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Autumn 2003 cover

National Observer Home > No. 56 - Autumn 2003 > Articles

The History of Appeasement Repeats Itself

Professor Leslie R. Marchant

Appeasement, the attempt to conciliate or bribe a potential aggressor by making concessions and sacrificing principles, became a highly damning charge against politicians and commentators in Britain and France who, prior to World War Two, believed that by satisfying Hitler's European territorial demands, they could avoid all-out war with Germany. The appeasers, in turn charged their accusers of belligerence and "warmongering". The war proved inevitable, however, and the appeasers were forced to join the war effort or in some cases betrayed themselves as pro-Nazi "fifth columnists".

These observations occurred to me after reading newspaper reports of the vicious bashing of members of an S.B.S. television news crew by a gang of Muslim youths, outside the Lakemba mosque in New South Wales on 16 August 2002, which left two of the crew hospitalised and another shocked and severely bruised.

The S.B.S. team were attempting to interview Lakemba Muslims, seeking their reactions to a severe gaol sentence handed out to a Muslim youth of Lebanese extraction charged with leading a gang of rapists who deliberately targeted young (non-Muslim) Australian women.

Evidence given in the court case made it clear that the rapes were motivated by the perpetrator's contempt for "Aussie women", and the accused declined to express any remorse for his crimes.

The severity of the gang-leader's sentence had feelings running high in Lakemba, home to Australia's largest Muslim community and site of Australia's principal mosque, presided over by the Grand Mufti Sheikh Taj Eldine El-Hilali.

As the Melbourne Herald Sun's Andrew Bolt, The Australian's David Leser and Greg Callaghan, and myself (National Observer, Summer 2002), have made clear, Australia's most senior Muslim cleric is on record as supporting Hamas, Hezbollah and Islamic Jihad, Muslim fundamentalist terrorist groups.

In earlier sermons he had preached hatred against Jews and Americans and "those who serve them", and previously allowed the pro-Al Qaeda Islamic Youth Movement to use his mosque's facilities to publish the Nidaíul ("Voice of Islam") newsletter, which printed respectful interviews with Osama bin Laden and broadcast his fatwas to kill "Americans, Jews and their allies". Is it therefore any wonder that deep feelings of antipathy towards Australian non-Muslims seem to run so deep amongst Lakemba's Muslim youth? And is it unreasonable to suggest that while Sheikh El-Hilali is allowed to continue preaching support for a Muslim fundamentalist jihad (holy war) against the West, at least some of his congregation remain susceptible to calls to join such a jihad in Australia? Are we allowing the phenomenon of a "fifth column" to take root in our country? If we consider the acts of appeasement on the part of sections of the media, carried out in the name of a version of multiculturalism which deliberately minimises, and sometimes even censors, instances of local Islamic fundamentalist hostility towards Australian society, the prognosis seems valid.

The attack on the S.B.S. television crew is a pertinent example of both the failure of appeasement and the threat of such a "fifth column". S.B.S. television, faithful to its multicultural philosophy, avoids portraying any "ethnic community" in a negative light, even to the point of self-censorship.

In 2001, S.B.S. filmed television footage of Sheikh El-Hilali delivering a sermon in which he praised Palestinian suicide bombers as "heroes" for killing Israeli civilians (Australian citizen Malki Roth died in one of the attacks, just prior to El-Hilali's sermon). The footage was filmed as part of an Insight report on "Terrorism in Australia", due to be broadcast on September 20. In the intervening period, the September 11 terrorist attack on the United States occurred, and S.B.S. decided not to run the incriminating footage.

Herald Sun journalist Andrew Bolt contacted Insight executive producer Lindy Magoffin who told him that she had decided not to screen the footage because it had been filmed before the September 11 attack and it would have been "misleading." How so? Sheikh El-Hilali is said to have "deplored" the September 11 attack, but has persistently refused to condemn the perpetrators. In later statements, he opted for the Islamic fundamentalist anti-Semitic fantasy that accuses "the Americans and the Jews" of being behind the outrage.

It apparently made no difference to the thugs who bashed the S.B.S. camera crew that they represented a media body largely sympathetic to their community and at pains not to put it in a negative light. Perhaps they simply believed that no kafirs (infidels), not even sympathetic ones, had a right to be on "their turf"? So much for appeasement. As so often happens, it can lead to "poetic justice".

There is a fine line of distinction between deliberate censorship and simply allowing a news item to die. On the midnight news service of 25 August 2002, the B.B.C. overnight news, relayed via the A.B.C.'s Parliamentary & News Network, reported a rally in London's Trafalgar Square of the Muslim fundamentalist Al-Muhajiroun, supporters of Osama bin Laden's Al-Qaeda, including Sheikh Abu Hamza al-Masri, accused by the British Government of recruiting fighters for the terrorist group, calling for a jihad in Britain.

Waking early next morning, I found the item missing from the P.N.N. news, and it was not mentioned on other A.B.C. stations. The three daily newspapers available in Melbourne - The Age, The Australian and The Herald Sun - also failed to mention it.

One would have thought that a bold manifestation of the birth of a Muslim fundamentalist "fifth column" in the streets of one of the West's great cities might be newsworthy. However political correctness apparently required a different view.

Most Australian newspaper editors seem more concerned with appearing to appease Muslim sensibilities than with openly discussing the threat of Muslim fundamentalism. They continue to give prominence to reports of vandalism against Muslim places of worship and call for tolerance towards Muslim citizens, but in a pronounced case of imbalance, news of attacks on synagogues and Jewish citizens receive far less coverage, despite the fact that no Jewish cleric or community leader has made any inflammatory statement, nor manifested any hostility to Australian society.

Not so with Sheikh El-Hilali. His inflammatory public statements and sermons are not confined to support for Muslim fundamentalist terrorism. Referring to the notorious gang-rape case, when it first became news, he blamed "Australian society" for the perpetrators’ crimes. In October 2001, when an Indonesian "people-smugglers" boat sank and 350 Muslim asylum seekers drowned, he contrived to blame Prime Minister John Howard and vilified him in a statement to the Press: "All the sharks and the carnivorous fish who preyed on these innocent children are now thanking Mr Howard for his policies."1

This Muslim cleric, nominally the leader of Australia's Muslims, has a long history of antipathy toward the country that now tolerates his presence. In 1986, after protests from the Jewish community and many moderate Muslims opposed to his installation as Imam, the Federal Government instituted proceedings to deport him. He was in this country only on a temporary entry permit issued in 1982 - which he violated by overstaying - on the understanding that he cease his violent sermonising and return to Egypt. However, after lobbying by some sections of the Sydney Muslim community and their supporters in the Labor Party, successive Immigration Ministers, fearing a backlash from his militant supporters, continued to extend El-Hilali's visa, until he was granted permanent residency by Immigration Minister Gerry Hand in 1990.

Thanks to this policy of appeasement, Australia has as its most senior Muslim cleric, a supporter of a world-wide Islamic jihad, whose aim is the destruction of the "infidel" West, and whose sermons and activities encourage the creation of a radical Muslim "fifth column".

In 1990, The Australian was calling for his deportation, but has since gone quiet. The Age does not seem to want to know about it. S.B.S. fails to provide television footage of his poisonous preaching.

To my knowledge, of the mainstream media, only the Herald Sun's Andrew Bolt is doggedly (and bravely) pursuing the issue of El-Hilali's role in the growth of Islamic fundamentalism in Sydney's Muslim community.

With the exception of Bolt and The Australian's Janet Albrechtsen, the mainstream Australian print media seems to be at pains to appease Muslim sensibilities, even to the extent of publishing seemingly obligatory reports of Muslim "disquiet" over the raising of issues such as the anniversary of the 11 September 2001 terrorist outrage. As Albrechtsen wrote, on 4 September 2002, this form of appeasement "sucks the life out of a rage we should maintain towards those militant Islamist terrorists".

Even in the very country where the 3,214 September 11 victims (including ten Australians) perished, appeasement also seems to be the order of the day. Much of the commentary on the Hollywood film, The Sum of All Fears, concerned trivial issues such as whether the leading actor, Ben Affleck, was suitably convincing, or the slightly less trivial issue of whether Tom Clancy, the author of the book on which the film is based, is the actual author of several books published in his name.

However whether Clancy employs "re-writers" or even "ghost-writers" is trivial when compared with his apparent willingness to allow a totally revised history of his book, in order for Hollywood to appease "Muslim sensibilities".

In his book, the plot involved Islamic extremists, helped by former East German communists, planning to detonate an atomic bomb in the United States. In the film, the terrorists have become aged German Nazis and an Austrian billionaire!

Craig Matheison, The Bulletin's critic, was highly critical of the film, but not for its revisionism. His only comment on the expurgated Islamic extremists and their replacement by ludicrous old Nazis was that "the film opted for a less divisive villain".

How did this revisionism of Clancy's original plot come about? Mace Neufeld, the film's producer, and director Phil Alden Robinson, apparently with Clancy's permission, opted for the changes after they were lobbied by the "Council on American-Islamic Relations", who were "concerned about negative images of Muslims or Arabs". Director Robinson wrote to the C.A.I.R., "I have no intention of promoting negative images of Muslims or Arabs, and I wish you the best in your continuing efforts to combat discrimination".

This is not the first time that Hollywood has rewritten history, of course, but given that the 1993 U.S. World Trade Center bombing, the 1998 bombings of the U.S. embassies in Tanzania and Zambia, the attack on the U.S.S. Cole in Yemen in 2000, and the 11 September 2001 terrorist carnage in the United States were all perpetrated by Muslim Arabs, "negative images" are not only unavoidable, they are historically accurate representations. This act of political and artistic cowardice is akin to blaming the Japanese attack on Pearl Harbour on some other nationality.

In Australia too the appeasement of Muslim fundamentalism continues under the rubric of "multi-culturalism". It would seem that a new word has entered Australian political discourse - "Islamophobia".

Adding to the already formidable nomenclature of the politically fashionable multiculturalists, it is, like the use of other negative terms such as "racism" and "xenophobia", freely and dishonestly used in an attempt to anathematise their opponents, particularly those concerned about the security, or indeed, the fate of their country.

Genuine racists exhibit "offensive or aggressive behaviour towards members of another race, stemming from a belief in their own race's superiority" (The Macquarie Dictionary), and xenophobes "fear or hate foreigners or things foreign" (ibid.), and Australia has its share of such people. "Islamophobia", however, is reserved for those who are concerned about the growth of religious fanaticism in a growing Muslim community, and are characterised as having an irrational fear ("phobia") of followers of the Muslim religion.

The use of this term was observed in two opinion columns by Melbourne author and academic Robert Manne, in The Age of the 16th and 25th of September 2002. In these, he moved beyond its dubious "psychological" nature to claim that it was simply a new form of "racism" - ignoring the fact that Muslims are of many different races, including Europeans and other Caucasians.

Though in this instance intellectually dishonest, the anathematising power of the term "racist" is so potent that the "Islamophobe-racist" nexus was simply too expedient for Manne to forgo.

He described concerns about the growth of radical Muslim fundamentalist tendencies in the Australian Muslim community, raised by such journalists as Bolt, Albrechtsen and The Age's own Pamela Bone, as an "ugly new phobia and a form of racism" and claimed they were "part of a rightward drift in Australian political culture", which he attributed to "the period of Hansonism, a response to Muslim asylum seekers after the Tampa crisis, and September 11".

Manne's radical transformation from leading conservative commentator and editor of the conservative journal Quadrant, to leading leftist critic of conservatism, has been dizzying to behold, but he seems to have lost his objectivity and part of his memory during the rapid transition. When editor of Quadrant, he published several articles criticising multiculturalism's divisive effect upon Australian national and social cohesion. He also published various letters warning of the possibility of Australian Muslim and Arab radicals siding with foreign powers and movements hostile to Western liberal democracy.

It is historical revisionism to claim these concerns are part of a new "rightward drift in Australian political culture" that has only occurred since 1996 and can somehow be blamed on the incumbent Federal Government and its policies. As far back as February 1989, during the furore over Salman Rushdie's Satanic Verses - long before John Howard's Prime Ministership, Pauline Hanson or Middle Eastern "boat people" came on the scene, and long before 11 September 2001 - there were many indications in both Quadrant and The Age warning of the phenomenon. But these were the days before Manne discovered Orwellian "memory holes" down which inconvenient historical details can be made to disappear.

In December 1990, while Australian forces were participating in the war to drive Iraqi forces out of Kuwait, Manne, as editor of Quadrant, published a page-length letter of mine, entitled "The Meaning of Multiculturalism" in which I commented upon Manne's defence of Australia's participation in that war and proceeded:

"Manne writes, however, that ‘it is a conservative fantasy to argue that multiculturalism poses a danger to national security’. Yet his various examples of statements by Arab-Australian spokesmen seem to indicate that it is not at all fantastic to question multiculturalism's effect on the loyalty or otherwise of many Australian citizens, surely relevant to our national security at a time when Australian military forces are involved in the Gulf crisis. It is important here to make a distinction between people who oppose, for whatever reason, Australian involvement in the Gulf conflict, and those who are actively supporting Baghdad.

I can understand many Arab-Australians’ uneasiness about their adopted country going to war with an Arab country, but some Arab-Australians have moved beyond that reticence and are actively supporting Iraqi aggression and by implication Iraq's kidnapping of Australian citizens. One can only presume that in any military engagement these Arab-Australians will be working for the defeat of their own country's troops.

Whatever else one might say about multiculturalism, in practice it has meant encouraging immigrant groups to maintain an allegiance to their former homelands, and despite the generally understood meaning of ‘culture’, multi-culturalism's maintenance of mother country influences includes politics and the establishment of political organisations based on mother country politics. For many Arab-Australians, it means pledging allegiance to a country whose aggression has led it to confront Australian military forces.

It is worth noting that the most blatant example of this, the August demonstration in Melbourne's City Square, composed of many Arab-Australians and leftist, mostly Trotskyist, groups, involved not mere opposition to Australia's involvement in the Gulf, but support for Iraq's aggression and its results. This was made perfectly clear when some of the Arab-Australians set fire to an Australian flag and a Kuwaiti flag to the cheers of many in the demonstration's ranks. Some spokespersons from Arab-Australian organisations have dissociated themselves from the demonstration but no Arab-Australian publicly condemned the burning of the Australian flag. Burning the flag is a statement - ‘I forsake this country and its people.’ Burning the flag of your own country is proof of disloyalty.

That single incident of flag burning carried out with impunity and without an outcry of condemnation from loyal Arab-Australians could only be seen as a statement of hostility towards Australia. Multicul-turalism has not been able to separate the maintenance of customs, traditions, and ‘culture’ from the political and ideological concerns of foreign countries. It has removed from immigrants the onus to be Australians first and foremost.

When the policy of multi-culturalism can be even partly blamed for what used to be known as treachery, it does not strike me as fantastic to worry about our nation's fate."

Manne could not possibly have disagreed with my point about the radical difference between opposing the participation of one's country in a particular war, and actively supporting the enemy side.

After all, he had made the very same point in earlier Quadrant editorials regarding opponents of the Vietnam War. But the essential issue is that he allowed me a full-page letter to express them. In other words, he was prepared to disseminate views that he now calls "Islamophobic".

Hence in the 1990s concerns about Muslims and Arabs interpreting multiculturalism as an opportunity to agitate in support of political movements or ideologies hostile to the liberal democratic values of the Western countries in which they live, were at least a legitimate subject of debate for Manne. In 2002, they are for him simply an "ugly new form of racism."

Further, Manne attempts to rewrite history to suggest that what he calls "Islamophobia" is a new phenomenon, directly attributable to "irrational fears" whipped up by the likes of Pauline Hanson and Phillip Ruddock, or as an "irrational" response to the September 11 terrorist attacks. But what has changed over the past ten years? Muslim fundamentalists may have forgotten the fatwa on Salman Rushdie. The jihad has simply moved on. Now we have massacres of innocent civilians by hijacked airliners and Al Qaeda video messages in which Australia is included as an "infidel" enemy target, and whose Muslim citizens are urged to join the jihad.

It may be true that the majority of Australia's Muslims desire to live in peace with their non-Muslim fellow citizens, a desire expressed one month after the September 11 massacre, by Melbourne's Sheikh Fehmi El-Imam, secretary of the Melbourne Board of Imams, who stated:

"Melbourne's Muslims stand united against any form of holy war or terrorism. We have no room for anyone calling for a jihad or terrorist acts. Hatred of the United States will only bring havoc and misery to Muslims. Terrorism is un-Islamic and anathema to Muslim Australians. We are going to spread peace and have a peaceful relationship with whoever is living with us in this part of the world."

This welcome statement was not-able, however, because it was the only one by a senior Australian Muslim leader which unequivocally condemned the September 11 massacre and its perpetrators, terrorism and calls for a jihad.

Many others, including Sheikh Taj Eldine El-Hilali, while "deploring" the deaths of the victims, took care not to condemn the perpetrators, and peddled the Muslim fundamentalist, anti-Semitic fantasy that "the Jews and the Americans were behind the attack".

In view of Osama Bin Laden and his Al Qaeda Islamic fundamentalists claiming responsibility for the September 11 massacre; the persistent refusal of many Australian Muslims and their community leaders to condemn it outright; the attempts to shift the blame onto its victims; their opposition to Australia's involvement in the counter-terrorist war, or any conflict with an Arab or Muslim power ; and their depiction of these very criticisms as "anti-Islamic", it is not at all irrational to fear that this pan-Islamic solidarity will have ramifications for national security and social cohesion in a country with a growing, 300,000-strong Muslim population.

Critics of multiculturalism have published many articles critical of earlier instances of ethnic communalism and multiculturalism's ramifications for Australia's national cohesion and foreign policy formulation. Many of these addressed the issue of conflicts in the former Yugoslavia and the Greek-Macedonian hostilities in the early 1990s, and the ethnic strife these caused within Australia. Again, they predated Manne's alleged post-1996 "rightward political drift".

The issue was then, as it is now, the prospect of the policy of multi-culturalism encouraging ethnic or religious communities here to maintain allegiances to their former homelands or to foreign political movements whose objectives are hostile towards Australia's political and social values.

A decade later, we have Alexander Kouttab, of the Australian Arabic Council, threatening much the same thing.2 Kouttab claims to be concerned about the possibility of real bigotry (or "racism", as he puts it) towards Muslim Australians should the Australian Government commit troops to a Middle Eastern conflict. But rather than simply asserting the legal right of all Australians to dress, worship, act and think as they please without fear of harm or harassment, he goes on to suggest that the Australian Government ought to shape its foreign policy so as to appease what he claims are the "sentiments of Australian Arabs and Muslims".

And what are these sentiments? Opposition to the U.S. alliance and support for Saddam Hussein! Furthermore, failure to appease these "sentiments" will "reverberate and affect Australia's community relations" and "lead to racism".

Mr. Kouttab has been quick off the mark. He has already assimilated the message of Manne's use of the term "Islamophobia". His demand is nothing less than that the Australian Government must shape its foreign policy to suit the objectives of foreign Arab or Muslim states, or face the prospect of bogus claims of "racism" towards Australian Muslims, which will, in turn, increase the hostility of Muslim fundamentalists towards Australia. This is simply political blackmail.

Now that it is clear that Asian Muslim supporters of Osama bin Laden and Al Qaeda have, with the terrorist bombing in Bali, begun targeting Australian citizens, we have a clear case with which to test the loyalty of all Australians, including the leaders of the Australian Muslim and Arab communities.

It is not unreasonable to expect unequivocal opposition to this terrorist attack and unqualified sympathy for the victims, and it must surely betray a callous form of opportunism to use the occasion to force political demands. Indeed, to do so is to become an accomplice in the perpetrators’ objective.

However, three days after the news of the Bali terror bombing, a spokesman for Dr. Ameer Ali, president of the Australian Federation of Islamic Councils, said Dr. Ali was to meet Prime Minister, John Howard.

At this meeting, said the spokesman, Dr Ali will tell him "he believes the Government needs to look at changing its policy in terms of its view on the war against terrorism and support of America". With few exceptions, the media appeasement of Muslim fundamentalist "sentiment" goes on, and the likes of Mr. Khouttab and Dr. Ali are not called to account for their thinly-veiled threats.

So in a seven-page, in-depth article, "Call of Islam" Diana Bagnell interviewed a wide range of Australian Muslim citizens and religious and community leaders.3 Not one expressed condemnation of the Bali bombings, nor unequivocally opposed Muslim fundamentalist terrorism.

After a mere three weeks since scores of Australian civilians died in the Bali carnage, many Australians may have been disappointed, to say the least, to read that the country's leading national news magazine chose to publish seven pages about the "uneasiness" of those in whose name - rightly or wrongly - their fellow citizens were murdered. They may also be wondering why the country's Muslim leaders find it impossible to issue an unequivocal condemnation of Islamic fundamentalist terrorism, one that is not conditional upon the issuance of political demands.

One needs to recall Sheikh Fehmi El-Imam's positive declaration of opposition to the Muslim fundamentalist terrorist jihad, to remind oneself that there are indeed moderate and peaceable Muslims among us, one could easily believe otherwise, given the paucity of similar sentiments. And how much comfort can be taken from any statement by a Muslim leader while many practise al-taqiyya - what some call the "moral right" of Muslims to mislead and lie to non-Muslims? But a realistic acknowledgment of the possibilities of an appeased Muslim fundamentalist "fifth column" in this country is, by Robert Manne's definition, "Islamophobia".

Robert Manne was once a strong advocate of freedom of speech and truth-telling in the face of "politically correct" hostility. But in his new quest for legitimacy with the multicultural media elite, he seems to believe he has to atone for former "sins" and a mere mea culpa is not enough. His mandatory mea maxima culpa must involve the kind of moral vanity that not only presumes to detect subliminal "racism", but assumes the right to anathematise those who refuse to covert to the multicultural project, or who have valid concerns about its ramifications for the preservation of Western liberal democracy.

Manne writes that he is "disturbed by the ease" with which his "Islamophobes" talk about the superiority of Western culture to the culture of Islam. What he should be disturbed by is the ease with which Muslim fundamentalists talk about the "evils of the West". Are we not inviting the decline of our own culture's Western liberal democratic values by failing to defend them against a totalitarian, anti-democratic and anti-liberal movement that uses religious and cultural arguments to reject these values, and in many cases, manifests open hostility towards them?

Australians have indeed an obligation to defend their own culture against one that tolerates sexual inequality, hostility to "unbelievers", draconian punishments for non-violent crimes, death for adulterers, the resort to al-taqiyya and an allegiance to fellow believers abroad that is apparently stronger than their loyalty to their fellow Australian citizens.


1. The Melbourne Herald Sun, 19 November 2001.

2. The Melbourne Herald Sun, 25 September 2002.

3. The Bulletin, 5 November 2002.

THE THREAT TO THE WESTMINSTER SYSTEM OF PARLIAMENTARY DEMOCRACY: THE JUDICIARY'S REPLACEMENT OF PARLIAMENT AS LAWMAKER

PROFESSOR LESLIE R. MARCHANT

The most disconcerting outcome of the Mabo and native land title affair is that the High Court turned the Australian system of parliamentary democracy topsy turvey, by assuming the role of law maker in place of parliament. For the legal judgment laid down new principles for the nation that required new legislation by parliament. It should have been the other way around. The matter should have been discussed by the elected parliament, laws passed, and the judicial branch set to make judgments on these where required.

The Westminster System of parliamentary democracy, inherited by Australia, is fashioned like this: the citizens are sovereign, and hold sovereign power. They are all governed according to the Rule of Law no matter how high or insignificant they are placed. The laws that rule citizens are passed by an elected parliament.

A system of checks and balances was created, as the absolutist monarchies crumbled, to ensure that this system prevailed. This was done by separating powers into three branches of government.

Parliament, elected by citizens and representing these, is the highest sovereign body in the land. It alone can raise and spend taxes, and pass laws.

The executive branch, known as the Crown, and formed by Cabinet and Ministers of the Crown and public servants, administers the laws passed by parliament. It cannot make laws or decrees or raise or spend taxes without the authority of the elected parliament.

The third branch, the judiciary, also cannot make laws. Its role is purely judicial, that is, administering justice, and making judgments according to the laws passed by parliament.

There have been departures from this pattern. After strong, ambitious political parties emerged with ideologies, the parties which won elections often claimed to have a mandate to govern and carry out their programme without parliamentary obstruction. This gave rise to "Executive Style Government" led by Chief Ministers and their Cabinets, with parliament being undermined or bypassed, or treated as a rubber stamp so that the laws passed reflected the party platform or ideology. The late Patrick O'Brien, in such works as The Executive State: W.A. Inc. and the Constitution, 1991, wrote extensively on the rise of the Executive State in which ministers acted like monarchs of old, manipulating parliament for their own purpose, or treating it as an obstruction.

More recently, some judges who believe they can fashion the State and its citizens better than elected parliaments have followed the same direction. But in their case this is done, especially at High Court level, by way of judgments which take on the appearance of Common Law binding all. The main difference between the executive branch and the judiciary when they try to lay down the law, is that Cabinet members are also elected Members of Parliament. They can operate in that sphere. Judges cannot. They are appointed. The only way open for them to pass the laws they think should be passed, is to stand for parliament to join the legislative branch where their proposals will be debated by elected members. Newly appointed High Court Judge, Justice Dyson Heydon, has written a comprehensive, incisive study of this in an article entitled "Judicial activism and the death of the Rule of Law".1

It was in the debate stage of legislation, that the weakness of the Mabo decision about native land rights, and the weakness of the Westminster System of government in Australia, were both revealed. For the debates were confined to the judiciary which was not as well equipped as parliament for that process. They purported to be primarily legal discourses. And parliament never got the chance to broaden these, as should happen in a modern parliamentary democracy.

Five basic issues, four legal and historical, and one about ethics, should have been addressed and thoroughly discussed as soon as the project about "native title" was mooted. The four legal ones were, first, whether the Torres Strait Islander Mr. Mabo was the right choice of person to make decisions about Australian Aborigines? Secondly, what place is held by the Torres Strait Islands in the Commonwealth of Australia? Thirdly, did any other power have or previously have sovereign rights in Australia? Fourthly, was Australia a Terra Nullius, as discussed by the High Court? The ethical question that needed to be discussed, was not "who owns the land?", but, in view of the world need for food, "how should the land in Australia be used?" and "who should use the land? to ensure the production of plenty."?

These issues were never explored or discussed, although the standing and acceptance of the final legal judgment by others would rest upon them. For disregarding them promised not only that the Australian High Court judgment would be of little or no use in helping to guide other nations with similar situations, who should have been offered a well thought out precedent to follow. It also promised to cause persistent problems with the judgment at home.

The main cause of ignoring the basic issues, and relegating them to the margin, is that they, like the form of land ownership existing in Australia, are the products of history, and history seldom has a function in legal judgments which primarily are based on the expression and usage of words and terms, although historical evidence is sometimes brought in and referred to.

These four legal issues which needed to be addressed are primarily historical. They belong to, and were fashioned by the colonial past when Australia was settled by Britain in a spasmodic manner, with the idea of bringing its lands into production to add to the wealth of nations and prosper people globally in the way envisaged by intellectuals in the Age of Enlightenment who sought the world to be in a more natural state.

Was the Torres Strait Mr. Mabo the Correst Choice for Aboriginal Land Rights?

The High Court's election of the Torres Strait Islander, Mr. Mabo, to decide on the position of Australian Aborigines consequent to colonisation by Britain, is unimpressive. An historian would not have made that choice. For those islands and the people on them were closely linked with New Guinea and its people, as missionary and other records show. More important, the Torres Strait Islanders, unlike aboriginal people on mainland Australia, have an agricultural socio-economy. They are not mere hunters and fishers and food gatherers. They use their land for production. Missionaries in the London Missionary Society, in fact were so impressed by this, that they considered converting and training Torres Strait Islanders to serve as a vanguard to send to convert the Australian Aborigines, and lead them to "advance" economically from the state of "hunting and food gathering", to be tillers of the land.

Choosing Mr. Mabo was rather like having an American Court select a resident of Puerto Rico, to make a judgment about the Indians on the plains of North America.

The Torres Strait Islands and the Commonwealth

Little time was spent by the High Court, apart from Justice Brennan, on discussing the Torres Strait Islands. Views were concentrated primarily on New South Wales. But Mr. Mabo's homeland has nothing to do with that part of Australia. The Torres Strait Islands were not included in the area annexed by Cook in 1770, to become New South Wales. Those islands were annexed by the colony of Queensland more than a century later, in doubtful circumstances, posing the legal problem "Can colonies colonise?". Brennan missed these complexities, which are relevant in history, for Britain was reluctant to move. The islands, which probably should have gone to New Guinea, after federation ended up as part of the Commonwealth of Australia, providing it with an advantage in northern waters which the Mabo judgment might have endorsed and confirmed.

This possible endorsement opens the way for two critical comments, both concerned with 1990s politics, by future historians. It could be claimed that, while other colonial powers decolonised in the face of growing liberation movements, the High Court has stifled any such attempt in the Torres Strait Islands by integrating them into a national Australian structure, and funding them, instead of allowing them to become independent like others. It could also be claimed that this arrangement, made by the High Court, preserves Australian control over the busy Strait that separates Australia from New Guinea and forms a seaway from the Indian Ocean to the Pacific. That Strait, which is of value strategically and commercially, is now in the sole hands of Australia. This matter, which concerns the pattern of the Pacific, might have been raised by an informed parliamentarian, and debated, if native title had been handled by the Parliament.

Sovereign Rights

The third item, which should have been roundly discussed, was the neighbourly one of did any other state or nation possess "sovereign rights" in Australian territory, either by claim or usage? The point about this is that it would add a new dimension to the British annexation of native lands in Australia.

This factor in Australian history has not been explored by scholars, as it should have been. Emphasis, instead, has been placed on, and funding primarily devoted to finding out which European power first discovered and charted the Australian continent. Ample evidence exists to show that Australia has a more complex and diverse history, especially on its northern and western sides. For the western coast forms part of the Indian Ocean rim which saw great civilisations rise and explore and spread, while the northern part, which abuts the Spice Islands and shares the same monsoons, lies close enough to be part of the empires created in that monsoon region. Documentary and other evidence, including botanical and Aboriginal legend, indicates that offshore reefs and coastal parts in northern Australia formed part of the oceanic territories of the Sultanates formed in Indonesia. There certainly is evidence of rice being cultivated at Cape York. What the Chinese and later empires such as the Portuguese did was incorporate overseas territories as vassal states. The point about this in regard to Australia is that the tribal system found in Australia did not permit that usage which required a structured government.

What Britain did in these circumstances, when it decided to settle the northern part of the continent, was to extinguish all other sovereign rights by imposing the British Rule of Law, in particular those for customs and immigration. This was not difficult to do, for by then the Dutch had undone the power of the Indonesian Sultanates, whose power completely disappeared as a result of the Dutch colonial policy of direct rule.

Terra Nullius

This raises the fourth point about Australia being classified as Terra Nullius (sic) when it was annexed, as the High Court and others have claimed. This classification, which is in error, and imaginative, is quickly dismissed. There is not one mention of Australia being a Terra Nullius in any document in any archives in any relevant nation in Europe. For that term had a special legal meaning which limited the usage of the term to uninhabited places such as Kerguelen Island and Heard Island and Antarctica which were annexed in special ways. Australia had long been known to be inhabited like the New World in America, and was settled in the same context.

The Ethical Question

The ethical factor which should have been discussed concerns the problem of feeding the world's growing population, and stems from Thomas Malthus (1766-1834) who posed this problem during years of hardship in Europe, in his Essay on the Principle of Population as it affects the future improvement of Society. This appeared in 1798, not long after New South Wales was settled and brought into production. The moral point raised by this was should lands not in production, then called "waste lands", be farmed to benefit the world and its people? No doubts were held about the need for this at the time. Hopes were high. Science helped by promising more productive and better strains of animals and more productive yields. That is why volumes of research reports from the Royal Society went to New South Wales from the beginning, to make it a new granary.

Some people, mainly in view of traditional usage, were hurt in the process of converting "waste lands" to production. In Britain, for example, some villagers suffered when the commons were enclosed to help the controlled production of sheep and other stock. This resulted in displacements and personal hardship as has been well recorded. But the matter was not clear-cut. Varieties of moralities were involved, with increased and improved production being the constant aim. This complexity was pinpointed, together with the moralities involved, in a divisive international political action. When Poland was partitioned in 1772, 1793 and 1795, with large tracts going to Russia in 1793 in particular, Britain was not impressed. Russia, however, made the argument against this move difficult by claiming that it was acting for "the good" by converting the large estates kept by a few for "hunting and food gathering noblemen", to agricultural production. The extensive lands used by hunters and food gatherers abroad were viewed in the same light. Did a few people have the right to tie up lands that could be used for agricultural production?

Certainly the tribal peoples living on what were viewed as "waste lands", could be incommoded, and their life style radically changed if their land was brought into production. This matter, which was addressed by Aboriginal Protection Societies and concerned individuals at the time, posed serious moral questions which should have been thoroughly explored and debated in the Mabo affair, for the problem of feeding the world's rising population has not diminished. It has, in fact, grown and is still relevant. Besides this, in modern times, land reform has sometimes taken the form of appropriating the land of productive farmers to distribute to those who are not productive, as happened in China under Mao, and in Zimbabwe, with disastrous results. The course followed in Western Australia after British settlement was to leave the indigenous tribes as they were, and let individual members decide whether to follow a new life style. Some took up occupations. Some farmed. For many settlers, having Aboriginals join in modern society seemed preferable to leaving native peoples as displays for tourism.

The Mabo Decision

The Australian High Court judges’ account of how the Torres Strait Islands people came under their jurisdiction and that of other courts in Australia is glibly presented. One judge, Justice Brennan, lists reasons for its annexation by Queensland, but misses the basic reason. The point is that the Torres Strait Islands were annexed by Britain during the international partition of the Pacific which coincided with the colonial scramble for Africa and the slightly later scramble for Asian territory which resulted in colonisation by means of leasehold territory in China, such as in the case of the New Territories in Hong Kong which evidenced a new style of colonial expansion. Britain participated in this partition which was done in accordance with then accepted principles of international law.

The annexation of the Torres Strait Islands with its own indigenous people, was prompted by the colony of Queensland which did not possess the legal right to extend its colonial boundaries. That was the sole right of the Parliament in Westminster. Colonies cannot legally colonise.

Other territories in the Pacific were acquired by Britain for its Second Empire during the partition of that ocean, in different ways with different arrangements and conditions. Unlike the Torres Strait Islands, each of these colonial territories later achieved independence in one form or another during the period of decolonisation when Britain withdrew from abroad to become involved with regional growth in Europe. Unlike Britain, Australia did not decolonise. It preserved its control over its acquisitions giving its High Court continued jurisdiction in these overseas territories which were not originally included in the colony of New South Wales.

This point is relevant to the understanding of the current situation in regard to the Torres Strait Islands. For what has happened is that the Australian High Court judges have assumed the duties of international court judges. Their Mabo decision is not only of domestic interest and significance. What they have decided in regard to Australian colonial territory may have repercussions abroad. For Mabo seems to have been designed as more than a test case for Australia, and a precedent.

Of interest in this regard is the case of Fiji. This was acquired by Britain in 1874, a hundred years after it was visited by Cook. There Fijians retained large measures of self government under Fijian leaders of rank. The continuance of this traditional system was threatened by British colonial developed Indian immigration. These immigrants settled and acquired property which promised to cause conflict. This emerged when the Fijian chiefs acted to preserve traditional native rights. The interesting thing about this as far as Australia is concerned is that the Australian Government, primarily for political ideological reasons, supported the immigrant Indian group, the not traditional Fiji native owners of the island.

This appears contrary to the line that Australia follows in regard to its own colonial territories. Torres Strait Islanders remain owners of their land as in New Guinea where native land ownership, in general, was maintained and protected.

Although the Mabo case related to the Torres Strait Islanders, the High Court judges inexplicably wrote at length about the Australian situation. The written judgment by Justices Deane and Gaudron, for example, cover 36 pages, extending from page 56 to page 91 in the judgment. On the second page of this the judges devote two lines plus one word about the Torres Strait Islands where Mr. Mabo lived. The next thirty pages are devoted to the subject of New South Wales which is remote geographically, historically and legally from the Torres Strait Islands. In the last five pages the judges come back to the subject.

What is also essential here is to explain how Australia was annexed and occupied. This was done in different parts of the continent at different times. Britain did not annex Australia in 1770 and occupy it in 1788 as the High Court judges imply. New Holland, as the continent was then known, was politically partitioned as a result of the first partition of the Pacific and later the Indian Ocean which began after the Seven Years War (1756 - 1763).The western part of the continent was not acquired by Britain until 1829, nearly half a century after Cook took New South Wales. Western Australia therefore has totally different political and legal foundations from those of New South Wales, and had totally different relations with the aborigines in that territory. And these relations were made in accordance with legal authorities which were totally different from those in the mid 18th century which are used and quoted by the Australian High Court judges who treat New South Wales as if it were all of Australia. For by the time Western Australia was founded as a colony, Vattel no longer provided the guiding principles of international law.

The current danger is that the High Court account of the history of Australian annexation and that of the Torres Strait Islands may be used as the authoritative text for present and future debate on the topic and to justify now and for posterity political actions which will be taken in accordance with the High Court's image of Australian history. This should not be allowed to happen. Bad texts, even if they are accepted and praised by some who approve the ideas in them, cause irreparable damage and do not win intellectual respect. They are viewed critically by uncommitted scholars who are well informed, and are invariably discounted and ridiculed by writers in later ages where there exist more balanced views and less over-riding conviction amongst historians and other commentators who use their talents to serve fashionable causes.


1. Quadrant, January-February 2003.


National Observer No. 56 - Autumn 2003