Tim Blair


New Criterion



Monday, June 28, 2004

It is strange how major events in intellectual history go unnoticed by almost everyone. The clothing is stripped from some venerated, fondly-held myth, revealing nothing but corruption and ugliness, and yet life goes on as if nothing had changed.

Those whose job it is to observe and assess ideas, the professional intellectuals simply look aside, while hissing denials behind their hands. The reporters and the commentators follow their lead. For a time.

In this respect the reception given to Keith Windschuttle's The Fabrication of Aboriginal History was the exception. Sure, his criticism concerned particular people, some of them still alive and influential, and they responded. The priests and the tribes of the myth being attacked formed up in ranks to defend their heroes. There was little history involved, just a lot of choosing sides. Those who were agnostic about the myth, for the most part, just shut up.

More typical, I suspect, was the silence that greeted Michael Connor's revelations about how Professor Henry Reynolds had fabricated the concept of terra nullius as a doctrine in Australian colonial law. Connor's indictment was published prominently, in The Bulletin, but where was the outraged response from Reynolds? Where were Robert Manne's personal attacks on Connor, and the group stroke-fests of left historians assuring each other that it was just another foul blow struck in the history wars (defined by historian Stuart MacIntyre as the right attacking the left)?

These key ideas, that the British colonial enterprise in Australia was characterised by massacre and denial, and nothing much else, have been enormously influential. If you, or an overseas visitor, look for Australian history in the bookshop at an international air terminal in Australia you will find two sources: Robert Hughes's lurid account of the convict system, The Fatal Shore, and one or several of Henry Reynolds's books on the Australian frontier.

'Terra nullius' was a doctrine accepted as fact by all well-meaning Australians, from senior lawyers to school teachers, not to mention Auntie's communards. Is there a school text or newspaper article to be found today that doesn't reproduce it? The doctrine showed that Australia's early colonists were not only immoral for coming into this land, but also wilfully stupid in denying the prior occupaton of the Aboriginal peoples. Even your unworthy Uncle accepted it as fact. It was, in fact, a crock, a concoction of Henry Reynolds for political purposes, and, in that sense, a raging success.

Still, the Connor revelations were ignored. When I blogged on the subject, after waiting several weeks for Reynolds's response, there was no public debate to form part of. Now, despite continuing revelations about the modus operandi of the High Court's judicial activists, there still isn't.

A Google search on "error nullius" returns references on just seven sites.

And when I awarded Reynolds the inaugural Award for National Defamation, some of you had the cheek to prefer lesser candidates.

And now a most revelatory excuse for Reynolds's invention has come from post-modern Marxist historian, Bain Attwood. Again, it was published in a prominent place, The Australian Financial Review on June 11 (but not on-line), but until Christopher Pearson gave it a run in his blog in The Australian yesterday there had not been a whisper of attention from our academics or commentators.

The gist of Attwood's defence, if you'll permit me, is this: Reynolds in his 1987 book, The Law of the Land fabricated terra nullius in an attempt to counter Justice Blackburn's 1971 finding, in Milirrpum v Nabalco and the Commonwealth, that Aboriginal people had no title to land under contemporary Australian law, and that was reasonable because the law is "a historical narrative" and "one had to overturn this narrative discourse, this act of storytelling or myth-making, by telling another legal story ... Reynolds, like a judge, created something tangible in jurisprudential terms, namely the legal doctrine of terra nullius, so it could be reversed by the law and thus provide the means to tackle the continuing injustice caused by the denial of Aboriginal rights to land".

So far we have just the standard post-modern doctrine of intellectual equivalence. My myth is as good as your history and my version of history is as good as yours, however I arrived at it, and it's all just politics in the end.

The problem is, Reynolds has not himself resorted to the post-modern defence. That was left to Professor Lyndall Ryan, and her "two truths".

Attwood makes a valiant attempt to cast Reynolds's fabrication in nobler terms.
Perhaps he was seeking to divine what was at the core of the law's historical narrative regarding the British rights of possession and reached the conclusion it was something called "the doctrine of terra nullius". This was a brilliant stroke in both politcal and legal terms. However,it is unsatisfactory as a historical argument...
Attwood goes on to define the Reynolds invention as a different kind of history, "juridical history", which appears to mean the kind of historical fantasy of use to those judges who want a rationale for changing the law.

At this point, feel free to laugh or cry, according to your personal preferences.

And so, off Reynolds went to the Western Sahara to find in a 1975 decision of the International Court of Justice, "a brilliant stroke in both political and legal terms", according to Attwood, "but unsatisfactory as a historical argument".

Never mind, "There can be little question this was necessary for a favourable legal outcome in Australia. Most importantly, legal advocates for indigenous rights to land in Australia realised this."

Reynolds didn't stop there.
Having established to his satisfaction that Aboriginal rights to land should have been recognised according to both English comon law and international law, Reynolds moved to argue they had been recognised by the British in the 1830s and 1840s... [however] Most academic historians have rejected this argument.
In fact, according to the historian Mark McKenna, quoted by Attwood, '"Reynolds has overlooked aspects of the history ofthe colonial administration of the frontier which do not suit his conclusions"'

It is a matter of fact that terra nullius played no part in the legal reasoning of the High Court in the Mabo case, the source of current native title law, except in the Court's rejection of it. The great merit of terra nullius, according to Attwood, is the re-interpretation of Australia's history of which it was a useful, if false, part. Reynolds had "argued that bad law and/or white settlers and colonial governments were responsible for the denial of aboriginal rights to alnd rather than law itself. By doing this he left the high moral ground to the court and gave it an opportunity to redeem itself".

The "name of this story", according to Attwood, is terra nullius.

And what is sound national land policy when compared with the need of our courts to be safe on the higher moral ground, defined for them by the intellectuals of our post-modern left?

In case you're feeling ungrateful for this service, Attwood will assure you that "The Law of the Land gave the (colonial) law and nation a new charter and lease of life by providing them with a new story." If you didn't feel the need for a new national 'story' for your country, go wash out your mind.

Certainly, "There can be little doubt... that the Keating Labor government assumed it needed a narrative of this kind in order to persuade public opinion that it was right to apply the High Court's judement regarding the Murray Islands to all of Australia. In legislating for native title, prime minister Paul Keating followed Brennan, Deane and Gaudron in framing the matter in terms of the story of terra nullius... Guided by one of his speechwriters and advisers, the historian Don Watson".

So there is the whole sad story, told as a Keith Windschuttle might have told it, except in Attwood's case, with warm approval.

Not that Attwood is satisfied.
there is now a crying need for another historical approach that that is not only truer to the historical reality of the past but also goes further in redressing the consequences of that past. Histories of the kind Reynolds presented in The Law of the Land are not adequate to the task because they are simplistic
What we need are better-crafted lies, ones you can't see through, on which our ideologies can build the laws and policies we desire.

You wonder how Henry Reynolds can read stuff like this, written by his ideological allies, and fail to either defend himself as a real historian, or confess his post-modern faith. Can he really live with this Attwood judgement
In the Law of the Land, Reynolds does not make it clear what he was doing: juridical history rather than academic history
when academic history, according to Attwood, is just a better class of making it all up, and 'juridical history' is explicitly propaganda?

Can Professor Reynolds allow himself to be described by Bain Attwood as writing a 'history' that is so unhistorical that "in these terms it can be regarded as a lie".

It seems that he can.