Social Commentator

What have I got to apologise for?

I believe this book has its genesis way back in the Keating era. I found the man particularly offensive in his attitude to what I would call the core Australian values, traditions and national identity. My family arrived in Melbourne, Australia in 1857 as unassisted Catholic settlers from Cork, Ireland and have lived and worked here ever since. I was bullied going to the local Catholic, convent school by the children going to the local state school. The city of my birth seemed very homogeneous. It was a comfortable time to live surrounded by the jovial and cheeky, paddymelon faces of old Australia; not like the current prickly and spiky times of political correctness. Coming from a very ordinary background with a very ordinary education, I identified with the Labor party. I took an interest in politics at the time; Communists still stood for parliament and spoke at rallies and I was fascinated by the claims of the communists who spoke of the exploitation of the Australian worker and more particularly, aborigines. All the workers I saw every day and there were many of them, seemed happy enough and on occasion they did strike. I went to school with aboriginal children and I also knew the local South Seas Islander families. As far as I could see nothing was out of place except for the self-evident divide between the boss and the worker. I used to enjoy listening to Mr Menzies’ election speeches by radio as he was constantly heckled by professional agitators. He never resorted to having them evicted but used his wonderful skill at putting them down, which I relished. They would yell, what about the workers and he would reply, you never had it so good and would give some statistical quote to back up his repartee.

Whitlam who I voted for seemed, at the time, persuasive, believable, energetic and competent yet on election he fell upon the body politic of Australia in a frenzy and tore it to bits, smashed it to smithereens. He acted like a junkie gagging for an executive fix. He turned out to be a sophist, a destroyer of the Australian way of life; what was his kink?[1] Gough Whitlam’s handing over of the land to Vincent Lingiari,[2] was a disgraceful kick in the guts to all the white pioneers who had gone before and sacrificed their manhood for the advancement of the nation; imagine Ian Smith or Dr Verwoerd doing such a thing. Whitlam should have been charged with indignité nationale. The impact of Whitlam has been profound and from his election one can trace the downfall of the Australia that I once knew where the serried ranks of Anzac veterans were Aussie to a fault both in look and mind. When it was once comfortable to walk around the place without the gawks from a freshly downloaded shipment of new Australians who prop and yaw, if glanced at even for a moment. To my mind, when Labor had a majority of members with a predominately Irish Catholic background, it stood for a fair go but at all times putting the nation’s interest always at the forefront. The rise of communism, particularly after the second world war, led to a bitter conflict for the control of Labor, most Irish Catholics moved away from Labor while Labor did its best to purge the movement of these members. At the same time, Australia saw an ever-expanding economy that by the mid 1960’s had led to full employment and it would be fair to say that the Australian workers never had it so good. Yet the party was lost in the wildness and tangled in a useless and sterile debate over Vietnam, holding itself out as a hater of all forms of colonialism. Of course, Whitlam went on to release PNG from the colonial grip of Australia thus mocking the Kokoda campaign.

Whitlam always argued he was for the independence of Australia. Patriotism is the last refuge of a scoundrel, and among the reforms he made which broke the back of Australia was dismantling the last drawbridge against the barbarians by the closing off of all routes of appeal from the High Court to the Privy Council. The Privy Council (Appeals from the High Court) Act 1975 marked the final step in the process of excluding appeals to the British Privy Council from decisions of the High Court of Australia. Australia’s nationhood requires that its judicial system should be entirely free from the supervision of the courts of another country.[3] Not so, …the existence of appellate superintendence provides a necessary impetus towards caution. Those who are supervised must always keep in the back of their minds, at least, the possibility that their opinions will be reviewed, reversed and adversely remarked upon.[4]

When the Queen goes which these devils, draped with the flag of our country are calling for with their forked-tongues, then Australia will drift into chaos like all republics. The Queen and the Privy Council are a check and a balance that any major machinery of government requires. They have a restraining effect on the excesses of any government bereft of reason and seeking to overthrow the natural order as Whitlam ultimately tried to do; a Mr Hyde prowling the corridors of power, looking for every last vial of ayes to slake a thirst for wanton legislative profligacy, gone troppo. I remember him well that daunting image of a hectoring wreck of a man, his prodigality hanging from him like the parliamentary stripes of his trousers.

Whitlam made this outlandish and outrageous statement in 1972:

Aborigines—There is one great group of Australians who have been denied their basic rights to the pursuit of happiness, to liberty and indeed to life itself for 180 years – since the very time when Europeans in the New World first proclaimed those rights as inalienable for all mankind. In 1967 we, the people of Australia, by an overwhelming majority imposed upon the Commonwealth the constitutional responsibility for aborigines and Torres Strait Islanders. A Labor Government will over-ride Queensland’s discriminatory laws. To ensure that aborigines are made equal before the law, the Commonwealth will pay all legal costs for aborigines in all proceedings in all courts. We will establish once and for all aborigines’ rights to land and insist that, whatever the law of George III says, a tribe and a race with an identity of centuries – of millennia – is as much entitled to own land as even a proprietary company—legislate to prohibit discrimination on grounds of race, ratify all the relevant United Nations and I.L.O. Conventions for this purpose, and set up conciliation procedures to promote understanding and co-operation between aboriginal and other Australians.[5]

In looking at the above statement, the first point is that Whitlam uses the words aborigines and Australians as if they are interchangeable, having the same meaning. Then in the final declaratory sentence he switches back to saying between aboriginal and other Australians. Even those who might agree with the thrust of my argument would not accept that they are interchangeable and the dissidents most definitely would not. Of course, that is one of my grievances, that aborigines do not accept that they are Australian. This then becomes a matter of definition, of which I will have more to say. Then Whitlam says that aborigines have been denied their basic rights to the pursuit of happiness, to liberty and indeed to life itself for 180 years. He may be right but so have I and my family as Catholics since 1857. Catholic schools received little or nothing in the way of grants or direct aid to further the education of a great group of Australians. Moreover, the statement is a deliberate untruth. The people who made such an outlandish statement[6] continued to keep slaves without a single scruple falling from their waistcoats.

The 1967 referendum gave the Commonwealth the power to make laws pursuant to Section 51, subject to the Constitution, for the peace, order, and good government of the Commonwealth with respect to (xxvi) the people of any race,[7] for whom it is deemed necessary to make special laws. The race power, to my mind is to control and regulate the subject race. Up until the election of Whitlam, Australia had a white Australia policy[8] effectively the country was raceless or monoracial. Post WWII migrants of non-British background were not officially concentrated[9] but did so of their own volition and became visible to some extent as a result of this.[10] The race power was used by the Whitlam Government to positively discriminate in favour of aborigines and Torres Strait Islanders. It is important to keep in mind that Torres Strait Islanders are culturally and genetically Melanesian people, as are the people of Papua New Guinea. They are distinct from the Aboriginal people of the rest of Australia, and are generally referred to separately.[11] The Whitlam Government established schemes whereby aboriginal people and Torres Strait Islanders could obtain housing, loans, emergency accommodation and tertiary education allowances. It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.[12] Ponder this if you will, in the same parliament Kep Enderby, who got the Racial Discrimination Act passed, said fellow parliamentarians would surely agree that all human beings are born free and equal in dignity and rights and that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous and without any justification.[13]

The next step in Whitlam’s profligacy was the introduction of the Racial Discrimination Act. Whitlam had no specific head of power under the Constitution like section 51. What he did here, as he said above, was to use the executive power of the government to ratify all the relevant United Nations and I.L.O. Conventions for this purpose. Now this was a unilateral act done by the Whitlam government purporting to exercise it eternal affairs powers under the Constitution; not seeking the approval of the parliament and certainly not seeking approval from the people. Then legislating to give effect to the conventions in Australian domestic law. Under Whitlam, Australia had gone from a virtually racially neutral community to one where a) any ethnic or racial group could migrate to Australia, b) legislation was enacted to benefit and enhance two specific racial groups and c) the majority, who were born here—Australians, were now to be prosecuted for any offensive behaviour because of race, colour or national or ethnic origin. Australia had gone from being G’day, how ya goin, mate? To salam alaikum or namaste. The original race power should have been seen as merely a power to control and regulate but it has been used to advance and enrich a small ill-defined group in the community which naturally enough has engendered envy and resentment based on a perception that the benefits are undeserved and unearned. To administer and control this twin headed monster, Whitlam created two bureaucratic industries, Aboriginal Affairs and Human Rights. This body is remarkable in that it was set up to protect the government’s favoured and biased racist legislation. It is a law enforcement body not of sworn constables but of political police who operate to control and regulate the majority should they question the merits or fairness of the use of the race power. You often hear the dumber members of the Labor parliamentary party saying Australia has a mixed economy; they mean a private sector, subjected, not just to the vicissitudes of the market but rigorously policed for conformity to government red tape, and a government sector such as the above two, who operate unfettered in La La land. Once you create a demand which Labor did, you get a supply; the growth in numbers and funding for immigration and aborigines has been impressive if not frightening. Hence the need for a code of conduct for the host body (Australians)-the Racial Discrimination Act, a law enforcement agency to prosecute the host body (Australians) for non-compliance-Human Rights Commission, then a cover story to disguise the whole apparatus, which rounds everything off with a policy of multi-culturalism.

Of course, the real irony of this tragedy is, and it is but a small piece of the rubble that Whitlam and his ilk have left behind, the fact that the code of political correctness that is laid out in the Racial Discrimination Act only survived in the High Court when challenged in the case of Koowarta v Bjelke-Petersen[14] by the vote of Mr Justice Lionel Murphy aka Senator Lionel Murphy.[15] Speaking at a legal convention in 1963, where there was discussion of a proposal to create the Federal Court of Australia, Mr E G Whitlam QC, later Prime Minister, said that judges who interpret and apply statutes should be appointed by governments responsible to the parliaments which passed those statutes, and that, on principle, federal judges should interpret and apply federal laws.[16] Harmless enough, but Whitlam being who he was perhaps, equally ominous. Not only must Justice be done; it must also be seen to be done: Murphy was a reprehensible individual of the first water. Whitlam, the mouse that roared; his 1972 speech was caked with pledges of lolly for everyman and his dog which all came tumbling down in a heap of egg shells like Humpty Dumpty on 11 November 1975.

To give some balance to this seemingly unfair criticism of Labor, I turn to Malcolm Fraser. If he had gone to Cambridge and been a little older, I might have suggested he was a sputnik orbiting the Cambridge Five. He had all the hallmarks of the squattocracy but was pink on the inside. For a man who so assiduously dismantled Whitlam’s medibank yet left Whitlam’s race legislation intact; there’s the knavery of the man. However, where Fraser really let the country down was in the introduction and administration of the Lebanese Concession.[17] These issues are too painful to dissect; it’s like cutting up your old faithful dog only to find it riddled with turpitude.

The drover’s dog was elected Prime Minister from 11 March 1983 to 20 December 1991. His contribution to the race debate no doubt was wide and brim full and the merits of it are yet to be seen but in 1989, Bob Hawke cried over the Tiananmen Square massacre and allowed 42,000 Chinese students to stay in Australia. The students subsequently brought in large numbers of family so that the 42,000 swelled to an estimated 100,000, the biggest wave of Chinese migration since the gold rush of the 1850s.[18]

The final calamity of the Egyptian scourge was the redoubtable Paul Keating, Prime Minister from 1991 to 1996. Agitating in a wee corner of the country was a man who wanted a wee piece of land, so it appears, where he could carry on some traditional Melanesian gardening although his domicile was the bright lights of Townsville and he had left the island paradise as a small boy. This scratching about by him, seemed to threaten the then Queensland government and out of an abundance of caution they passed the Queensland Coast Islands Declaratory Act 1985 (Q.) which was thought to put an end to the mumblings of this malcontent. Out of this dream for a yam patch arose a call of, “I was robbed” which believe it or not, the sleeping giant in Canberra heard. He awoke, looked around and in that split second of fate picked up the Racial Discrimination Act 1975 and KO’d Queensland and then asked the plaintiff what was his cause? Mabo [2] was the result. Like the curate’s egg, Mabo [2] was good in parts. You cannot say Mabo [2] is plain sailing; it is not. It is dissentious and rough, it deceives and cogs, and ducks with forensic nods and winks and apish courtesies to legal concepts and texts of doubtful value. A plain lawyer could not partake of the fair without suffering a bilious night of distemper and colic with spectral flashes of fee simple, fee tail, deodands, tenure, and copyholder as well as Boschian images of Australian colonial atrocities pulsating in quick succession. Dawson J, a straight shooter when it came to the principle of stare decisis; gave a sane appraisal of the situation and came to a common-sense decision, no native title. Brennen J held on the weirdest of views that Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Deane and Gaurdon JJ relied upon Brennan J’s legal concept of a radical title, in others words a Clayton’s. However, rather than sticking to the script, launched into an outpouring of colonial atrocities against Australian aborigines when the case involved Murray Island and then added a postscript giving a limped wristed justification for their immoderate views. The evidentiary judge, Moynihan J was restricted to Murray island, he did not hold a hearing into mainland Australia. Reading a few left-wing works appeared to have justified this outburst. Toohey J also relied on Brennan J’s concept of a radical title. He too could not refrain from launching into an uncalled-for attack on Australian settlers. Mason CJ and McHugh J agreed with the reasons for judgment of Brennan J and with the declaration which he proposed. A brief could not stomach too much of Mabo [2] without a firkin of milk of magnesia. The reason the High Court went feral over Mabo [2], no doubt has its genesis in the euphoria of the times but to my mind the difficulty arose in that firstly, appeals from the High Court had been cut off and that meant the court was unsupervised and free to pick up any so called persuasive authorities it saw fit, or to put it this way, as there was an absence of any prior decision of its own or any prior decision of any appellate court in Australia this then left the High Court to define the common law relating to native title for Australia which Whitlam had pursued while in government as best he could. Secondly, the Commonwealth Attorney General did not intervene even though he had a statutory right to intervene in constitutional matters before the High Court: Judiciary Act 1903 (Cth) s 78A.[19] As far as I can see, little or no comment has been devoted to the absence of the federal AG in Mabo [2]. This may be of interest:

Granting what you have said about the need for the Court to consider the generality of the application of the Mabo decision to the mainland of Australia, would you care to express a view as to whether it was justified in pursuing that line in the absence of any representation from either Aboriginals or non-Aboriginals from the mainland of Australia? It appears to me that the Court made that decision and that application in the total absence of any representation from persons greatly affected.

In the Mabo decision, the High Court did not purport to decide any particular claim of native title in respect of any land other than the Murray Islands. What it did was declare certain principles;[20]

Keating kept out of the matter for reasons that one may only speculate about but it meant the court could not sound out the Commonwealth on matters of law or policy. It left the court to make value judgments about matters on which the Commonwealth may have assisted. Although Mabo [2] was directed to how an individual state might extinguish native title by the application of land law in line with the Racial Discrimination Act. No consideration was given to how the Commonwealth may extinguish native title on land held by a state. Obvious sources of power for the Commonwealth are the race power, the defence power and or the external affairs power. However, the real reason in my mind is that it allowed Keating to wake up one morning virginal, totally surprised but more importantly, blameless for the legislative handy work of the High Court. The High Court unshackled from the Privy Council simply made law or did it go further than the ever-present threat of judge made law and act as the legislative arm of government and declare a government policy[21] the law?

Pressure on courts to make law is where the interests now pressing for recognition are covered by the existing body of precepts, but the court believes that social and ethical ideas about their proper accommodation have changed since these precepts were formulated. There is no better example than the decision of the High Court in Mabo v Queensland [No 2] where a majority of the Court held that indigenous title to land survived the colonisation of Australia by the Crown in 1788, notwithstanding that the Privy Council had not accepted that view a century earlier in Cooper v Stuart. The majority in Mabo held that the extinguishment of indigenous rights and interests, based upon the doctrine of terra nullius, was justified by a policy which has no place in the contemporary law of this country. Judges are not in the business of repudiating the past, although sometimes, as Mabo [No 2] and R v L show, they must repudiate rules developed in earlier times when those rules have become out of touch with contemporary notions of justice.[22]

Balanced against this view is the following:At one level, the policy arguments for the High Court’s recognition of native title seem to be overwhelming. The linchpin of the decision was what Brennan J described as the ‘unjust and discriminatory’ refusal of the previous law to ‘recognise the rights and interests in land of the indigenous inhabitants of settled colonies’. Although the judgments devote relatively little time to the policy justification for transforming the common law, it is clear enough that the Court considered that the prior occupation of Aboriginal peoples carried its own moral and legal force, demanding recognition by the common law. There is also a good deal of what Professor Webber describes as ‘the jurisprudence of regret’ in the judgments. This is reflected in the view expressed by Deane and Gaudron JJ that two centuries of oppression and conflict had dispossessed, degraded and devastated the Aboriginal peoples and had left a ‘national legacy of unutterable shame’.

There is no denying the powerful force of this reasoning, which has commanded widespread, although by no means universal acceptance in Australia. The question, however, that the judgments in Mabo do not explicitly address is this: why was it appropriate for the High Court to adopt the doctrine of common law native title two centuries after the commencement of European settlement and in the face of established legal principle to the contrary? It is, after all, one thing to recognise the strong moral claim of aboriginal peoples to native title; it is quite another for the High Court to decide that it, rather than the elected Parliament, should recognise that moral claim.[23]

The Mabo decisions gave rise to considerable controversy. Now if the reader will pause and reflect for a moment, he or she, I hope, will see the gambit of the game played by Whitlam from 1972 when he was elected; a) he closed off the Privy Council, b) imported foreign laws into the domestic law-Racial Discrimination Act 1975, and c) then legislated for Native Title where he could. When the challenges came, as he knew they would he provided the blockers, which allowed the High Court a free hand to pick up and run with his concept of native title. There were of course, Privy Council cases that would have, if followed by the High Court, prevented the Court from holding terra nullius did not a apply to Australian real property or land law such as In re Southern Rhodesia and Cooper v Stuart.

Mabo [2] allowed Keating to deliver his Redfern speech which was nothing more than a diabolical harangue against the pioneers of Australia, a denunciation on a scale only an uncouth and boorish fellow could make who lacked a sound and useful education. He thought the High Court had delivered some monumental victory or a cathartic or messianic revelation. It did nothing of the sort. Moreover, he read the judgment of Deane and Gaurdon JJ as a legal seal of approval for the leftist view of the settlement of Australia which Mabo [2] was not. Deane and Gaurdon JJ had wandered into an area in which they had no business to be. They had heard no evidence on the settlement of Australia and were not sitting as arbiters of the facts.

This is what he said but more importantly, he did not say or warn the electorate that he would introduce the Native Title Act to implement Mabo [2] nationwide:

We need these practical building blocks of change. The Mabo Judgement should be seen as one of these. By doing away with the bizarre conceit that this continent had no owners prior to the settlement of Europeans, Mabo establishes a fundamental truth and lays the basis for justice. It will be much easier to work from that basis than has ever been the case in the past. For that reason alone, we should ignore the isolated outbreaks of hysteria and hostility of the past few months. Mabo is an historic decision – we can make it an historic turning point, the basis of a new relationship between indigenous and non-Aboriginal Australians.[24]

Paul Keating in his election speech for the 1993 Election said the following. Again, he did not mention he would introduce the Native Title Act based on Mabo [2]:

This Government has long spoken of the need to address the historic and continuing injustice done to Australia’s indigenous people. Over the years, a great deal of money has been spent and a great deal of good will expanded, but the Aboriginal and Torres Strait Islander people continue to suffer the consequences of two centuries of injustice, prejudice and neglect. Any Government that I lead will be determined to complete the process of reconciliation Labor has begun, and at last return to the indigenous people of Australia the dignity, social justice, health, opportunity and living standards to which all Australians are entitled. To fail in this is to betray not just the Aboriginal people, but ourselves, all that we profess to believe, everything Australia stands for. We are determined not to fail this time.[25]

He was elected in 1993 and as Prime Minister at 3.38 p.m. on 16 November 1993, he introduced the Native Title Bill inter alia: Today is a milestone. A response to another milestone: The High Court’s decision in the Mabo case. The High Court has determined that Australian law should not, as Justice Brennan said, be frozen in an era of racial discrimination. Its decision in the Mabo case ended the pernicious legal deceit of terra nullius for all of Australia—and for all time. The court described the situation faced by Aboriginal people after European settlement. The court saw a conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal people. They faced deprivation of the religious, cultural and economic sustenance which the land provides and were left as intruders in their own homes.

To deny these basic facts would be to deny history—and no self-respecting democracy can deny its history. To deny these facts would be to deny part of ourselves as Australians. This is not guilt: it is recognising the truth. The truth about the past and, equally, the truth about our contemporary reality. It is not a symptom of guilt to look reality in the eye—it is a symptom of guilt to look away, to deny what is there. But what is worse than guilt, surely, is irresponsibility. To see what is there and not act upon it—that is a symptom of weakness. That is failure.[26]

As I have said his take on the Mabo [2] judgment is a dishonest misreading of the judgment. But to a bully in the throes of kicking his fag, rationality can hardly be expected. Of course, Tom Brown grew-up and gave poor old Flashman his comeuppance. So to, Keating went to the scrapyard.

Mabo [2] did not give sovereignty nor was it retrospective and it only applied to Murray Island. Moreover, it simply said, prior to the arrival of the British, the natives had a land title of some communal type and until and unless specifically ousted it remained on foot. However, the onus of proof was on the claimant. Be that as it may, Labor have displayed the mentality of a sneakthief in this whole sorry saga. The author of this sad story no doubt was Whitlam. No leader of recent times with his level of intellect has ever had to endure years, not only in opposition but forced to endure the dementia of Evatt and Calwell. His over active mind must have plotted and schemed a thousand times as he listened to and suffered the fools about him; and I am sure the 1967 referendum on aborigines caused him to draw all sorts of schemes. Like the imperious stag, he was, his vainglorious antlers got caught in the tangle of political chicanery and thus he was felled by his opponents. Whatever solution is proposed to the aboriginal question then both parties should learn from the above that it must be homegrown and derive from the people and by the people, not imposed by some left-wing view of colonialism. Where a society has had at its core a Judeo-Christian belief system on which the foundations of the society are built and manifested in its laws, and members of that society have acted in good faith in the advancement and furtherance of that society on the basis of those laws, then fundamental changes to those laws which cannot be described as meeting improved conditions but would, if implement, not only destroy an existing principle but in fact introduce a new principle for conducting daily societal activities and where future members of that society are taught that the old concepts were wrong, bad and discriminatory, then such changes must be made by a public vote clearly demonstrating that the majority require these core values to be changed. As I said above, if laws are going to be made on the race power which favour and/or enrich the subject race; they need first of all to define strictly the membership of the race to the satisfaction of the majority of the those excluded who must pay the largess to be distributed to the favoured race.

[1] For an alternative view see Noel Pearson’s eulogy.

[2] Has there been any advancement; look at the Kalkarindji and Dagaragu 2007 Howard intervention.

[3] Second reading Tuesday, 27 May 1975.

[4] MELBOURNE UNIVERSITY LAW STUDENTS’ SOCIETY Sir Anthony Mason Lecture 1996 Friday, 6 September 1996 A F MASON From Trigwell To Teoh, The Hon Justice Michael Kirby AC CMG.

[5] Aborigines, Gough Whitlam, Australian Labor Party Delivered at Blacktown, NSW, November 13th, 1972.

[6] United States Declaration of Independence.

[7] These are the deleted words: other than the aboriginal race in any State.

[8] Immigration Restriction Act 1901.

[9] There were some migrant reception centres for non-English speakers.

[10] Carlton, the traditional ‘Little Italy’ of Melbourne, and Leichhardt, its equivalent in Sydney.

[11] https://en.wikipedia.org/wiki/Torres_Strait_Islanders

[12] This is not a complete list merely an example.

[13] Second reading speech: House of Representatives, 13 February 1975, p. 1.

[14] [1982] HCA 27; narrow majority of four to three, Murphy part of the majority.

[15] As Attorney-General in the Whitlam Government, Senator Lionel Murphy introduced the Racial Discrimination Bill in the Senate on three occasions, November 1973, April 1974 and October 1974 and failed.

[16] (1963) 36 ALJ 308 at 327.

[17] The Australian November 24, 2016 Gerard Henderson.

[18] SMH Children of the revolution December 26, 2003.

[19] Long title: Eddie Mabo and Celuia Mapo Salee and Sam Passi and David Passi and James Rice who bring this action on their own behalf and on behalf of the members of their respective family groups v. The State of Queensland and The Commonwealth of Australia.

[20] Crommelin “Mabo: The Decision and the Debate” Papers on Parliament No. 22, February 1994

[21] A policy that carried with it not only a new legal concept but the condemnation of all those who had acted in good faith on the now defunct principle of terra nullius.

[22] THE AUSTRALIAN BAR ASSOCIATION CONFERENCE, LONDON, ENGLAND MONDAY, 5 JULY 1998 DEMOCRACY AND THE LAW The Hon Justice M H McHugh AC.

[23] Sackville, Ronald — “Why Do Judges Make Law? Some Aspects of Judicial Law Making” [2001] UWSLawRw 5; (2001) 5(1) University of Western Sydney Law Review 59.

[24] Delivered in Redfern Park by Prime Minister Paul Keating, 10 December 1992.

[25] Paul Keating Australian Labor Party Delivered at Bankstown, NSW, February 24th 1993.

[26] HR Hansard Tuesday, 16 November 1993 page 2877.

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Social Commentator

Comment: Malcolm’s choice: Rudd’s UN no-go hurts both men

Bernard Keane of Crikey is talking through his hat. This is not a question of bipartisan support for a well proven and trusted public figure. It is common sense in the face of a man who has proven himself not only incompetent for the job but mentally unstable in holding positions of authority where judgement and tolerance is required. Rudd because of his mental health issues is automatically disqualified for any position of responsibility in the public arena.

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