January 26, Invasion Day - Some Thoughts

Tomorrow is termed by European Australians Australia Day.  But the historically and legally accurate term is Invasion Day.  We should be working today because to declare a holiday on a date that is so contentious reflects poorly on this nation.

The date itself is problematic.  The  great historian Manning Clark, whose magisterial six volume history of Australia is some of the finest prose this nation has produced, observed that the British fleet had cast anchor at Botany Bay by January 20 1788.  Furthermore, they found on 22 January what became Sydney Cove and in fact Phillip named the place Sydney and determined to construct his residence there.

But leaving to one side this curiosity what cannot be denied, and this is why the day is such a shameful date on a our western calendar, is that the British assumption of ownership of this ancient land was in breach of the law at that time.

The consequences for First Nations Australia of this illegality has been catastrophic.  Ethnic cleansing, genocide, systemic racism and other policies designed to ensure that oppression by the europeans of the first and continuing possessors of Australia forever and a day.

It is all very well to say that we are fortunate to have inherited democracy, the rule of law, and stable institutions from the British.  But our justice system and our legislators perpetuate racism every day of the week.  One of the inherited traits of the justice system from the British is that the law is colour blind.  It is a fiction.  How can First Nations Australians have any faith in a legal system that allows the highest incarceration of Indigenous peoples in the world.  The much lauded British legal system is a means of ensuring First Nations Australians remain second class citizens.

The point is that the British invaders in 1788 themselves ignored and deliberately flouted existing legal concepts in claiming this land.

World renowned historian of Australian Indigenous history Henry Reynolds carefully examines the illegality of 1788 in his 2021 book, Truth-Telling (New South Wales Press).

We recall the great judgment of the High Court in 1992 in the Mabo case (a decision that had conservatives fearing they would lose their million dollar pastoral properties and mines).

In Mabo the High Court put to bed the legal fiction of terra nullius. A Latin term meaning that the land was without owners.  It was this concept that was used by the British to ‘justify’ their assuming ownership of this continent.

But as Reynolds rightly observes this claim was, even then, wrong as a matter of law.

For 150 years the British had been making treaties with the Indigenous people of north America.

Jeremy Bentham, the philosopher and jurist, exposed the illegality of the British actions which began in January 1788.

As Reynolds tells us Bentham wrote a pamphlet only 15 years after the fateful planting of the flag on January 26th, in which he set out the case that the legal foundations of the colony of New South Wales were non-existent because there had been no negotiations with the First Nations peoples and no treaties.

The theft of the land by the British was without precedent in 1788 and there was no international law principle to support it.

Flinders University Rowan Nicholson has made the point that even within the 18th and 19th century system, which was ‘European, colonialist and sometimes racist – there was pressure to accord a legal status to the supposedly least “civilised” peoples.’ He points to African chiefs who signed treaties with Henry Morton Stanley along the Congo River.

. As Nicholson observes, ‘The king of the Belgians wanted to be able to exhibit the treaties to rival colonial powers to show he had acquired sovereignty from the chiefs.’

And, as Reynolds writes, remember that property rights were central to English law by the time the invasion of this continent occurred.  The great liberal philosopher John Locke identified the three rights- life, liberty and property.

So let there be no doubt there was no justification in 1788 for the British assuming ‘ownership’ of the eastern half of Australia.  It was a deliberate flouting of legal principles. Therefore it was an invasion.

It is ironic that the conservatives who think that Australia’s commitment to the rule of law is linked to 1788.  Yet these same people are comfortable with the illegal actions of the British in taking possession of this land.  And they are comfortable with the fiction that the law is colour blind and not only that, along with the centre left (ALP governments) in this nation, build more jails to house First Nations Australians.

Perhaps today you might like to reflect on the fact Australia is a a frightened nation.  Hanging onto the coat tails and apron strings of the UK and the United States.  Afraid to recognize that the national day recognizes illegality and invasion. Refusing to even entertain the idea of a First Nations advisory body to the national parliament.

And you should ignore those who say let bygones be bygones.  To do so is to perpetuate the racism and injustice towards First Nations Australians.