason I suggested that there was some ignorance to your point is because you made the blind assumption that the Western way is the way that everyone should do it. I stand by that point. This cultural barrier is exactly why someone like Dr Yunupingu can die a largely preventable death aged 46 even despite having material wealth most of us would dream of. The services provided in our community are services tailored to a Western society.

Don't get me wrong, there's definitely room for reform. As a libertarian, I believe the #1 priority should be criminal justice reform, specifically in the Northern Territory, to reduce conviction for victimless or non-violent crimes which unfairly target the Aboriginal community.

Good, I agree.

What do you want me to say? Of course, these were bad things and we must accept they happened. But the change proposed isn't going to do anything, that's the heart of it.

As I mentioned earlier, I'm not convinced either way about whether or not we should change the date. That doesn't mean that we can't acknowledge what happened in the past, however.

I resent that implication, although I shouldn't be surprised; I was just waiting for someone who call me a racist. Again, it's yet more evidence of why your message isn't resonating with ordinary people across this country. Now, I'm not quite sure what you're saying here but I assume it's in relation to the Windschuttle point? I never said I endorsed his beliefs, in fact I've done the opposite. However, some of the points regarding the legitimacy of some of the more extraordinary claims are valid. Raising important questions about what constitutes evidence is not something that I think should be shut down, simply because people are offended. If you can't even question the history, if you can't even bring counterveiling facts to the argument, then what's the point of historical debate?

I actually agree with your implied criticism of the Left and its sometimes overzealous use of insults to nullify other people's views. It annoys me to a similar extent as I'm sure it does you. Moreover, I also agree that there is too often a reluctance to engage with people of dissenting views, such as yours (and sometimes mine too).

However, the statements you made, if done so with full knowledge of their impact, were racist. Suggesting a people who have already been subject to some of the worst treatment by a government anywhere in the world should up and leave the country because they believe it was stolen from them is, in my view, either an ignorant statement or a racist one. In my view, it far too closely resembles the idea that those who don't think this country is perfect can either "love it or leave it".

You mentioned that you're a Libertarian, however, a lot of the points you made are extremely inconsistent with classical liberal thought. For instance, the one I just mentioned—that those who think Australia was stolen should leave the country. I'm also perplexed by how restrained your criticism has been about government interventions that have actually harmed the indigenous. For instance, the intervention itself or the stolen generations. Surely these represent the worst excesses of government and should be perfect fodder for a Libertarian such as yourself to rail against government overreach.

Much of what has happened to Indigenous Australians represents some of the worst acts of government. Had they been allowed to pursue their own lives free from influence by Western society, one would imagine that they would probably enjoy a better quality of life and not suffer the terrible consequences of our work that they do today. Their treatment is a fantastic example of where government gets it wrong and it saddens me that a Libertarian such as yourself would focus so much on historical denialism rather than accept the central tenet of classical liberalism itself: government can be harmful.

[kani]

But like I said, it's actually not an unobtrusive change. The resistance to change which you so deride indicate that people do care about the date and the history it celebrates; they are decidedly in favour of maintaining the status quo. Richard Nixon spoke of the 'great silent majority' and I think that such a phrase holds true in Australia, perhaps even more so. Altering the date will do nothing but satisfy a noisy minority which, if it were at least a change of substance, would be more acceptable. But the change you suggest is as practically empty and vacuous as any change could be - maximum division for minimum reward, little more than a date change.
There is a reason that people won't budge on these so-called 'important issues' and it goes back to the heart of my original argument; trying to introduce change without having anything to show first.

It's regrettable that there are those of my fellow Australians who feel this way. But I can go on like a broken record about this, changing the date is not the answer. Rather, trying to resolve the practical, day-to-day issues that confront Indigenous Australians would be far more effective in addressing their hurt.

The way I see it, you can't move a mountain without moving some rocks, and Australia Day is the smallest of those rocks. If people even can't cope with celebrating the exact same celebrations on just another date, how can they support "substantive change" when it comes along and the policies actually require copious amounts of resources and money and job placements, from their pockets and potentially at a substantive disadvantage to them, to help Indigenous Australians? Shouldn't we try to change the public awareness first by a symbolic move with little perceivable detriment to non-Indigenous Australians, then move onto the more gritty stuff?
But really, I think we both know this argument is turning into a pointless back-and-forth lol. Your position does have some merit, and whilst I'll never completely agree with you I can't disprove you either, and vice versa.

Perhaps. But I'd argue they aren't exactly a pertinent example since many who'd subscribe to your side of the argument have deemed these 'apologies' insufficient. It's possible to dispute this, but to my knowledge, Japan has never really issued a formal apology accepting responsibility for the conduct of the war. On the contrary, they've done many times exactly what John Howard did; express their heartfelt regret for what happened but also recognising the need to move forward.[/i] That should be sufficient.

I used Japan to illustrate that current governments still retain links with past deeds, unless it's a complete and absolute regime change - and even then some leaders take it upon themselves to correct past misdeeds. It's not the same as a father-son relationship; governments are political and ideological institutions, and I see no problem with a successor having a duty to right past wrongs. Japan has apologised on many occasions, but is still reluctant to accept full responsibility for some of the atrocities, which is why it still has such strained relationships with China and South Korea, which can be paralleled with our situation here in Australia. "Moving forward" can't just be a unilateral affair when so many Indigenous Australians are still suffering from entrenched oppression and injustice.

All formative dates, to be sure. But nothing that could ever compare to the founding of the first colony, the herald of this great country's growth into an economic and cultural power with all the rights, liberties and freedoms that accompany such development.
Have we evolved since then? Of course. But to dismiss the significance of our founding would be a mistake. There are so many principles ingrained in the British system of government that were transplanted to Australia with the First Fleet. The Rule of Law. Due Process. Freedom from government. All laudible values that began with colonisation.

This is where our fundamental differences are. You see colonisation as the beginning of all these admirable values and hence an occasion worth celebrating. I see colonisation as representing few if any of these values in and of itself, and hence not worth celebrating on its own merit.

I don't know how I could disagree more. The scope of Native Title in the wake of the Wik Decision was irrevocably large and was such a significant break with past reasoning, it created fundamental uncertainty among pastrolists, business and ordinary citizens. It was a matter of ensuring certainty and the economic and cultural security of this country that the High Court in a bout of judicial activism, decided to so conveniently ignore.

All that says is that governments are into the blame game, wasting money and being seen to fix things when they're really doing nothing.

How else should it be resolved? Cession? War? We have an impartial and unprejudiced system so that anyone can establish a case. That's about as good a description as I can muster.

I've already outlined what I believe to be the most appropriate resolution - compensation for native title claims. I find the current trends somewhat reassuring for its moralities. You believe it to be "worrying" and emblematic of inappropriate "judicial activism". I guess we'll just have to agree to disagree 

This is true. But again, it illustrates my point. You and your side want change, yes? How can you ever hope to succeed when you hold as a matter of course that you are correct and will not try to bring mainstream Australia with you? You could have the most moral argument on Earth, but if you can't get people to support you then you're going to achieve nothing. This is exactly what happened in the United States; they had a damn Civil War over it! Rather than trying to let slavery die a slow death, they tried to impose that change on the South which prolonged African-American suffering for another century. Was it a matter of morality? Sure was! But did it matter? Most certainly not.

I never said I don't care about "mainstream Australia"; in fact, isn't that why we're having this debate? Trying to convert other people?
The point I was making is that public support does not in and of itself give moral justification. Public support in this country led to, at the more extreme end, White Australia and McCarthyism and Indigenous genocide. I doubt you can find anyone who'll say that these are all good things to have happened, as you were trying to imply with Howard's ten-point plan. Morals and public perceptions change by time. Public support is necessary to change things in our democracy, but no one can claim that the public is always right.

Quite the opposite. Apart from the ideological principle that government shouldn't interfere with race, a government behemoth to 'manage' them is the last thing Indigenous people need. They need people to stop with the good intentions, stop with the guilt and just stop interfering with their lives and communities.

But this hasn't worked. NTNERA was a policy that bulldozed all forms of self-determination and cultural sensitivity and it hasn't worked. In many areas it's worked to the active detriment of those it's trying to help. Sure the Howard administration "tried to do something" - with whatever intentions -  but with such a heavy hand that it was akin to doing nothing or even acting against Indigenous Australians.

The High Court didn't make a ruling on this, but I'd say that it's patently untrue. The implications of overturning terra nullius would seem to suggest conquest rather than effective occupation. Something that was legal and therefore NOT stolen.
Such a vote of confidence in our legal system! But in all seriousness, there have been many a court that have upheld rulings against the interests of the ruling class and the established order. Perhaps not in Australia but certainly in the USA, Brown v Board of Education, for instance.

Trying to legitimatise a piece of information with an institution that by its own rules cannot rule against it is fallacy. The evidence is not going to be "unprejudiced". The British justification for sovereignty was settlement under the principle of terra nullius. The ruling of that as legal fiction essentially undermines the lawfulness of the acquisition. Changing the story just because the fiction doesn't fit anymore challenges all notions of justice and integrity; is there any polity that doesn't have legal sovereignty under this loose criteria?
Plus, common law is an inherently rigid system that all too often overvalues the past. Brown relied on the Constitution to justify its ruling. Our Constitution contained openly racist clauses until 1967. I think Indigenous Australians are all too clear on what our past lawmakers thought of them. They aren't oppressed by just the "the ruling class" or "established order"; they are targeted by the entire system.

Besides, do you really think giving these communities more money is what's going to solve their problems? Successive governments have thrown money at this issue for years with little success.

No. But I don't believe telling them to "get over it" is going to solve the issue and divided communities either.

[Joseph41]

A relevant article.

YARRA Council could rename Australia Day to “January 26” and dump its citizenship ceremony out of respect to Aboriginal Australians.

http://www.heraldsun.com.au/leader/north/australia-day-yarra-council-considers-move-to-rename-day-move-citizenship-ceremony/news-story/08f44ff4f86bcfc70141a2670f7ddcff