HENRY REYNOLDS. Australia Day or dying in a ditch for January 26.

Australia Day divides rather than unites the community which we presume is the key reason for having a national day in the first place.

It is clear that a substantial majority of Australians want to have a national day when they can celebrate both our history and our way of life. Which day is chosen is less important. Even among those who are presently in favour of January 26 many are not sure why that day has been sanctified. But it is equally clear that there is a substantial minority which will fight desperately to retain the status quo despite the inescapable evidence that every year opposition grows. The dissident case has been clearly articulated. But the reasons for clinging so tenaciously to the 26th are less apparent. There is obviously much more at stake than meets the eye. An outsider would say the passion is misplaced, that to continue with a day that is now so divisive is counter- productive. It divides rather than unites the community which we presume is the key reason for having a national day in the first place.

The conservatives, it seems, are willing to die in a ditch for January 26th. They see it as an important battle in the fighting retreat of the Anglo-Australians who fear that the historic ties with the old homeland are withering away. That concern is unexceptional but irritating for the rest of us because it is premised on the idea that uncritical anglophilia is an essential part of Australian patriotism. But even more perplexing is the belief that the most appropriate way to commemorate the historic ties with Britain is to remind us all both about what happened in 1788 and what Britain itself was like at the time.

Some of the defenders of the day seem to think that many of our most valued customs and institutions arrived with and were unpacked by Arthur Phillip, things like the rule of law and the so called Westminster system. But the Britain of the late C18th was governed by a tiny, grossly rich oligarchy of the aristocracy and the landed gentry. The representative institutions had been created to allow the landed elite to share power with the Crown. Less than 3% of the population of England and Wales were represented in the parliament and an even smaller percentage in Scotland. The rule of law meant laws above all drafted to protect the property of the elite from the Crown above and the great bulk of the population below. The convicts, our founding mothers and fathers, had been wrenched from their neighbourhoods, their friends and family and their homeland overwhelmingly for petty theft. Property was more precious in the common law than life itself. And in 1788 Britain was still a major practitioner in and beneficiary of the slave trade. What, we might reasonably ask, do our Anglo-Australians find so appealing in all this? Perhaps when they romanticise C18th Britain they see visions of Gainsborough’s morning walk painted the year before the First Fleet set sail.

But that is only a small part of the infamy which the British brought with them in 1788. Phillip carried in his dispatch case his official instructions, formally read on 7th of February, which contained the prospective death sentence for thousands of Aborigines. The egregious nature of the British behaviour was for so long overlooked it needs some explanation. There was no recognition of either the sovereignty or the property rights of the First Nation over the eastern half of the continent. This departed radically from what had taken place in North America for at least a hundred years. It had no justification whatsoever in the international law of the C18th. In 1791 Jeremy Bentham remarked that the failure to conclude treaties in Australia was a fatal mistake that would never be remedied. Without the capacity to negotiate legal agreements the only resolution available was armed conflict as was seen in Phillip’s decision in December 1791 to send out the first punitive expedition in order ‘ to convince them of our superiority and to infuse an universal terror.’ What a truly terrible portent that was.

Sovereignty was one thing , property was quite another. And here the British behaviour was even more extreme. The Crown expropriated the homelands of the First Nations over a vast area involving people who would not see their first white man for many years to come .Historically this astonishing land grab was explained, if not justified, by the assertion that the Aborigines merely ranged over the land but were never in permanent occupation of any specific place. A specious argument of course and it all fell to pieces in 1992 when in the Mabo judgement the High Court declared that in 1788 the First Nations were both the owners and occupiers of their traditional lands. After that only one interpretation was possible. In 1788 the British Crown expropriated half a continent without any reparation. And the Aborigines had legally become British subjects at precisely the same time they were being robbed. Nothing could be more contrary to the central tenets of the common law which from as far back as Magna Carta had protected the property of the subjects from what was termed the inundation of the prerogative. It is hard to find comparable cases of the outright, instant pillage of private property. Lenin’s expropriation of all property in 1917 might be the closest example or the dispossession of Jewish landowners across many parts of Central Europe in the 1940’s.

One can only wonder how conservative Australians want every year to remind us of these infamous events. They were clearly far from Britain’s best moments. To make matters worse they adopt a pose of moral indignity when increasing numbers of us want to have another day to reflect on our shared history. And it is much more than an issue for the indigenous community. We should all be outraged about what happened at Sydney Cove in that short period between 20th January and the 7th of February. The most charitable interpretation we can make of those culture warriors who are determined to die in a ditch to defend the indefensible is that they don’t really know much about Australian history.

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Henry Reynolds is an eminent Australian historian.

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