In George Orwell’s now-classic dystopian novel Nineteen Eighty-Four, the world is divided into three superstates. One of them, Oceania, encompasses the continents of North and South America, Southern Africa, Australia, New Zealand and the British Isles. The government of Oceania is comprised of four major ministries who derive their objectives from the ruling ideology of Doublethink. The Ministry of Truth is dedicated to telling lies; the Ministry of Peace provokes war against the other superstates; the Ministry of Plenty rations food and generates poverty, scarcity and debt; and the Ministry of Love tortures and brainwashes its citizens into accepting all this and loving only the ruling tyrant, Big Brother.
It was telling that at Uluru in 2017, when the advocates of the Voice laid down their agenda for Aboriginal self-determination, one of their non-negotiable demands was that Australia should undergo a process of “truth-telling”. This concept has more than a little likeness to the aims of the ministries Orwell described in his book. It was the job of Orwell’s central character at the Ministry of Truth, Winston Smith, to rewrite the history of Oceania to fit whatever happened to be the latest political objective of Big Brother.
I was reminded of Orwell’s scenario at a musical performance last year at a high school in Sydney in which one of my dear offspring had a role. The school was once known for instilling good manners in its students but, at the start of this show, after the now compulsory ordeal of acknowledging Aboriginal country and the wisdom of its elders, the lights went down and a deep-throated female voice turned up the amplifiers and roared in the dark: “and First Nations never ceded their sovereignty”. To me, this sounded like a message from Big Brother. Other concert-goers told me later that this outburst and its authoritarian milieu were nothing new, at either this school or any other in Sydney’s inner suburbs. In Teal territory, it was now the norm.
The claim that Aborigines have always retained their sovereignty over the continent is a statement that implicitly asserts that British colonisation in 1788, and ever since, has been illegal, and that most of us are therefore living on stolen land. The idea actually originated in 1979 when, in Coe v Commonwealth, the indigenous lawyer Paul Coe sought leave to claim before the High Court that the Aborigines were a sovereign nation and that Britain had wrongly asserted its own sovereignty over them.
Coe’s bid was denied at the time, but the idea was revived in 1996 in Henry Reynolds’s book Aboriginal Sovereignty: Three Nations, One Australia? Reynolds wrote this primarily to challenge Australia’s long-standing legal tradition that denied Aborigines had any sovereignty over the landscapes they once traversed. Reynolds argued that the High Court’s Mabo decision in 1992 not only recognised the existence of native title but it must have also entailed the existence of undeclared laws and forms of government that were needed to establish the reality of land ownership.
Reynolds and his activist colleagues in 1992 managed to persuade Australia’s High Court that Eddie Mabo, once a sedentary farmer on the Torres Strait island of Mer, held “native title” under the common law. However, it was a leap of the imagination to assume that the nomadic hunter-gatherers on the mainland thereby had the status of sovereignty over the land they used. Indeed, it is not hard to show that, legally and politically, Australia’s Aborigines never had any sovereignty to cede.
For a start, “sovereignty” is a term from early modern Europe that bears no relationship to the laws of hunter-gatherer Aborigines in pre-1788 Australia or any other place where the same form of land use still existed. When the continent of Australia was first colonised by the British, international law followed the model derived from the treaty of Westphalia in 1648 which held that European states had exclusive sovereignty over their territory, and that external powers had no right to interfere in their domestic arrangements. This was part of the meaning of the term “civilised”, which emerged in the eighteenth century in the European Enlightenment.
But to gain such status, a state had to be a genuine nation. In 1750, the most authoritative European legal scholar of international law, Christian Wolff, author of The Law of Nations According to the Scientific Method, said that for a society to be a nation it must have civil sovereignty and, as a corollary, only nations can be genuine sovereigns. Wolff argued that “separate families” or clans based on kinship who “wander through uncultivated places” can have rights of land ownership, which sovereigns should respect. But he emphasised that this did not turn these extended families into nations or give them sovereignty over their territory. He wrote:
The name nation … denotes a number of men who have united into a civil society, so that therefore no nation can be conceived of without a civil sovereignty. For groups of men dwelling together in certain limits but without civil sovereignty are not nations, except that through carelessness of speech they may be wrongly so called.
Wolff’s successor, Emmerich de Vattel, writing in his 1758 treatise The Law of Nations, or the Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, made it clear that the European definition of sovereignty was based not on some blanket racial prejudice or sense of superiority over all the indigenous people of the Americas and the Pacific. Rather, it derived from the presence or absence of a civil society or nationhood. Vattel’s work distinguished clearly between the sedentary agricultural societies of the Aztecs and Incas in Mexico and Peru and the nomadic hunting tribes of North America. He argued that the former were genuine nations that had political systems comparable to those of Europe, and who legally occupied their land. Consequently, Vattel said, under the law of nations their overthrow by the Spanish conquistadors was unlawful. This was in contrast to the fate of the nomadic tribes of North America who failed to fulfil the prescriptions of natural law. They did not become nations and their profligate use of land was a legitimate temptation to more productive societies to transplant their own people and methods there. Like Europe in the pre-Westphalian era, their lives were dominated by warfare with rival communities that could last from thirty to one hundred years. Hence, neither Wolff nor Vattel justified the national sovereignty of hunter-gatherers or similar nomads.
In New South Wales, the absence of any native political structure that the first English explorers and settlers could recognise as a nation or state led them to annexe the territory as a colony of settlement. This meant English law came into force, the British Crown became the sovereign of all the land it claimed and, in legal theory, the indigenous people automatically became subjects of the Crown, living under the protection of its laws.
In 1836, in the first legal case that tested the status of Aborigines within the British colony, Vattel’s writings formed the basis of the judgment delivered by Justice William Burton of the Supreme Court of New South Wales in R v Murrell (with the concurrence of Chief Justice Francis Forbes and Justice James Dowling). After the colony’s forty-eight years of experience dealing with the tribes, Burton concluded that the Aborigines did not have anything that amounted to what the British and other nations could regard as government or statehood. He said they:
had not attained at the first settlement to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.
The legal judgment that ultimately confirmed the settled colony principle was given in the UK in 1889 in the case of Cooper v Stuart by Lord Watson of the Privy Council, who said:
There is a very great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract or territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class … In so far as it is reasonably applicable to the circumstances of the Colony, the law of England must prevail.
In our own time, the same principle has been confirmed time and again, and for similar reasons. Australia’s former Chief Justice Harry Gibbs knew that the issue of sovereignty could not be decided simply by the issue of Aboriginal claims to land ownership. As Wolff and Vattel had affirmed, the issue at stake was whether the Aboriginal clans in existence before European colonisation constituted genuine nations. In denying leave to Paul Coe in 1979 to argue for an Aboriginal sovereign nation, Gibbs’s views were formidable:
it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others,” or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
Gibbs went on to find that the issue of Aboriginal rights to land should be allowed to proceed in the High Court. Nonetheless, he insisted this was a different matter from that of sovereignty, declaring: “there is no aboriginal nation, if by that expression is meant a people organised as a separate state or exercising any degree of sovereignty”.
In 1993, in the wake of the High Court’s Mabo decision that found native title existed in Australian territory, Chief Justice Anthony Mason in Coe v Commonwealth (No 2), nonetheless said Mabo was “entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia”. The Mabo decision, he said, was:
equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.
In 2002, in the High Court case of Yorta Yorta Aboriginal Community v Victoria, Chief Justice Murray Gleeson, Justice William Gummow and Justice Kenneth Hayne held that the British Crown’s original assertion of sovereignty “necessarily entailed” that thereafter there could be “no parallel law-making system in the territory over which it asserted sovereignty”. No Aboriginal system of law could subsequently create valid rights, duties or interests.
However, in the coming referendum for the Voice, if the Australian people change the Constitution to give indigenous people special recognition via the completely open terminology presented by the Albanese government, all the above findings could possibly be reinterpreted. The new members of a High Court appointed by the same government could change the game completely.
The first role of the High Court is to interpret the Constitution, and if the people voted to amend the Constitution it would immediately open up the opportunity for judges to examine the constitutional consequences of the change and the intentions of those who voted Yes. In particular, it would sanction adventurism among judges of that inclination. The fact that the amendments were approved by a referendum supported by a significant majority of the Australian people would tell them the national mood had changed in favour of amending laws and policies too. It would tempt judges to accept the more radical propositions of the Aboriginal political class that they remain the true proprietors of the land and that those of us descended from the more recent settlers need to re-negotiate our right to be here.
The continuation of public acceptance of the persistent and ubiquitous acknowledgments of country and other rituals and catchphrases which our education systems now use to indoctrinate young people, coming on top of a win for the Yes case in the proposed referendum, would create a climate that could persuade even the most traditionalist judges that Australia is ripe for sweeping reform.
If the referendum for the Voice does get up, some of the early demands we could expect to arise from the new Aboriginal chamber would not only be to eliminate Australia Day on January 26 but also to imitate New Zealand and give the Commonwealth of Australia a new name to suit its new status. I would nominate George Orwell’s choice, Oceania. We would deserve it.
All legal sources for this column are detailed in Keith Windschuttle’s The Break-up of Australia, available by clicking here