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Upholding the Australian Constitution: The Samuel Griffith Society Proceedings

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Gibbs, Harry --- "Concluding Remarks" [1998] SGSocUphAUCon 15; (1998) 10 Upholding the Australian Constitution 157

Concluding Remarks
Rt Hon Sir Harry Gibbs, GCMG, AC, KBE

We have again cause to be grateful to the contributors of the papers delivered at this Conference; they have as usual made a significant contribution to the discussion of some of the most important constitutional issues of the day. I would not do justice to the speakers if I were to attempt to recapitulate or summarise what they have said, but I shall allow myself the indulgence of commenting very briefly on some of the main issues that have been discussed.

The first of those issues — the question of the possible conversion to a republic — is an unrewarding one. Our constitutional system requires reform in many respects — some of which have been pointed out at this Conference — but the change to a republic is not one of them. It is quite unnecessary to make that change and therefore, as has been well said, it is necessary not to make it.

One aspect, which is sometimes overlooked or discounted, is that it is impossible to foresee all the consequences of change. Two clear examples of that truth have been mentioned at this Conference — the disruptive effect of the attempted constitutional reform in Canada, and the apparent surprise of some judges at the effects given in Wik to their judgments in Mabo. Indeed, it is not mere fantasy to suppose that some of our present social discontents and discord may be traced, at least in part, to the decision in Mabo.

The legislation designed to modify the legal consequences of Wik has been wrongly stigmatised as a racially discriminatory interference with fundamental native rights, whereas in truth some amending legislation was necessary to rectify the anomalies, injustices and uncertainty caused by the Native Title Act 1993, particularly after the decision in Wik. Only time will tell whether the amending legislation recently passed will achieve its aims.

Another issue which, unlike the first, is of critical importance, is the question of preserving and strengthening the Federation. The arguments in favour of maintaining a federal system in Australia put to us by Professor Walker are overwhelming, but they are little understood by the general public, and are apparently incomprehensible to many of the bureaucrats and politicians in Canberra.

A number of speakers have pointed out the way in which our federal system has been grievously weakened, in particular, by the effect given to the external affairs power, which, as presently construed, enables the Commonwealth Parliament to legislate about anything if it can find an international instrument to support the legislation, and by the growing erosion of the taxing power of the States and their increasing need to rely on conditional Commonwealth grants. We must surely agree with the statement of Mr Alan Wood that the need to reinvigorate the Federation is overwhelming.

One of the many incidental symptoms of the decline of the federal system has been the accretion to the Federal Court of jurisdiction that could equally well, or perhaps in some cases better, be exercised by the Supreme Courts of the States.

A further question of principle discussed was the disposition shown by some judges, at least until recently, to give free rein to their reformist tendencies, and to develop the law in reliance on what they conceive to be the fundamental standards acceptable in modern society rather than on legal principles. One of the many examples of this tendency was the way in which some judges have ignored the plain and unambiguous words of the race power, and the history of that power, which shows that the words mean exactly what they say, and have written into the paragraph the unusual and inconvenient qualification that the power can be used only beneficially.

The difficulty about giving effect to the standards accepted by right thinking people is that there is often violent disagreement as to what those standards are. The undemocratic suggestion that judges should remedy the omissions of the legislatures can be answered best in the words of that very distinguished judge Lord Reid, who said, “Where Parliaments fear to tread, it is not for the courts to rush in”.1 The judicial role is not a legislative one.

It remains for me to thank all those who have written papers, or otherwise have contributed to the debate, to thank again those responsible for organising the conference, and thank you all for attending.


1. Shaw v. Director of Public Prosecutions [1961] UKHL 1; (1962) AC 220 at 275.

Appendix I

Occasional Address

Aboriginals and Australian Apologetics

Professor Kenneth Minogue

So-called indigenous peoples have become a rising power in modern politics. They are reported to number about 250 million, and the United Nations is working on a draft declaration of their rights. They are widely scattered over the globe, and constitute a highly miscellaneous set of people, but perhaps the main thing to say about them is that they are tribally organised. Their unity for political purposes lies basically in the fact that they have been conquered or pushed aside, usually but not invariably by Europeans, in the course of the Western takeover of the Americas, Australia, New Zealand, Pacific Islands and other places. Their claim to special rights arises partly from the belief that they are the original inhabitants of the areas in which they are found today, but the active promotion of indigenous peoples as a political concept began with the Black Power movements of the 1960s. They are the conceptual progeny of such ideas as oppression and exploitation.

The result has been that in the politics of the Anglophone countries, indigenous peoples have established themselves, like the victors in wars, as those to whom reparation is owed. They are beneficiaries of changes in the law, and are the recipients of special legal rights. They have even been set up as exemplars of a way of life superior to the hectic industrialism of the West.1 Above all, perhaps, they have become the custodians of a curious kind of moral sentiment among White Europeans, one that requires purging by apology. They deserve more philosophical attention than they have so far received. I want to explore some features of the Aboriginal case in Australia.

I. Points of view

The framework in which the drama of the indigenous has been played out is the answer that Europeans give to the question: What is the significance of tribal peoples? One powerful answer has been the progressive doctrine that Western civilisation is superior to all other ways of life, the end towards which all must converge. This doctrine has in the last generation caused embarrassment as being arrogant and Eurocentric. It has been largely replaced by the relativist doctrine that cultures, like species, all have a unique value, and that sustaining them is a matter of human rights. One implication often drawn from this view is that all judgments are culturally determined, and hence no culture can validly judge another.

The progressive doctrine of superiority stood on several legs. The most obvious was scientific and technological superiority. Another was that the West had a vocation to spread religious truth to the rest of mankind. And a third was the moral conviction that detestation of slavery, belief in human rights, freedom and democracy, rejection of caste systems, of cannibalism and the inferiority of women, along with a variety of other moral convictions, made Western standards the exemplars for mankind. The first leg remains intact, but is by no means uncontested. The second is in intellectual circles regarded as absurd, and replaced by an ecumenical theology in which all religions are merely local variations of a universal respect for the numinous. And the third leg is not only intact but capable of remarkable mutations, as we shall see.

The doctrine that all cultures are equal is a messier intellectual product than the doctrine of progress, partly because nobody really quite believes it, and partly because it requires recourse to a variety of questionable analogical moves. The basic point is, of course, that human beings can probably live satisfying lives in terms of almost any culture they have produced, though in Western terms some (such as the Ik) certainly look thin and horrible, while some social locations in many cultures (most generally, it is often said, of women) are hardly enviable.

What this relativism cannot accommodate is the difference between a culture and a civilisation. To have a merely oral culture and thus to be technologically locked closely into one’s environment necessarily limits one’s point of view. By contrast, civilisations with written records, covering a variety of experiences in terms of different logics of explanation, are unmistakably superior in achieving a large number of effects, and it happens that everybody wants to enjoy these effects. The language of political correctness has rejected such terms as “primitive”, but the realities it covered are constantly before our eyes.

Australia and New Zealand have recently become test beds for these theories. Maori and Aboriginal cultures are often juxtaposed against the modern West on terms of equality. Cultural centres of impressive scope (if one discounts an unreal element of patronising) have been set up to persuade us that tribal ways of life are on all fours with our own practices. Yet when, say, we learn that the Jawoyn tribe in the Northern Territory have been using fire as a “management tool” for thousands of years, we are forced to realise that the Jawoyn, in following their traditions, quite lacked the concept of a “management tool” and the whole, perhaps corrupt, European flexibility of mind that goes with it. That, indeed, is why tribal technology has so limited a range.

Everything to do with Aborigines has thus become a subject of overriding interest in Australian life in a way seldom true in the past. And the main participants in the resulting dialogue can be grouped in three sets.

The first is the great majority of the Australian population, who seldom meet an Aborigine and have till recently given the matter little attention. Most are mildly benevolent, a few might pejoratively be described as somewhat intolerant “rednecks”.

Secondly, we must distinguish within that Australian population an intellectual elite, strong in universities and the media, who are peculiarly sensitive to international changes in moral sensibility.

Third are the Aborigines themselves, perhaps 2 per cent of the Australian population. Some live indistinguishably from other Australians, others remain nomadic and traditional, but in Aboriginal politics, the running is made by those covered by special government programmes, and the community activists who claim to speak for them.

To talk of superiority in this context is to ruffle sensibilities; it is for many people unwarrantably judgmental. Nevertheless, there is no doubt that the incoming Anglo-Celts were superior to the Aborigines in numbers, in firepower, and certainly in the conviction that they had a destiny to spread through the country and civilise it. This was, in many respects, a contest between the ill-matched, and there is nothing morally more unhealthy in human affairs than such a disparity of power. The brutality of the newcomers was compounded by the spread of disease and the heedless destruction of the environmental conditions for a nomadic life. It is to the consequences of this situation that the current power of indigenous peoples responds.

II. What sort of a problem?

The problem of the indigenous peoples is, at first glance, one of how government ought to act. The problem isn’t new. The British government, in its instructions to Captain Phillip in 1788, urged that natives should not be molested.2 The same view was taken by the Colonial Office about Maori in the instructions to Captain Hobson in New Zealand in 1840. In both cases, however, determined settlers bent on making their fortunes were negligent of the welfare of Blacks, who were largely swept aside, if, indeed, they were not raped or killed. Nonetheless, the problem remained, changing its form as Australia matured: what to do about them ?

The instinctive response was to accommodate them to the modern world. Missionaries particularly were concerned to teach them the true faith, along with Western dress codes and some of the skills necessary for modern life. They were to be assimilated. It turned out that this was difficult. Many did not respond because, we might suggest, tribal life is closely regulated by custom, and therefore lacks the individual springs of action necessary in modern life. Custom is all. The Arrarnta (or Aranta) tribe, it seems, does not have words for “please” or “thank you”, presumably because tribal reciprocities are so firmly fixed in place as to allow little room for spontaneity. They are not familiar, we learn, with the either/or distinction.3 These are not differences that will respond to a little education in Western ways.

Not all indigenous peoples have had quite the same experience. Maori, for example, as an aggressive and energetic set of people, took to Christianity so successfully that they were soon creating their own heresies, and exhibited considerable trading initiative.4 The Aborigines, by contrast, often seemed lost in their dream world. In both cases, however, conquest, disease and cultural disparities took their toll, leading to rapid decline. Some Whites in the late nineteenth Century came to the conclusion that each set of people was doomed eventually to die out.

The twentieth Century presents a complex story in which the thesis of Aboriginal disappearance – either by cultural or biological assimilation – disappears. Protection gives way to assimilation, and assimilation to the complex new situation of the late twentieth Century in which the relationship between White and Aboriginal has to be created anew in the context of legal changes and a powerful moral concern by the White population about the failures and brutalities of much of the earlier policies.

None of the current policies is without its critics, or its drawbacks. And its most extreme is the critical view that the whole encounter between Whites and Aboriginals is a mistake. The entire history should never have happened at all. Indigenous peoples ought to have been left undisturbed in their environmental paradise. But this is not only to say that one aspect of the problem – namely Australia and New Zealand – should never have come into existence; it is also to exempt indigenous peoples from the human condition altogether.

III. The moral dimension

The question of policy involves morality: what would be best for the indigenous peoples themselves? It will already be clear that there is no determinate moral answer to that question. And in public policy, the moral question is far from being the only consideration. In any case, what is best for the Aborigines is merely one among the moral elements at stake. When we act, we reveal what we are, or what we think we are. Morally, therefore, we must discard policies that would reveal us to be the sort of people we do not wish to be. To consider indigenous people in moral terms thus raises two distinct questions: firstly, what is best for the Aborigines? Secondly, what polices are morally acceptable to other Australians, as self-conscious moral beings who wish to reveal themselves as rational, considerate, generous, etcetera? It is important to observe that these distinct dimensions of morality will not necessarily generate the same policies.

A simple and familiar example makes this distinction clear. Parents seeking to be kind and considerate sometimes fail to guide or discipline their children when such guidance would be the best thing. That sometimes it is necessary to be cruel to be kind is a well known moral paradox which points up this important split in the moral life. And the distinction is important in this case because it reveals the fact that what we call “morality” is, like all other aspects of human life, subject to misuse or corruption. Hypocrisy is one obvious example, some uses of casuistry illustrate another. But various moral corruptions are common. Moral highmindedness can in families become an instrument of tyranny, or it can be used merely as a way of parading one’s own moral sensibilities.

In Australia, the Aboriginal question has been remarkably moralised, leading at the extreme to the accusation that Australia is guilty of genocide. This is my main concern, but first I must sketch the realities on which this charge is based.

IV. The Aboriginal experience

At a high level of abstraction, we are dealing with a tragedy, classically defined as the encounter of right against right. Two people clashed and one was largely destroyed. But at the moral level, this experience consisted of a myriad of individual and group encounters in which people with guns disposed of people with spears. Many Aborigines were shot, women raped, and they were often treated with the contempt the powerful have for the powerless. For nearly a century, many Aboriginal children who were partly white were taken from their parents, and either fostered or put in orphanages, many run by Christian denominations. Some children no doubt prospered, but there was plenty of abuse and exploitation. These are the “stolen children” of Sir Ronald Wilson’s recent report,5 the episode which above all has provoked the movement towards collective apology from White to Black.

The story is not one of unrelieved gloom. Some of the settlers behaved well towards Aborigines, and the civic assumption that all are equal before the law had not been entirely abandoned. Governor Gipps in 1839 forced a retrial of those involved in the Myall Creek massacre of Aborigines, a particularly nasty example of brutes running amok. Seven Whites were convicted of murder and hanged. In this century, a few notable political actors, including Sir Paul Hasluck, battled against widespread indifference to help the Aborigines. But no one doubts that the overall story is a terrible one, and many thought so at the time. The adoption of half caste children is a more ambiguous case, partly because the circumstances were varied, and partly because modern societies find a variety of reasons for removing children from their parents. Today’s opinion condemns the policy, no doubt rightly, and the colloquial description of “stolen children” builds that condemnation into this name. But the issue is complicated by the fact that no alternative policy seems plausible.

What is it that has made these issues real in Australian politics today, whereas they were little considered in the past? Part of the answer is to be found in the High Court judgments in the Mabo and Wik cases, which raise further questions of justice: namely, the validity of the Anglo-Celtic dispossession of Aborigines in order to build modern Australia. International currents of thought have given a new urgency to these questions. And Sir Ronald Wilson’s report has raised such passions as the demand that the Prime Minister should apologise to the Aboriginal peoples. His refusal to do so did not prevent May 26, 1998 being celebrated (if that is the word) as “National Sorry Day” by some people. But the most dramatic expression of this emerging moral sentiment has been the charge that Australia’s treatment of the Aborigines constitutes a case of genocide.

V. The genocide question

Indigenous peoples in their more extreme moments have a weakness for dramatising their sufferings by invoking the idea of genocide and the experience of the Holocaust. A remarkably intricate, indeed casuistical argument on this issue has been made by Raymond Gaita.6

Professor Gaita agrees that the system of fostering Aboriginal children out of their native surroundings is not to be identified with the Holocaust, which has commonly been taken as the paradigm case of genocide. His delicate conceptual surgery repudiates7 the idea that he is actually defining so complex a thing as genocide. He recognises that it would be absurd to compare the Australian adoption practices with the Holocaust, but he still wants to retain “genocide” as the appropriate term to describe the Australian practice:

“For some time, perhaps until the early fifties and in some States, the absorption program expressed the horrifyingly arrogant belief that some peoples may eliminate from the earth peoples they hold in contempt. Enactment of that arrogance is always an evil, whatever the degree of its brutality, and the concept of genocide makes that perspicuous. The concept reveals how a denigratory racism becomes transformed into an evil of a different and more serious kind when it expresses an intention to rid the earth of people who are the victims of racist contempt”.8

In order to get genocide into the picture, Gaita must (like the U.N. definition of this term) dissociate the concept from the actual killing of a set of people. He agrees that it is a “fact of inestimable moral importance that the murder of Aborigines in pursuit of this policy was unthinkable, even to eugenic theorists”. This is true, he agrees :

“However, it does not show that Australia was not guilty of the same crime that was committed by nations in which mass murder was not only thinkable, but also chosen as the means to realise a genocidal intent”. 9

Remove the uneasy double negatives from this and “Australia” is there in the dock. Gaita has a weakness for litotes, and cancelling out negatives is an important part of breaking through to his meaning.

The philosopher of science Imre Lakatos used to characterise what he called “degenerating research programmes” as using evidence-evading machinery he referred to as “monster barring” and “concept stretching”. By a “monster” he meant any kind of refuting evidence, and the Holocaust functions as a “monster” in Gaita’s argument because it is so remote from Australia’s treatment of the Aborigines as to threaten his indictment. And the concept of genocide has to be stretched to accommodate any policy of assimilation, which Gaita then proceeds to analyse as derived from a single mindset involving racism and contempt.

This argument is not science, of course, but it is also not philosophical. It uses philosophical procedures in the service of a forensic purpose, working away to identify a complex historical passage of events with a concept – but one which he delicately prefers not actually to define. The term “genocide” has on various occasions been used by indigenous spokesmen to refer to all cases where a tribal child is assimilated to European culture, something which would (possibly, but I am not certain, pace Gaita) put the teacher of English on about the same level as the Nazis. There is, therefore, something deeply casuistical (in the pejorative sense) in exploiting such a prefabricated emotional charge.

Professor Gaita is keen to distinguish and reluctant to define, something which makes him a slippery target, but certain defects of his argument can I think be made clear. One of them results from his addiction to the idea of racism. He is a kind of Witchfinder-General of this particular charge, sniffing it out wherever a politician or a political party fails to fall into line with his judgments. It is all done with an apparatus of philosophical detachment which does nothing to conceal the flashes of political animus which surface in the argument. The Coalition gets clobbered, along with those who take a different line on the Demidenko question.10 The basic objection to this ploy is that attributing bad motives to opponents evades the issue, but it is worth making some remarks on an idea that seems inescapable in discussing the Aboriginal question.

“Racism” is the most lethal charge in the current rhetorical armoury. It is accorded the status of explaining all violent acts of persecution. Dogmatism in its use, and a certain insouciance about its meaning, seem justifiable because it expresses a possibly beneficent anxiety that the slightest relaxation of our cultural guard would unleash uncontrollable prejudice on the world, for the psychological model assumed is that the concept and the hatred are logically and causally inseparable. Keeping the idea under control is the only way to inhibit the conduct. The routine invocation of Pauline Hanson in Australian journalism currently seems to serve just this monitory purpose, and attribution of racism to an act or opinion is enough to kill a question stone dead. Since the term is so useful, righteous defenders of social inclusiveness prefer to keep their definitional options open.

Is racism a theory, such as Hitler’s, about the respective biological characteristics of distinct races? Is it the theological belief, once held by the Dutch Reformed Church and others, that Blacks are descended from Ham and divinely punished for the way he treated his father Noah? Is it a sentiment rather than a belief, involving rejection of, or contempt for, or hatred of, or simply unease in the presence of, people recognised as different? The term is in fact used, often with sledgehammer effect, to cover all of these and many other phenomena.

On this complex phenomenon I need make only two comments. The first is that “eugenics”, the theory of improving mankind by breeding for a better race, was before Hitler a widely entertained, even respected theory, commonly found in socialist circles, and that while the vacuousness of the term “race” is now widely recognised, advances in genetic engineering virtually guarantee that new versions of it will continue to surface. So much nonsense is currently talked about genes causing one human defect or another as to make this a sure bet.

The second point is that feeling collectively superior to other people is the commonest of all infirmities of the human mind. Professor Gaita pretty obviously feels profoundly superior to the people he calls “racists”, and he also has a category of “decent people”, which suggests a mob of indecents beyond the argumentative pale so far as he is concerned. In general, we may say that nothing but a pretty heavy dose of the Christian virtue of humility can even begin to check this disposition.

Fortunately, there are so many potential inferiors around that we can usually find pretty harmless outlets for what Thomas Hobbes brilliantly analysed as “vainglory”. Unfortunately, the programme of pacifying the world by railing against racism is so much a failure that xenophobic antipathies seem, if anything, to be increasing rather than diminishing. Among current collectivist absurdities may be counted the fact that the Scots increasingly detest the English, and they have no need to invoke the concept of race in order to understand their own sentiments. The Australian disdain for the Poms could hardly be called racist, but it is not always just a jolly jape. Indeed, under Paul Keating it seemed to be a powerful directive of federal policy.

That many Australians feel superior to Aborigines is undoubtedly true. Whether they construe this sense of superiority in terms of race will depend on what general ideas are current in their environment. These days they might as easily ground it in the concepts of culture, or morality, or they might eschew such abstractions and merely point with contempt or derision to some of the features of Aboriginal life they dislike – the drunkenness of many, the incapacity to manage income, and the squalor in public housing from kinship reciprocities among Aboriginal tribes.

We may agree, indeed, that feeling superior to others is a rather unsophisticated emotion, and those who want to improve the relationship between Aborigines and Australian Whites have sought to transform contempt into understanding by setting up cultural centres, and writing books expounding the view that Aboriginal culture is a remarkable adaptation to its environment and has many characteristics which we ought to admire.11 We may admire the motives and sympathise with that intention, however odd some of the results may be.

We had better recognise, however, that from the no doubt limited perspective of the surfer on the beach, Aborigines are a pretty incompetent lot, who are difficult to help. A great deal of thought has gone into the question of what public policy towards them ought to be, without producing any very successful result. Large numbers of Aborigines live rather miserably on welfare at the margins of country towns, having lost their tribal integrity without gaining much skill in managing the demands of life in the Australian economy. Part of the reason for this may well be the impatience (the “racism”) of the white Australians they encounter, but part of it lies in the very nature of the encounter itself.

In these circumstances, the adoption policies of the various State governments in this Century cannot be regarded as irrational or incomprehensible. If racism is a theory about nature, these policies were in significant respects the opposite of racist, since they assumed that a different “nurture” would rescue at least half-caste children from an upbringing which doomed many to futility and an early death. We recognise that taking children from their parents on this ground is wrong (or “unacceptable”, as the relativists would say), but the idea that it is racist is a piece of denigration which is unnecessary, irrelevant and in some cases false. Currently there is concern about large numbers of children who were similarly removed from poor families by British agencies and sent to live in Australia, New Zealand and Canada. Here too, where race is a marginal issue at best, we find that the activist, problem-solving character of modern Europeans, their search for a kind of improvement, distinctly overreached itself. What should be remembered is that social policy is particularly susceptible to changing fads and fashions, and that all too often such policies operate in the shadows, away from critical appraisal.

VI. The question of apology

If Australians committed genocide, what should they do about it? The answer is that they must wipe the slate clean by an apology, but the very formulation of the question has its problems. Australians? Many Australians will rush to insist that they had nothing at all to do with this policy. Poor fools, they will soon find themselves entangled in responsibility as the result of certain moves in this moral chess-game which are familiar from the paradigm Holocaust case. The direct fault of racist contempt for Aborigines can be switched to one of apathy, and ignorance will not be accepted as a defence. As Professor Krygier remarks in his Boyer Lectures, what we now know makes “it impossible now, if it ever was, to remain both ignorant and innocent. For some forms of ignorance are culpable and so are some forms of innocence”.12 Here then is how “some Australians” can be converted into “Australians”, and all Australians brought within this singular movement of moral emotion.

As ever, Professor Gaita illustrates best how to tighten a hair shirt around your average Australian homme moyen sensuel. There is, he believes, primary guilt attaching to the actors, but also a secondary guilt — arising from the inaction of the ignorant:

“Most Australians did not know the facts contained in Bringing Them Home . . . We did not know because [my italics] we did not care enough. We did not care enough because the humanity of Aborigines was not fully present to our moral faculties. The reasons for that are not different in kind from the reasons why Isdell [sometime Protector of Aborigines in Western Australia] could say that he ‘would not hesitate for one moment to separate any half-caste from its mother’. The racism expressed in both is merely more virulent in the second”.13

Ah, yes! racism again. It seems inescapable, even in Australians who never gave Aborigines a thought.

Reconciliation requires a national apology, and this, no less than the charge of genocide, flows into Australia on currents of international thought. The Prime Minister of Australia has refused to make an official apology (though, like everyone else, he is clear about the moral judgment to be made on much of the treatment of Aborigines), but this did not prevent the festival of national Sorry Day, with its apparatus of sorry books, tearfulness and a minute’s silence. How should we judge this project?

An apology is a relatively low level piece of western manners and morals. It lubricates everyday life. Its commonest use is to deal with some relatively minor offence, which the sufferer often cancels with some such remark as “Don’t mention it”. Where really serious offences have been committed, however, an apology is inappropriate, unless, indeed, it is not positively offensive. For a killer to apologise to the parents of the child he has killed is absurd; the issue goes far beyond an apology, and the implicit demand for forgiveness attaching to an apology is an outrage. The offender’s self-revulsion might well involve remorse and repentance, but these relate the individual to conscience, or perhaps to God. Apologies lubricate the machinery of everyday life, but to invoke them for this kind of offence shows moral insensitivity to the same degree as the idea of a “sorry day” reveals a tin ear in the matter of language.

But who, we may ask again if we continue this line of thought, is being sorry for what? When academics such as Robert Manne, in his columns in The Australian, or Professor Gaita, support the idea of an apology, who is apologising for what? Neither of these enthusiasts for cleaning the moral slate has done anything at all to Aborigines.

One obvious move, as we have seen, is to inflate the concept of responsibility. We become, in one way or another, responsible for all the bad things going on in our society. The Good Samaritan merely happened upon the victim of the robbers, but the duty of the citizens of what has been called a “decent society” is to comb the streets day and night in search of such victims of poverty, racism, bad adoption practices and anything else that becomes a social problem. And the switch, at this point, from “moral” to “social” is highly significant. This view may not quite assume that, if we all became socially or morally hyperactive, we could reliably make society perfect, but it comes close to basing moral responsibility upon the presumption of omnipotence. We might call this the inverted omnipotence move. An assumption of our omnipotence renders us helpless before this moral steamroller.

There is a second way of qualifying the actual innocence of these vicarious undertakers of collective guilt. It consists in saying that, since we take pride in the Australian national heritage, we must in all consistency experience shame for the bad things they did. This is quite an ingenious ploy in the cause of showing that we are all in some sense guilty, but it won’t stand up to a moment’s thought. What is our relationship to our national traditions? What in fact is our national identity? In some ways this is a profound question, but we may limit ourselves to that part of it about which we are reflective at any given time, and the basic point is that it is highly selective, and commonly subject to simplifying abstractions. One might be proud of Australian matiness, without worrying about the fact that some Australians are unfriendly and snobbish. Pride in ancestry is pride in some supposed (and sometimes imaginary) essence. It is quite unaffected by the base acts done by ancestors, because acts are always excludable when one is thinking in terms of essences.

VII. The slide from the moral to the political

An odd feature of these arguments for Australian national guilt is that they come wrapped up in a curious moral and intellectual vanity. Raymond Gaita decorates his Quadrant argument with recording his “bafflement over” the “astonishing silence” of those he describes as “on the right” to engage seriously in argument. Robert Manne tells us that since the publication of the “Stolen Children” Report, “there has been a distant rumble of dissent from the right but not sustained argument”.14 There is, then, both a claim to superior moral and intellectual seriousness combined with a highly political assumption that the lines of disagreement must be between left and right.

When one political tendency – in this case specified merely as “the left” – identifies itself with absolute moral rightness, as in the movement whose arguments we are considering, then we find ourselves in the presence of ideology strictly so called: namely, a mobilising political appeal masquerading as a moral or philosophical truth. The “left” has supposedly nothing less than morality itself. This kind of absolutism is not only false, but politically unconvincing. The modern world is full of political wolves in moral sheep’s clothing. The so-called “ethical investment” movement, for example, is a political lobby passing itself off to gullible people as just ethics, doing the right thing, goodness in action. The spread of such politicised ethics obviously provokes a central question: namely, amid all this conspicuous pseudo-ethics, is Australian society notably less full of cowardice, dishonesty, treachery, avarice and the rest of the vices?

A moral argument about the inescapable guilt of all Australians leads us back to the public world, in which moral arguments cannot be entirely conclusive. For one thing, moral considerations lead in different directions; for another, it is no business of governments to do justice though the heavens fall. Their business is to prevent the heavens falling. But in the case of indigenous apologetics in Australia, we are not dealing with a pure moral issue. For the equation is complex. On the one side, we have a set of largely innocent individuals bent on making an apology for the sins of their collectivity; on the other, a set of people whose claim to an apology rests in large part on the sufferings of their ancestors, and whose demand for an apology is primarily the first move leading on to the receipt of financial compensation. The concrete situation is that morality rapidly slides into economics and politics.

A purely moral discussion, and an understanding in purely moral terms, emphasises many dreadful things done in the past, but also sentimentalises the present. I do not know what the “tariff” (as they horribly say in criminal law) would be for raping, stealing and killing. In other words, terrible things were done to Aborigines, and possibly benefits ought to be given to them now, but there is no way in which these two things can be rationally connected.

It may seem that I am missing the point. The point, some have claimed, is that the apparatus of apology is basically emotional; its point is to bring comfort to pain. If this is true, of course, the moral case falls away and we are into therapeutics. But I suspect that the psychological dynamics are likely to be very different. It may be that Aborigines will be comforted, will put away their resentments, and march confidently into the future. Some may do so, no doubt. But on my reading of human nature, as the hangover from the tearfulness of May 26 wears off, and Aborigines find themselves in much the same condition as before, they are likely to take the apology as a final admission of something they have always known: in the famous words of Xavier Herbert, that all Australians are bastards. The apology proves it. Relations are difficult enough anyway; this is not going to improve them.

My argument is, then, that the hurricane of national self-abasement sweeping over us is a very odd phenomenon in the moral and political world, and it is worth speculating (for it can be no more than that) on what it amounts to.

VIII. The Australian dimension

We are dealing with collective self-accusation, complicated by the fact that the hands that beat the breast are not the hands that committed the offence. This situation is part of a wider tendency in which the critical drive of Western civilisation turns into a kind of rage that human beings, and especially Europeans themselves, should have fallen so far short of perfection.

Australians share in this, but they sometimes exhibit a highly specific form of it. Australia was founded by outcasts from Europe, who might have been expected, having suffered rejection, to have responded by rejecting in turn the evils of (in particular) the Britain from which they came. They might have built a comradely society in the South Pacific, free of the snobberies and inequalities of the old world. Instead, they have created a marvellously successful version of modern Anglophone life, with the usual equipment of conflict and material affluence. The treatment of Aborigines fits easily as a chapter of this indictment.

More generally, one might observe that there is in Australia a striking elite/mass split. Many university-educated Australians disdain the philistinism of the Ocker, and have in the past despaired at the obtuseness of a population which kept returning Menzies to power and refusing to support referenda extending federal powers. The concept of “cringe” as a form of national self-criticism is an example of this propensity. Cultural cringe has now been partnered by Asian cringe.

Many Australians find Australia a dull place. It is prosperous and suburban, and low in Angst. DH Lawrence felt that it had not been irrigated by blood in the way the United States had — a curiously misguided belief to hold less than a decade after Gallipoli. But the reference structure within which the Aboriginal question is considered suggests something like a desire to play out the agonies of more romantic countries. The echo of the Holocaust almost suggests that Australians want skeletons of their own in the cupboard, and the tearfulness of National Sorry Day shows that Australians, always fast learners, have mastered the art of public sentimentality as pioneered in the grief for the death of Princess Diana.

A related feature of this situation is that university educated Australians seem to be abnormally sensitive to moral currents emerging from international organisations. If a U.N. committee declares a right, then the path of virtue has been clarified for us, and the federal Government signs up to it, whatever may be the costs to the Australian Constitution.

IX: A phenomenology of collective apologetics

The French have an expression: Qui s’excuse, s’accuse. In excusing oneself, one points the finger back at oneself. In collective apologetics, we have the reverse: it is precisely by accusing oneself (as part of a collectivity) that one succeeds in excusing oneself (because one has exhibited the appropriate moral sensibility). Others must join in on pain of being revealed as morally obtuse, if not worse.

Morality is not, however, merely a set of rules for doing the right thing, nor is it just the practice of those rules. It is also a domain in which imagination and interests come into play, and it can be used, as we have seen, to produce a variety of effects. It can, in other words, be corrupted, like any human activity. It can be made to subserve quite different purposes. For morality is an abstraction almost inseparable from its context. It is a peculiarly Western abstraction, where it has been detached from custom and religion, in which it floats in most civilisations, and this is partly the reason why morality is, as it were, “spoken” in a variety of idioms.

The Catholic moral idiom is, with us, slightly different from the Protestant. In some cultures, morality is marked by a striking fastidiousness.

“Par delicatesse

J’ai perdu ma vie”.

wrote the French poet. This is a different idiom from that of the Australian, who would sacrifice his life, but not for something as ineffable as delicatesse. Australians tend to have a robust attitude to life, and would do the right thing without fussing. They would tend to correct past errors in action, ambulando as it were, without breast beating. For all the Celtic blather in Australia, there is quite a lot of the English stiff upper lip, and never more so than in deriding the “whingeing” of the Poms.

Australians are not in general much inclined to interfere in the lives of others on the basis of mere good intentions. Most would have read Portrait of a Lady, but would instinctively suspect Ralph Tuchett imposing his good intentions so fatally on Isobel Archer. The specific corruptions of moral scrupulosity do not come naturally to Australians. And that is why the appearance of this curious collective form of moral passion in Australia requires explanation. It is, at the very least, a remarkable cultural phenomenon.

Not that Australia is unique. Canada, New Zealand and the United States exhibit the same symptoms. Like all other states, they began in conquest, and now a conception of justice is being invoked in an effort to cancel out that very fact. Even the basis of that conquest — namely, a superiority of the conquerors over the conquered — is often denied on the ground that all cultures are equal. That argument itself, of course, is part of this same self-accusing culture. The paradox is that the demand for justice, for a cancelling of what has happened since 1788 when the British “invaded” Australia, is, at its logical extreme, a demand for the non-existence of the very people making the demand. Sawing off the branch on which you sit isn’t in it. This is nihilism.

Nor is this implication, namely, that the apologisers themselves ought not really to be there, the only thing paradoxical about the elite view of native peoples. Consider the fact that people who regard their own religion – Christianity – as a set of implausible superstitions, go on to define the religious beliefs of tribal peoples as a “culture” and accord them the most fawning respect.

I suggest that there is something sickly and disoriented about repudiating everything one is, out of allegiance to an abstract doctrine. Let me emphasise that the thing I am criticising is the apologetic interpretation of the Aboriginal experience, and the judgment that it is the only possible response for Australians. There is no disagreement about the moral judgment that should be made about the events in which Aborigines were raped, killed, dispossessed and so on. I have some reservations about the “stolen children” question, but there is no doubt that taking children from unwilling parents and separating them for life is bad. Is the only possible response the kind of collective moral mobilisation demanded?

Again, we must look to our roots. Western civilisation has exhibited over the last few centuries a persisting sense of its own corruption. The French philosophes found the imperfection in kings, priests and aristocrats, Marx in commerce, Hitler in the Jews, and nationalists in a variety of oppressors. And one rising theme in that sequence has been that the evil of the West lies in the very structure of political organisation itself – the fact of sovereign states.

The basic structure of this theory of our corruption is relatively clear because it is very old: the world we inherit is bad, but we, the critics, the rejecters, are, precisely because we are taking the collective guilt on our own shoulders, the remnant who may well save us from a deserved destruction. This has been the mind-set of Gnostics down the ages, and a quite different, though perhaps more familiar form, is the Calvinist doctrine of the Elect.

The question thus becomes: what is the road to election, to salvation? The best clue is which entities are fingered as the agencies of corruption. Others have pointed the finger at capitalists, priests, aristocrats, other races, etcetera, but in this case the guilty party is nothing less than Australia as a state. And that suggests the corresponding basis on which the accusation is made: that of a moral freemasonry, representing humanity against its tribal manifestations in modern political life.

Again, it is the indispensable Gaita who supplies us with the solution. He observes that Senator Herron attacked Mick Dodson, an Aboriginal spokesman, for accusing Australia of genocide at an international conference. Dodson was taken to have been “badmouthing” Australia, a charge which Gaita rebutted by remarking:

“Herron failed to see that an international forum is the obvious place to take an accusation of genocide. It is the international crime par excellence because it is a crime against humanity, an offence against human kind”. 15

In reading this, we learn why Gaita is so keen to pin a genocide rap on Australia: it is because genocide springs the issue out of the domestic into the international realm. In part, his keenness to move the issue into this sphere might be ascribed to the Holocaust model of moral virtue in our century: namely, the admiration for those people who exhibited their moral courage by rejecting their own state and appealing to the international world on the basis of moral conviction.

There are indeed occasions when it becomes one’s duty to appeal beyond the state to a higher court, though they have seldom arisen in Anglo-Saxon liberal democracies in this Century, and some who took this line — such as the Communist agents who thought that the Communist movement was the supreme allegiance in a world of corrupt nation states — made a dire and miserable mistake. Beyond politics and morality there is a higher sphere of decision, studied by Machiavelli and others, in which actions are beyond good and evil, and can only be judged by their consequences. This was the case with reason of state; it is also the case with appeals out of the state which has protected and nurtured us to international bureaucracies. It is perhaps necessary, in desperation, but not to be resorted to lightly.

Internationalism, or what I have elsewhere called “Olympianism”16 is one of the most powerful salvationist movements of our time. Internationality is for many of the educated the last best hope of a better world. But it is no part of my argument to explore these particular illusions.

The mobilisation of collective shame is thus part of a wider concern with internationalising human life, and it has, as a movement, a charming simplicity in that all that it demands, initially, is right opinion. The demands it makes on individuals are no more demanding because the individual’s repentant sentiment functions to put pressure on governments to act.

Kant was pessimistic about the possibilities of building anything straight from mankind’s crooked timber, while Christians wrestle with original sin, but here we have the ideological theory of evil, which attributes all bad things to false doctrines such as racism, consumerism, sexism and so on. To be good requires merely thinking the right thoughts, and one’s orthodoxy may be worn like a peacock’s tail as a proof of righteousness. The universities are full of these ideological peacocks playing politics. Whether they are, as a result, good people, is another question.

X. Conclusion

In returning to the problem of indigenous peoples, we must thus recognise that the problem is ours no less than that of the Aborigines. Apology is no real help to them, for they have their own lives to live and must find ways of coming to terms with their condition. Perhaps we should help them, but only “perhaps” because some of our helping has been in the past, and no doubt will be in the future, self-defeating. Certainly it is the case that saturating indigenous peoples in a mist of self-referential Western sympathy is merely one way in which we use them for the luxury of our own self-regard. There are many cases where doing nothing is harder than joining in approved postures.

Vote of Thanks

During the course of the dinner which followed Professor Minogue’s address, the Hon Peter Coleman delivered a vote of thanks, as follows:

I am probably the only one in this room who went to Sydney University with Ken Minogue. It was the post-War 1940s and Ken was well known as a student journalist. He published everywhere, including in one of those fugitive student newspapers — something called Heresy — set up to combat the neo-fascist oppression of the Vice-Chancellor, the Registrar, and the Yeoman Bedell. Another journalist who published in that newspaper went under the name of Jesus Chutney. That was the ambience.

Then, suddenly, Ken disappeared. Word got around that he had fled to Odessa! Yes, Odessa! This was at the height of the Cold War. Surely he was not a spy! The truth was less romantic, although still remarkable. Having graduated, Ken had combed the waterfront looking for a job, any job, on any vessel that would take him overseas. He had finally found work — as a cabin boy — on a tub heading for the Black Sea.

He didn’t stay in Odessa long, and soon popped up in London, where he was reported to be a leading spirit in the London literary world, and to be publishing short stories in a range of publications with names such as The Star.

Soon he found a niche — almost a home — at the London School of Economics. There was only one problem. Such was the international standing of Sydney University that its B.A. was not considered good enough to justify enrolment for a Master’s degree at the LSE. Ken had to do his Bachelor’s degree all over again. Needless to say, he did it brilliantly.

In due course he was appointed a teacher at the LSE and never looked back. He turned out a series of influential books, beginning with The Liberal Mind in 1961 up to Conservative Realism last year.

He has also made a name as an adviser to governments. It began in the late 1960s after the student riots at the LSE, when Ken presented a paper to a Select Committee of the House of Commons set up to look into these events. The paper became the basis of Ken’s book The Concept of a University.

It was in this capacity as adviser that we have heard him tonight, in his paper on Aboriginals and Australian Apologetics.

We can date fairly precisely when our present preoccupation with indigenous people began. It was about 30 years ago. I remember very vividly my own first brush with the new approach. It was in 1970 at an international conference in Virginia.

In one session an academic, with a light in his eye, stood up to tell us about a new idea whose moment had come. It was an extension of old ideas of equality. We all knew and accepted the once unsettling ideas of equality before God, or equality before the King (the law), or equality of opportunity.

But there was now a new expression of equality that would dominate or at least flourish in the coming era. It was the idea of the equality of prestige of all cultures.

As the speaker developed the idea, you could feel the resistance in the room. Was it not ridiculous to pretend that Greco-Roman culture — which was ours — was to be equal in prestige to the culture of Hottentots or Eskimos or (closer to home) Papuans or Aborigines! But that is what he was telling us.

It was traumatic. We took pride in the glories of Greece, from which we derived our culture and which we wanted to pass on to everyone else, including to indigenous peoples. Western philosophy as a footnote to Plato was our paradigm of culture. Who was the Eskimo Plato?

It was only a few years later that a famous American novelist and Nobel laureate, Saul Bellow, actually asked, with heavy irony: “Who is the Papuan Proust?” Bellow thought he had disposed of the matter. But the public controversy was ferocious. After the critics had, metaphorically, kicked him around the streets for several blocks, Bellow apologised!

This was the new idea we had to learn. It meant more than the sort of exhibitions we began to see in our ethnological museums about Aboriginal medicine, or land management, or even painting. It meant, or was taken to mean, that our Greco-Roman heritage of logic and intellectuality had nothing to offer the Aborigines. Indeed, we had much to learn from their spirituality.

Equality of prestige of all cultures has political consequences. Equality before God mandated the end of slavery. Equality before the King and the law meant that all murderers must hang, whether they were rich or poor, black or white. Equality of opportunity demanded schools for all, including Aborigines (and perhaps sometimes required that Aboriginal children be fostered out to give them a chance in life). So the equality of prestige of all cultures brings us the Waitangi Tribunal in New Zealand, and gives us Mabo and Wik in Australia.

The debates have still a while to run. But we are lucky to have Ken Minogue to guide us through them. I urge everyone to re-read his paper of tonight, but also to read his companion book Waitangi: Morality and Reality. They constitute Ken’s Memorandum of Advice to us and to our governments on policy towards indigenes. He covers all the main issues, but I particularly draw your attention to his conclusions in Waitangi.

There are four of them. He urges a time-limit to negotiations. He opposes constitutional changes that would give permanent and special legal privileges to any section of society. He calls for all indigenous organisations to be self-governing and self-financing. Above all, he asserts the common citizenship — rights and duties, privileges and responsibilities — of all.

These conclusions apply primarily to New Zealand. But they have an obvious Australian point. They may not be the last word, but they are grounded in both Morality and Reality.

Ken Minogue has brought characteristic scholarship, insight and wit to our discussion. It is with great pleasure that I move a vote of thanks to him for doing so.

Sydney, N.S.W.

4 May, 1998


1. A formidable general argument will be found in James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge University Press, 1995. And Andrew Sharp, Justice and the Maori: The Philosophy and Practice of Maori Claims in New Zealand since the 1970s, Auckland University Press, Second Edition, 1997 is a notable piece of moral philosophy arising from one of the most notable cases of indigenous politics.

2. See, for example, Max Griffiths, Aboriginal Affairs: A short History 1788 - 1995, Kangaroo Press, Kenthurst, NSW, 1995, p. 20.

3. Pastor Paul Albrecht, The Nature of Aboriginal Identity in Upholding the Australian Constitution, Proceedings of The Samuel Griffith Society, Volume 9 (1997), p. 165.

4. I have discussed the Maori case of indigenous revival in Waitangi: Morality and Reality, New Zealand Business Roundtable, Wellington, 1998.

5. Bringing Them Home, the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, 1997.

6. Genocide and Pedantry, in Quadrant, July-August, 1997, p. 141; and Genocide: The Holocaust and the Aborigines, in Quadrant, November, 1997, p. 17.

7. Thus on p.20 he hopes that his discussion will identify something fundamental to genocide which will “show why the absorption programmes were sometimes genocidal in a sense which rightly attracts the obloquy the term has acquired through association with more terrible examples”. I have italicized “rightly” here because it seems to signify that “stolen children” and “Holocaust” victims are in fact to be accorded the same response, something which much of his article denies.

8. Gaita, Quadrant, November, 1997, op. cit., p. 21.

9. Ibid, p. 22.

10. Consider, for example: “It is difficult to know how much of the manifest irritation with Jews that surfaced during the Demidenko debate was the expression of anti-Semitism. I believe that little of it was, at least insofar as it was expressed by the intelligentsia. Others, quite reasonably, have thought differently”. (Raymond Gaita, Not Right, in Quadrant, January-February, 1997, p.46). The whole suggestion of the passage, especially the phrase I have italicised, is that racism was roaring away, but Gaita delicately incorporates a posture to indicate that it is not, quite, he who has spoken.

11. See very notably, for example, Geoffrey Blainey, The Triumph of the Nomads.

12. Martin Krygier, Between Fear and Hope: Hybrid Thoughts on Public Values, ABC Books, Sydney, 1997, p. 82.

13. Gaita, Quadrant, July-August, 1997, op.cit., p. 45.

14. Robert Manne, The Rights and Wrongs of an Attack on Stolen Children Report, in The Age, 2 March, 1998. He is concerned in this column to attack Ron Brunton’s Betraying the Victims.

15. Gaita, Quadrant, July-August, 1997, op. cit., p. 44.

16. Olympianism and the Denigration of Nationality, in Claudio Veliz (ed.), The Worth of Nations, Boston University: The University Professors, 1993.

Appendix II

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