There is widespread confusion as to why January 26 was chosen in the first place. A national survey reported in The Age in March 2017 found that while more than seven out of 10 respondents declared Australia Day was important to them, many did not know which event it commemorated. Only 43 per cent correctly identified the first arrival of a First Fleet ship at Sydney Cove.
There is a degree of perversity on display among the passionate defenders of January 26. It made sense in the past for those who wanted to commemorate the founding of Sydney. That was when the decision was made to move the whole expedition from Botany Bay to Sydney Harbour. It makes less sense as a day of national commemoration.
There are two other dates that would be more appropriate. The first is the 20th of the month, when all the ships had arrived in Botany Bay. It was the successful conclusion of a remarkable expedition, bringing a fleet of 11 ships and over 1000 men and women from the other side of the world. It was a significant achievement of logistics and seamanship, but one of British imperial rather than Australian history.
The second date is February 7, when the formal ceremony of annexation was conducted before the whole population. The public commissions were read and, as [marine officer Lieutenant] Watkin Tench explained, the British took “possession of the colony in form”. Once the documents had been read, the officers joined Governor Arthur Phillip “to partake of a cold collation”, at which “many loyal and public toasts were drank in commemoration of the day”.
As officers toasted the formal establishment of New South Wales, the future of relations with the local Aboriginal bands appeared propitious. The governor had good intentions and his instructions suggested he “conciliate their affections” and enjoin “all our subjects to live in amity and kindness with them”.
Things did not turn out the way Tench expected. That had become quite clear by the time he left the colony in December 1791. A disastrous smallpox epidemic ravaged the local bands in April and May of 1789 and then spread outwards across much of south-eastern Australia. Violence increased around the fringes of settlement until, in December 1790, the governor ordered Tench to lead Australia’s first punitive expedition towards Botany Bay and use terror to bring resistance to an end.
Frontier conflict became a permanent feature of Australian life for 150 years. It was predetermined by the fateful decisions made in London before the First Fleet set sail. The documents read on February 7 did two things. They concerned sovereignty and property. The imperial government asserted sovereignty over the eastern half of the continent. It was a vast and audacious claim that would have been found illegitimate in international law. And there were already clearly understood protocols among the European nations about the extension of sovereignty.
What provided the British with a thin cloak of legitimacy was the assumption that no prior sovereignty existed. The First Nations had been judged from afar to have neither government nor laws and customs. And so the British officials turned their back on the tradition of treaty-making that had been alive in North America for 150 years.
It is simply not possible that educated officials were unaware of already deeply entrenched policies concerning the Native Americans. The decision to regard New South Wales as a terra nullius was not the result of forgetfulness or inattention. The likely consequences were understood at the time. Without any means or machinery for negotiation, violence would stalk the land.
An even more egregious decision was made in relation to property. In one apocalyptic moment, all the real estate over half the continent became the property of the Crown. It was an appropriation confirmed in Australian courts for 200 years. It became so central to national life that it was rarely questioned. And it cannot be distinguished from the foundation of British Australia and the commemorations of January 26.
The scale of the expropriation was without precedent, and once again only made sense if it was accepted that the First Nations had never been in actual possession of their homelands and that over vast stretches of land there were no settled inhabitants and that there was neither land law nor tenure.
Everything changed in 1992, when the High Court handed down its judgment in the Mabo case. The judges overthrew 200 years of legal precedent, deciding that before the arrival of the British invaders the First Nations had both settled inhabitants and land law. They were the legitimate owners of their ancestral homelands.
The implication was inescapable. The British had expropriated the land without compensation. It was a land grab almost without precedent. How this expropriation could have happened under the aegis of the common law is hard to explain. Because at the same moment, and by the same legal instruments the land was expropriated, the Aboriginal peoples all over New South Wales became British subjects, so-called beneficiaries of the King’s peace.
Australian judges have often dated the assumption of ownership from either 1786, when Phillip received his first commission, or from the formal annexation on February 7, 1788. Is that when the incorporation occurred? Both at the same time? Or did one precede the other? These seemingly arcane questions matter because they bring us to the much broader question of the sanctity bestowed on private property by the common law.
One of the central themes in the history of the common law was the centuries-long struggle to defend the property of the subject from appropriation by the Crown. Statutes of the 13th and 14th centuries were designed to restrain the arbitrary power of kings to confiscate the property of their subjects.
It is important to remember that New South Wales was regarded as a colony of settlement. British law arrived with the First Fleet. Early legal and administrative decisions made it clear that the prerogative power of the Crown was no more extensive in Sydney than in Britain itself.
So how had the Crown acquired the landed property of First Nations across vast stretches of territory without their permission and without providing compensation? It had been stolen from people who were subjects within the King’s peace. And how and why was this outstanding anomaly allowed to determine what happened to tens of thousands of men, women and children for 200 years? Ultimately it was the responsibility of the British Crown, which made no attempt to protect the First Nations from the inundation of the prerogative.
Another astonishing anomaly that the proponents of January 26 as our national day often assert is that the First Fleet brought with it the rule of law. It is less than obvious how such a claim can be sustained. In 1788, the law was profoundly subverted. Hundreds of years of tradition were overturned. For anyone to lose their property as a result of being incorporated into British society was, as Locke had insisted, too gross an absurdity for any man to own. Do the flag-wavers have any idea what they are urging us to commemorate? Do they not know? Do they care?
If Australia had a founding principle, it was the sanctity of private property. The imperial government had a number of motives when it decided to plant a settlement on the east coast of Australia, but punishment for crimes against property was central to the whole operation. The convicts were wrenched from homeland, community and family, in most cases for theft. Their punishment was designed as a deterrent against future transgression.
‘It is pointless and gratuitous to tell Indigenous Australians to get over it and to look to the future.’
The full force of laws against theft was imposed from the moment the expedition arrived in Sydney. At the end of February 1788, five men were convicted of theft and condemned to death, illustrating that property was more sacrosanct than life itself. The sentences were carried out at public hangings, which the whole convict population was forced to watch. Just three weeks before, half a continent had been declared Crown land in one of the most remarkable acts of plunder in modern times.
There are so many reasons not to commemorate the nation on January 26. Aboriginal and Torres Strait Islander people have made their feelings plain since at least 1938 and continue to do so. It is surely extraordinary that their opposition has been disregarded. And it is not as if they didn’t have a strong case. The arrival in January 1788 did not merely presage disasters that were to follow.
It is pointless and gratuitous to tell Indigenous Australians to get over it and to look to the future. An argument frequently heard in the testy debate about Australia Day is that what happened to the Aboriginal peoples resulted from what was regarded as acceptable behaviour at the time. That is just what happened in the 18th century, the argument runs, and it is pointless now to make judgments using the ideas and sensibility of contem- porary times.
On any measure, the First Nations suffered grievously as a result of the British annexation. They were the victims of profound injustice. Even now, many Australians find it hard to accept that white Australia does, indeed, have a black history. Their desire to commemorate January 26 arises from the felt need to focus on both our British heritage and the ongoing story of successful nation-building. John Howard was fond of saying that our history had a few blemishes. Scott Morrison remarked recently that colonisation did produce “a few scars from some mistakes and things that [we] could have done better”. These comments may have been made in passing, but they are symptomatic of problems that are much more than skin deep.
How are we to explain this singular failure of empathy? Why is the profound injustice visited upon the First Nations not treated with the appropriate gravity? Why continue to commemorate a day that takes the nation back to where it all began? Why have Australian leaders never asked for an apology from the British government or from the Queen herself in the manner pursued by the Māori? And why not suggest that some form of reparation would be appropriate for a land seizure completely at odds with the common law? The apostles of our current Australia Day expect Aboriginal and Torres Strait Islander people to be loyal members of the Australian state and would react strongly against any hint of separatism.
But do they really think they are part of the nation? Are they white Australians’ countrymen and -women? If so, why can’t all Australians identify with them and feel their pain?
An edited extract from Truth-Telling: History, sovereignty and the Uluru Statement by Henry Reynolds, NewSouth, $34.99, available February 2021.
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Henry Reynolds is an Australian historian whose primary work has focused on the frontier conflict between European settlers and Indigenous Australians.
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