After Mabo

Lionel Murphy Memorial Lecture

1994 December, 8

After Mabo

In 1981 Percy Neal, then the chairman of Yarrabah Aboriginal Council in North Queensland, was sentenced to a prison term of two months with hard labour for expectorating at the white store manager of that particular Aboriginal reserve. At his hearing the magistrate rebuked Mr Neal as follows:

Violence is something in recent times which has crept into Aboriginal communities. I blame your type for this growing hatred of black against white … As a magistrate I visit [many] communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these communities.

On appeal, the Queensland Court of Criminal Appeal increased Neal’s sentence to six months without granting him right of appeal. The High Court subsequently quashed the Queensland court’s extension of the sentence, but was divided as to whether an appeal should have been granted. Chief Justice Gibbs and Justice Wilson declined to interfere with the Queensland court’s decision. Justices Brennan and Murphy dissented.

In his now famous judgment, Justice Lionel Murphy suggested that the magistrate had been influenced in his judgment by his political views and by racism, and that Mr Neal’s reputation as a ‘stirrer’ had obviously contributed to the severity of the sentence:

In its supervision of the criminal justice system of a State, the Court of Criminal Appeal has a duty to see that racism is not allowed to operate within the judicial system.

Many of the great religious and political figures of history have been agitators, and human progress owes much to the eff orts of these and the many who are unknown … Without them, in our incomplete state, there would be no advance toward civilisation. Mr Neal is entitled to be an agitator.

Murphy contended that a person should not be penalised for attempting to change social conditions which he or she found to be unjust. In a foreword to a collection of essays with Justice Murphy as their subject, Michael Kirby reflected in 1987 that:

Given the right person and opportune conditions, a determined reformer can use the institutions of Australian society to effect change for the better. He or she can do so in an entirely constitutional way. The reformer in Australia needs no resort to guns … The institutions for change are there beckoning. They can be found in Parliament, in the bureaucracy, in the Cabinet room, in the courts, in the trade union movement, in the media and in society’s countless groups.

This is an inspiring thought, tempered only by Kirby’s observation that the enemies of reform are ‘mainly inertia, complacency, greed and selfishness’. Inertia, complacency, greed and selfishness are no mean enemies with which to reckon. That the leaders of reform in Australia have struggled, sometimes successfully, with these forces is to their credit. But that the struggle can be hard and terribly protracted is demonstrated by the grinding pace at which Aboriginal land rights reform has limped onto Australia’s national agenda, and by the inordinate amount of blood and sweat that have, over the years, been wrung from the most determined social reformers. Justice Murphy had the power to do more than spit in the face of authority but even he, like Mr Neal, suffered a fate common to agitators and was later dragged through the courts. Gough Whitlam was removed from office, John Koowarta’s hopes of regaining his land were dashed by the spiteful acts of Bjelke-Petersen and Eddie Mabo died, aft er ten years of struggle, on the eve of triumph. Perhaps the institutions for change do not quite beckon!

It was many years before an Australian government of courage and vision came to tackle inertia, complacency, greed and selfishness head on. The opportunities were there in 1972 to use, as Kirby has suggested, ‘the institutions of Australian society to effect change for the better’. A diary of the initiatives taken during the first days of the Whitlam government reads like the chronicle of a social revolution.

Mabo is a consequence of this revolution. The Whitlam government, with Lionel Murphy as attorney-general, took international human-rights standards and applied them to Indigenous peoples in Australia. First, Murphy introduced federal laws outlawing Queensland’s discriminatory laws applying to Aboriginal reserves and their inmates. These discriminatory laws prompted the great resentment and resistance of Mr Neal and countless others who fought against Queensland’s long-standing system of discrimination and denial of human rights.

Furthermore, in the final days of the Whitlam government, the Racial Discrimination Act was made law, implementing Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The internationalist approach taken by Murphy and Whitlam to domestic human rights was the subject of a constitutional challenge in the watershed case of Koowarta v. Bjelke-Petersen.

I had the great privilege of working with John Koowarta in 1991 on the Queensland land rights campaign. A decade earlier, Koowarta had been prevented from purchasing a pastoral lease in Cape York Peninsula by the Bjelke-Petersen government, which then had a policy of preventing Aboriginal groups from buying land on the open market. The judgment of the High Court in the Koowarta case in 1981 established one of the most important principles under our constitution. That is, that the Commonwealth has the power and indeed the obligation to implement international law in Australia, and particularly to guarantee such fundamental human rights as the right to be free from racial discrimination. In 1981, Koowarta was unable to benefit from this judgment, Bjelke-Petersen having made the land in question a national park. Ten years later, with a state Labor government now in office, Koowarta fared no better in the land rights campaign of 1991. He died soon aft er, still dispossessed of his traditional lands.

The Racial Discrimination Act also proved to be critical to the survival of the Mabo litigation in 1988, when the High Court invalidated a Queensland law enacted in 1985 which purported to retrospectively extinguish native title in the Murray Islands and therefore to terminate the Mabo action. Strangely enough, three weeks ago the Goss Labor government passed a law which seeks to pre-empt a question that is central to proceedings currently before the federal court in the Wik litigation. The Queensland law seeks to declare that native title is extinguished on pastoral leases, a declaration which the federal parliament explicitly left for determination by the courts. This action by the Goss government and the processes by which this law was introduced are in substance no different from what Bjelke-Petersen did by sheer jackboot political force in 1985. I observed at the time that the Bjelke-Petersen handbook on unprincipled government had apparently been left lying around the Queensland parliament house after the Nationals were routed in December 1989.

For a party that has led social reform in this country since the 1970s, it appears that the Labor Party’s central challenge is how it can hold power and exercise it in the most responsible and principled way. The Queensland experience, after five years of the Goss government, suggests that there are only two choices for Labor governments: pragmatic and hard-nosed politicking aimed at retaining power, or idealistic and careless prosecution of principle. The poll-driven apparatchik versus the coffee-shop revolutionary. I will later argue that the choice is not one or the other, not left or right. Principled pragmatism or, to put it another way, pragmatic idealism, must surely be the guiding strategy of those from the hungry side of politics.

This might be an appropriate point at which to seek the guidance of history. In his official history of the New South Wales Labor Party, Graham Freudenberg has suggested that:

the Australian Labor Party remains the authentic expression of Australianism. More than any other political party in the world, the Australian Labor Party reflects and represents the character of the nation which produced it.

Freudenberg’s claim is in a Labor Party tradition of seeking historical validity for its right to represent Australians and to shape Australia’s future. It is in the context of this tradition that members of the Labor Party speak of ‘keeping the faith’, and it is in this context I would like to examine Freudenberg’s claim. Does the Australian Labor Party reflect and represent the character of the nation which produced it?

The legal and administrative structures of Australian society are necessarily Anglo-Celtic in origin. But no-one would now seriously contend, as the historian W.K. Hancock once did, that the Australian people are a ‘product of the blending of all the stocks and regional types which exist within the British Isles’. One of the declared objectives of the New South Wales branch at the Interstate Conference of the Australian Labor Party in 1905 was the:

cultivation of an Australian sentiment, based upon the maintenance of racial purity and the development in Australia of an enlightened and self-reliant community.

The inextricable links between the ideals of Australian nationalism and racist policy are here explicit, and Freudenberg asserts that the promotion of racist policy was critical to any hope of electoral success for the  Labor Party. In attempting to explain Labor’s adoption, in 1895, of a policy of national exclusion of ‘alien and inferior races’ he asserts that:

What must be clearly understood, however unpalatable it may be in 1991, is that in the 1890s, radical idealism and racial purity were entirely compatible and usually spoke in the same voice. Liberal and progressive thought everywhere was profoundly influenced by the idea of social evolution, a development, or as we would see it now, a corruption of Darwinian theory. Radical ideas about progress and nationalism reinforced each other. Just as nationalism could too easily degenerate into chauvinism, the idea of evolutionary progress could easily merge into open racism.

The currency of such sentiments was apparent as late as 1978, when the author Marjorie Barnard exclaimed: ‘That the population was not brindled from the outset was the bright side of misfortune.

Gordon Childe, scholar and civil libertarian, was private secretary to the Labor leader John Storey from 1919 to 1921. In How Labor Governs, Childe maintained that the watchword of a ‘White Australia’ had been adopted by the Labor Party for ‘purely economic reasons’ as a means of sustaining Anglo-Celtic Australian employment and living standards (an aim with which I am sure this audience is familiar).

It took some time for the party to emerge from the petty preoccupations of jingoistic nationalism to the broader international perspective that has characterised some of its greater undertakings. And while courageous reformers such as Gough Whitlam and Lionel Murphy often rejected the Australian Labor Party’s narrow jingoistic tradition in favour of an internationalist perspective, the tradition is a hard one to live down. The White Australia policy is an inescapable aspect of Australia’s and the Labor Party’s legacy.

That the internationalism of socialist theory did not overturn the ignorance of racism in the tumultuous beginnings of the Australian Labor Party is certainly true, but I would also argue that Freudenberg exaggerates somewhat the naturalness of the degeneration of evolutionary theory into racist attitudes. To the contrary, I would assert that it is essential to recognise this type of development as conditional on there being vested interests in such views. No necessary link exists between evolutionary theory and racism. The link, I would argue, is between imperialism, colonialism and the national psychological need for an apologetic. Once developed, this apologetic gathered the momentum to permeate every aspect of this nation’s identity, but it remains a rationalisation for greed. Professor Henry Reynolds’ histories, in particular Frontier, tell clearly the history of colonial racism in Australia.

Perhaps, as Freudenberg asserts, the Labor Party exemplifies Australianness, but such a claim is not unproblematic. By this I do not imply that any other Australian political party has been less racist, simply that this is an aspect of Labor Party history which must be confronted rather than explained away in terms of the context of the times. Contextualisation is all very well, but justification of such retrograde attitudes is not.

On 2 December 1972, Whitlam described his task as being not merely to reverse the government policies of two decades but ‘to change Australian attitudes, deeply entrenched over two generations’. Racism, he charged, was the basis for most of the foreign policy of the Menzies era. It was relatively easy to change the policy, but more difficult to change the attitudes of the Australian people.

Time will tell whether this assertion is valid, but it is my view that it is the leadership of Paul Keating in the past three years that has most decisively confronted the inherent racism of the Australian community to which Whitlam referred. I am astounded by the palpable changes in Australian attitudes since the start of the 1990s. Those who never have to deal with racism in all of its institutional and social manifestations from day to day may not so clearly appreciate the change that unequivocal and principled leadership has forced. The High Court’s imprimatur in Mabo established the context for this major change in Australian attitudes toward Aboriginal people particularly and race generally. This has been the prosecution of principled pragmatism at its best.

The battle is not yet won, and sustained leadership at the national level will be needed for some time to come. If there is disappointment, it is in the failure of leadership at the state level. Rather than confronting and educating a conservative electorate, the Queensland Labor leadership has reflected community attitudes. I also regret that change has not swept the conservative side of politics; it appears that the Liberal Party in particular has regressed from its previously principled policies on race, Indigenous rights and social equity. I fear therefore that the gains that have materialised, and those which are still emerging, may be lost. However, I hold steadfastly to the view that for the great bulk of ordinary Australians, Aboriginal-affairs policy is now and will increasingly be a barometer for political decency. In the 1990s, a party’s approach to Aboriginal affairs will be considered reflective of its standing on social justice generally. In other words: ‘If they do us in, they’ll do you in too.’

Gordon Childe described how the Australian Labor Party began as both a social-democratic party and a union party. Those attracted to the party by sentimental bonds included democrats and nationalists; by economic interests, small farmers, settlers, prospectors, mining proprietors and small shopkeepers; by self-interest, the Catholic Church and some business interests, including the liquor trade. Childe attributed what he deemed to be the failure of the party to maintain its idealism to its contamination by forces outside the urban proletariat. ‘The Labor Party,’ he complained, ‘starting with a band of inspired Socialists, degenerated into a vast machine for capturing political power, but did not know how to use that power when attained except for the profit of individuals ... Such is the history of all Labor organizations in Australia, and that not because they are Australian, but because they are Labor.’ These are the words of a disillusioned idealist. Freudenberg has countered that what Childe ‘saw as degeneration was the Labor Party’s capacity for change and renewal’.

Though the Labor Party today professes (admittedly with diminished enthusiasm) its commitment to the international democratic socialist movement, it might be a mistake to separate the true party, perceived in Marxist terms by Childe, from those elements of the community who were attracted to it for various other reasons. The party is arguably far better explained if one accepts the real diversity of its origins.

With all respect to Childe, I would argue that the history of the Labor Party has not necessarily been one of degeneration. It has been, and should continue to be, a necessarily complex and diverse history of dialogue between the pragmatic and the idealistic.

The failure of the colony of New Australia, founded in Paraguay by William Lane in 1893, is portrayed by Freudenberg as symbolising the failure of idealism:

The idealists, writing on a clean new page, defying the imperatives of established society and its institutions, had failed. The pragmatists, working within these flawed institutions and accepting the reality of human nature, remained at home to try their hand.

And yet, as Stuart McIntyre pointed out at the ALP National Conference this year, true believers do need beliefs.

Whatever It Takes, Graham Richardson’s rollicking and unabashed insight into Labor’s accumulation and exercise of power in the last decade, necessarily raised questions about how the Labor Party should preserve principle while pursuing the imperatives of political pragmatism. For all his unapologetic frankness about Machiavellian procedure, Richardson’s cynical concept of mateship belies a commitment to actual reform for the national good. His achievements in the environment portfolio will stand as one of the great ministerial contributions of Labor government in this country. For all his bald larrikinism, I suspect that his commitment to the ‘fair go’ runs deeper than a good Machiavellian would care to admit.

Richardson, however, is inarticulate in defining the social good. So where should we look for some articulation of the ALP’s ideals? We could look to an 1891 address by James McGowen, former secretary and president of the Boilermakers’ Union, in which he professed that:

the whole object of the Labor Party is for democratic legislation in the interests of the people. We believe almost to a man in these lines of the English writer Landor: ‘Every Government should provide for every subject the means of living honestly and at ease’.

The importance of a philosophical basis was recognised by Whitlam, who emphasised the development of a practical program of reform, one which would meet the real needs of Australian people, within the existing Constitution. Whitlam coined the phrase ‘positive equality’ to describe his philosophy, which departed from radical socialism in its pragmatic support for the private sector as the mainstay of a national economy, concentrating on the provision of services rather than the levelling of individual wealth.

Of course, for our true beliefs we also need to look within and to search our national soul. Reconciliation requires recognising the need to reform chauvinistic and apathetic public attitudes as much as institutions and laws. In doing this, what do we appeal to? Th e ‘fair go’ tradition, as Vincent Lingiari did in 1966? It still has charm as a principle and relevance as a national ideology. Do we see the ‘fair go’ tradition at work in the enormous electoral support for the 1967 referendum? Or perhaps in the 1965 battle by the North Australian Workers’ Union for equal wages for Aboriginal stockworkers?

Of Justice Lionel Murphy’s faith in the democratic process and of his dogged pursuit of justice, Michael Kirby has written:

What was it in his make up that sustained his optimism when all of the constitutional, institutional, parliamentary, bureaucratic and social pressures pushed him in the opposite direction: to inertia, to inactivity, to accept the status quo? … Some fellow Celts would doubtless say that one answer was genetic: a kind of turbulent larrikinism that tends to be a feature of many of the descendants from that rain-swept island off the coast of Britain. Others would say experience ... when he gained office he wanted to do good and noble things and to do them quickly because he realised, only too well, the dominance in Australia of the forces of inaction.

The paradigms are beginning to shift. Th e silence is breaking. Mainstream journalists, politicians and academics now dare to examine some of Australia’s most sacred national shibboleths with clear rather than misty eyes.

The process of national reconciliation being undertaken by the Council for Aboriginal Reconciliation must eventually lead to some document of reconciliation which is guaranteed by our Constitution. Such a document must have bipartisan and overwhelming support from the Australian community. I believe that this country will eventually embrace such an instrument as part of our national legal apparatus.

We must review our institutional and constitutional structure so that Indigenous peoples, and indeed all non-Anglo-Celtic people, are included as founding citizens of a new order. This new order must affirm the positive core of our democratic inheritance, whilst setting out an agenda for an Australia in which terra nullius and homo nullius are artefacts of the past and no longer an intrinsic part of our national culture.

We must now seriously consider the need for a bill of human rights for our country. The rights of minorities against the tyranny of the majority, and indeed a constitutional right to equality, must be guaranteed by such a bill. This is critical to maintaining national cohesion in the future. Australia must implement international law over and above notions of states’ rights and regional parochialism. There must be fidelity to international human-rights and environmental-protection standards.

Our inevitable movement towards a republic is the central vehicle for institutional and constitutional renovation. It must be a mature review, which affirms the positive aspects of our achievements and institutions, and which also builds a new un-colonial foundation for a country where all peoples can share a place. Both the environment and Aboriginal affairs must become primarily Commonwealth responsibilities, and a direct relationship must be developed between Aboriginal people and the Commonwealth.

Finally, with all of the other things that we expect to export to Asia in the future, we can export values through our achievements, advice, diplomacy and, most importantly, our example. We can provide an example of a society that is reconciled with its indigenous peoples, has abandoned colonialism, is a strong, cohesive democracy and is capable of celebrating difference, guaranteeing equality and respecting human rights.

In a policy speech delivered before the 1972 federal election, Gough Whitlam highlighted the inevitable relationship between Australia’s foreign affairs and its policy toward Aboriginal people:

Let us never forget this: Australia’s real test as far as the rest of the world and particularly our region is concerned is the role we create for our own Aborigines. In this sense, and it is a very real sense, the Aborigines are our true link with our region. More than any foreign aid program, more than any international obligation which we meet or forfeit, more than any part we may play on any treaty of agreement or alliance, Australia’s treatment of her Aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians ...

I am confident enough to suggest that this prescription might be enlarged. Rather than continuing to perceive ourselves defensively as a nation succumbing to international judgment, Australia in the future should seek to fulfil its potential to be an international example of a responsible and just modern democracy. The example and the moral force of reconciliation founded on justice may well be the most important contribution that Indigenous and non-indigenous Australians will make to the Asia-Pacific.

Both black and white Australians have struggled for two centuries for that elusive ideal: a moral community in the Antipodes. Eddie Mabo stands as the latest figure in that substantial if uncelebrated line of agitators, which includes the late Lionel Murphy. Mabo was an agitator, a pragmatic idealist. Someone who dared to dream of the ideal of Indigenous justice whilst pursuing this ideal with such contagious zeal that the ideal became reality. The by-then putrid foundation stones of our country were torn out in a fundamental legal renovation, and replaced with a new cornerstone – a cornerstone hewn over ten years by a motley group of black activists and white lawyers, agitators the lot of them.

Two hundred years of clinging to terra nullius as a moral and legal foundation for nationhood left this country torn by irreconcilable contradictions. For the invisible had become visible. Those doomed to extinction had survived. Those willed to disappear through assimilation had refused to abandon their cultures, their families and their identities.

Now that the symbolic and institutional founding stones have been suggested aft er Mabo, we must very clearly appreciate that substantive justice must now follow. The symbols have got to be filled out.

Reconciliation must mean more than good feelings; it must be premised on actual justice. Social justice must become a reality for the people who still walk the streets, who still sleep under the bridges, who still have little prospect of living past their fifth decade, who are still the most likely to be in Australian criminal custody and who continue to be amongst the most wretched of the Earth. After Mabo, we surely have the best opportunity to change these things.