Beijing, Taiwan and Us

Lingering Questions

Sir: Frank Mount’s article “How Xi Misreads the Taiwan Battlefield” (November 2022) makes some valid points, but also appears to miss key aspects of the issue. Having just read Senator Molan’s recent book Danger on Our Doorstep, I was surprised to see no mention of cyberwarfare in Mount’s article. If Senator Molan is correct, a massive cyber-attack from the PRC would cripple the West in the short term, long enough for the PLA to take Taiwan with little or no resistance from the Taiwanese or the US and its allies.

Molan’s book hypothesises that underwater nuclear detonations would neutralise Allied submarine capability. Mount does not mention this point. He uses the example of the bloody nose the PLA received during its excursion to Vietnam in 1979. That is quite true but given that the Vietnamese were working from more than forty years of combat experience, the outcome was not surprising. It’s an open question whether today’s PLA are cut from the same cloth as their predecessors, and this is a question that might well be answered to the grief of the allied nations during a future war. Mount’s point about Xi Jinping Thought is well made and is redolent of every dictatorship in history where the strong man’s cunning was all that held the edifice together. What if Xi is toppled? Would that make the PRC an honest broker overnight? Again, another question best not answered on the battlefield.

Overall, I read Mount’s article with a sense of concern that he and others who should know better are too complacent about the limitations of the PRC and the PLA, and too trusting in alliances forged in the past. If the US gets a bloody nose in the Western Pacific, the isolationists in Washington will forget they ever knew us.

Jason Gardner

Aboriginal Violence

Sir: In his insightful article “Australia’s Aborigines and the Question of Genocide” (January-February 2022), William Rubinstein states that “Aboriginal tribes exterminated each other, the winners literally wiping out every member, or nearly every member of the defeated tribe.” One example of this behaviour not mentioned in his article is described in the book Blind Moses written by Peter Latz, who grew up in Hermannsburg during the 1940s and 1950s. The book describes the life of Moses Tjalkabota Uraiakurais, who converted to Christianity and was renowned as a Christian evangelist from about 1900 until his death in 1920.

The book describes two massacres of Aboriginal people by Aboriginal people that took almost 200 lives:

Ltjabakuka, the ceremonial chief for the area, was a very important person … The catastrophe that befell him and his group unfolded when a Central Aranda man called Kalejika … accused Ltjabakuka and his elders of a sacrilegious act—giving men’s blood to initiated boys to drink. This was deemed to be so serious a violation that could only be redeemed by his death … a group of people … formed an avenging party, about eighty strong. They knew they had to kill Ltjabakuka’s entire group, also about eighty strong, so as to leave no witness … They … indiscriminately massacred with spears, boomerangs and clubs the men, women and children. … the party then broke the limbs of the infants, leaving them to die “natural deaths” … As the party retreated, they encountered two hunters who were late returning to the camp. They managed to kill one, but Nameia, although wounded by a spear-thrust in one leg, managed to escape … one of Ltjabakuka’s wives, although she had been clubbed, also survived by shamming death, protecting her infant son under her body.

The two adult survivors were able to identify all of the main attackers … and so after Nameia recovered from his wound, he led an avenging party into the enemy’s country … his small band of warriors were eventually able to kill all of the main instigators. It took some three years to carry out their plan.

The book, which describes other black-on-black deaths, is well worth reading.

Bernie Masters

Mabo and the Judges

Sir: Some matters in John Singer’s article “The Judicial Over-reach of the Mabo Case” (October 2022) perplexed me.

The judgments of the Full Bench of the High Court in Mabo (No. 1) v Queensland and Mabo (No. 2) v Queensland have been available in volumes of the Commonwealth Law Reports since soon after each was given: in (1988) 186 CLR 186 and (1992) 175 CLR 1 respectively (as well as in other series of law reports). The part of the judgment of Moynihan J in the Supreme Court of Queensland that is reported in (1992) 1 Queensland Reports 78, gives a good idea of how he approached his task and what types of evidence he deemed relevant and irrelevant. 

The procedural history and long summaries of the parties’ arguments to the courts are set out in the CLR reports. Mr Singer notes that the Hawke government declined to present a case in Mabo (No. 2). One reason is that the plaintiffs (not “complainants”) no longer had a claim against the Commonwealth, which was no longer a party to the case. The reader might infer that somehow the plaintiffs won in Mabo (No. 2) for want of counter arguments that the Commonwealth should have made. Not so; Queensland fought the Mabo claimants all the way; the state was represented by the Solicitor-General, junior counsel and the Crown Solicitor in Mabo (No. 1) and Mabo (No. 2); summaries of their arguments are in the CLR reports. There was no need for the Commonwealth government to appear simply to announce that it agreed, or disagreed, with Queensland’s arguments.

In Milirrpum v Nabalco Pty Ltd in 1971, Blackburn J in the Northern Territory Supreme Court dismissed a claim that there had been an Aboriginal native title to land at Gove that had survived European settlement. Any other first instance judge, federal, state or territory, would have been likely to follow this decision, though not bound to do so, and any decision not to follow it would inevitably have been appealed. The issues of principle raised in Mabo (No. 2) were bound to reach the High Court sooner or later.

The Land Court of Queensland had a statutory jurisdiction in specific land matters. Deciding whether there existed an Aboriginal (or Torres Strait Islander) native title, independent in origin from the English common law applying in Australia and the legislation of the Commonwealth, states and territories was outside its scope.

Singer says the High Court judges he names “were not divorced from their experiences” and describes some of them, from which one is apparently to deduce that the judges were biased by sympathy to the Aboriginal cause or antipathy to Queensland. His remarks about “the judges” so affected seem intended to refer to all ten judges named. But Murphy J, the only one who had been “prominent in politics”, died before Mabo (No. 1) came to hearing before the full High Court. Of the seven judges who sat in Mabo (No. 2), one, Dawson J, dissented from the majority on the main points, finding that the plaintiffs’ claims should be dismissed. The only judges who had been “judges in Northern Territory (Aboriginal) land rights matters” were Toohey J, former NT Aboriginal Land Rights Commissioner, and Brennan and Deane JJ, who had sat in Federal and High Court cases involving the Aboriginal Land Rights (Northern Territory) Act. I cannot tell if any of the judges had appeared as barrister in any such cases.

I would be fascinated to know all about the judge who “had felt cheated in relation to land dealings with government”, and how that affected the result in the Mabo cases.

I understand Singer’s argument to be that (1) “usufruct” is the mere taking of the fruits of the land and the sea, as opposed to cultivating it; (2) usufruct is a right over land but not a right to the ownership of land; (3) the Aborigines before 1788 had a merely usufructuary lifestyle; hence they did not own any of the land they inhabited; (4) hence when the Europeans settled on the land by fencing it off, planting crops, cutting trees and running livestock, they did not take from the Aborigines anything that had been theirs. They merely asserted a title to land in which no title had ever existed before. Terra nullius seems a useful shorthand for such land. 

Michael Rollinson