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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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Whatever else they may be, Asian peoples are overwhelmingly non-Western and, not infrequently, anti-Western to boot. Australia, by contrast, is part of the globe-girdling Anglosphere, still the most dynamic and powerful element w i t h i n Western civilisation. It would be an unmistakable sign of Western weakness were Australia to drift away from its ancient constitutional mooring into the vortex of inter-Asian rivalries. A patriot prince will challenge the ideological hegemony enjoyed by deracinated Australian republicans eager to “bandwagon with rising non-Western civilisations”. 38 In a new world order marked by pervasive conflict between cultures a n d civilisations, i t makes l i t t l e s t r a t e g i c sense for the A u s t r a l i a n people t o renounce their (distinctively Anglo-American) Western identity. Australia is not alone in the world. The Crown can a c t to reinvigorate the ethno-cultural community uniting us with English Canada, New Z e a l a n d, t h e U n i t e d K i n g d o m and, above all, the USA. A patriot prince would crown his reign with everlasting glory by reawakening American citizens to the British roots of their own proudly independent nationhood.

A modern patriot prince, Bolingbroke reminds us, would “deem the union of h i s s u b j e c t s h i s g r e a t e s t a d v a n t a g e ”. A t t h e m o m e n t, t h e f i s s i p a r o u s forces of disunity are in the ascendancy. That is why a Patriot King would be today, as in

the eighteenth century:

“…..the most powerful of all reformers; for he is himself a sort of standing m i r a c l e, s o r a r e l y s e e n a n d s o l i t t l e u n d e r s t o o d t h a t t h e s u r e effect of h i s appearance will be a d m i r a t i o n and love in every honest breast, confusion and t e r r o r to every guilty conscience, but submission and resignation in a l l ”. 39 To a Patriot King, the governments of the Dominions would a p p e a r a s so

many factions inhabiting a common civilisation. Bolingbroke maintained that:

“In whatever light we view the divided s t a t e o f a people, there is none in which these divisions will appear incurable, nor a union of the members of a great community with one another, and with their head, unattainable”. 40 Precisely because nothing can be m o r e u n c o m m o n t h a n a P a t r i o t King, he may be able to accomplish what common sense tells us is improbable or even impossible. Once he succeeds to the throne, nothing less t h a n t h e h e a r t s o f h i s far-flung people “will content such a prince; nor will he think his throne established, till it is established there”. Nowadays Australia is a country whose “people is divided about submission to their prince”. 41 Unity can be restored only when a p a t r i o t prince d e m o n s t r a t e s t h a t allegiance to the B r i t i s h Crown enhances, rather than diminishes, the dignity of Australian citizenship.

One hopes that Bolingbroke figures prominently in t he e duc a t ion of young Prince William. But all of us should heed Bolingbroke’s advice to do everything we can to become the sort of people worthy of a Patriot King. We must prepare ourselves for great changes in the world and in ourselves. Bolingbroke predicted that, after the succession of a Patriot King, the people would remain outwardly the same but “the difference of their sentiments will almost persuade them that they are changed into different beings”. 42 Conclusion T h e a p p e a r a n c e o f a p a t r i o t p r i n c e w o u l d b e a m i r a c l e indeed. But those who p r a y f o r s u c h a d e l i v e r a n c e m u s t n o t n e g l e c t s u c h m e a n s a s are in t h e i r own power “to keep the cause of reason, of virtue and of liberty alive”. The blessing of a p a t r i o t p r i n c e m i g h t i n d e e d “ b e w i t h h e l d f r o m u s ”, but to “deserve a t l e a s t t h a t i t b e g r a n t e d t o u s, l e t u s p r e p a r e t o r e c e i v e i t, t o i m p r o v e i t, a n d to coo p e r a t e w i t h i t ”. 43 Were a patriot prince to campaign in defence of the monarchy, he would be subjected to a raging torrent of criticism and abuse. Yet when a good prince is seen “to suffer w i t h the people, and in some measure for t h e m... m a n y advantages would accrue to him”. For one thing, the cause of the British peoples generally “and his own cause would be made the same by t h e i r common enemies”. 44 What is the nature of that cause? In short, a patriot prince will call forth a spirit of resistance to both managerial statism and the


universalism of t h e c a p i t a l i s t marketplace. He will do everything in his power to civilise those too often wild and amoral forces. But, unlike the long-awaited Australian republic, the appearance of t h e P a t r i o t King is not inevitable. Indeed, only a people whose lost liberties are restored to memory will recognise his coming as an opportunity to reshape their allegedly pre-ordained future.

The tables must be turned on A u s t r a l i a n r e p u b l i c a n s. They aim to corner the market on both cosmopolitan tolerance and national pride. All defenders of t h e m o n a r c h y m u s t t h e r e f o r e c a s t A R M i n a new l i g h t. Behind the progressive face of official republicanism lie the sordid realities of worldly ambition, class privilege and the pursuit of power. Considered in the cold light of class analysis, a republican victory would enthrone the overbearing self-importance a n d ideological zeal of short-sighted provincial élites willing to sacrifice the genetic interests of their own people in return for a mess of postmodernist pottage.

Sociologically speaking, republicans represent the local branch p l a n t managers and bureaucratic nodes of a transnational corporate state system ever more dependent upon the inscrutable workings of the divine economy. Having embraced t h e m a t e r i a l i s t religion of h u m a n i t y, republicans rush to renounce t h e i r h i s t o r i c a l roots and t r a d i t i o n a l allegiances, thereby subverting t h e constitutionalist culture of mixed monarchy. Playing an important supporting role in the m a n a g e r i a l revolution of our t i m e, an all-pervasive, creeping republicanism is steadily deconstructing the fabric of British civilisation.

We no longer publicly call upon God to save the Queen. The ritual absence of t h e m o n a r c h f r o m e v e r y d a y l i f e i s but one more sign t h a t w e a r e n o longer a serious people. Forswearing the faith of our fathers, we surrender our bodies to the state and our souls to the gospel of wealth. In the end, a Patriot King may have to save u s. Remember, though: a King is, indeed, like unto God; 45 he cannot save those who will not save themselves.


1. See the prophetic book of the same title by Lothrop S t o d d a r d, The R i s i n g Tide of Color (New York: Charles Scribners’ Sons, 1920).

2. On the running b a t t l e since the 1960s between “cosmopolitans” a n d “ p a r o c h i a l s ”, see K a t h a r i n e B e t t s, The Great Divide (Sydney: Duffy & Snellgrove, 1999).

3. B O’Brien, The A u s t r a l i a A c t s, in M P E l l i n g h a u s e t al, The Emergence of Australian Law (Sydney: Butterworths, 1989).

4. Bob Birrell, Federation: The Secret Story (Sydney: Duffy & Snellgrove, 2001).

5. Robert Nisbet, T w i l i g h t o f A u t h o r i t y (New York: Oxford University Press, 1975), p. 65.

6. On the m a n a g e r i a l revolution generally, see James B u r n h a m, The Managerial Revolution: What i s Happening in t h e W o r l d (New York: John Day Company, 1941); also, Paul Edward Gottfried, A f t e r L i b e r a l i s m : M a s s Democracy in t h e Managerial S t a t e (Princeton, NJ: Princeton University Press, 1999); and Samuel Francis, P o w e r T r i p, in The Occidental Quarterly (Summer, 2003), Vol 3, No 2, pp. 69-78.

7. JGA Pocock, The Machiavellian Moment: Florentine Political T h o u g h t and t h e Atlantic Republican T r a d i t i o n (Princeton, NJ: Princeton University Press, 1975); Andrew Fraser, T h e S p i r i t o f t h e L a w s : R e p u b l i c a n i s m a n d t h e Unfinished P r o j e c t of Modernity (Toronto: University of Toronto Press, 1990).

8. Donald Harman Akenson, The H i s t o r i o g r a p h y of English-Speaking Canada and the Concept of Diaspora: A Skeptical Appreciation, (1995) 76 Canadian H i s t o r i c a l R e v i e w 377.

9. On computing “genetic distance” between different races and ethnic groups, see Frank Salter, On Genetic Interests: Family, Ethny and Humanity in an A g e o f M a s s M i g r a t i o n (Frankfurt am Main: Peter Lang, 2004).

10. The Hon Justice Michael Kirby, Constitutional Interpretation and Original I n t e n t : A F o r m o f Ancestor Worship, (2002) 24 Melbourne University L a w Review 1.

11. Andrew Fraser, A M a r x f o r t h e M a n a g e r i a l Revolution: Habermas on L a w and Democracy, (2001) 28 Journal of Law and Society 361.

12. S a l t e r, o p c i t, pp. 47,30.

13. Robert Conquest, Bonds and Bureaucratism, in American Outlook, (Spring, 2001);

( ht t p://www.a mer i canout look. or g/i ndex.cfm? fusea ct i on=a r t i cle_det a i l&i d=1130).

14. Alan M a c f a r l a n e, The Origins of English Individualism: The Family, P r o p e r t y a n d t h e S o c i a l Transition (Oxford: Basil Blackwell, 1978); Kevin MacDonald, What Makes Western Culture Unique?, (2002) 2 The Occidental Quarterly; ( http://theoccidentalquarterly.com/vol2no2/km-unique.html ).

15. Viscount Bolingbroke, The I d e a o f a P a t r i o t King, [originally published in 1 7 4 9 ] i n D a v i d A r m i t a g e (ed.), P o l i t i c a l W r i t i n g s ( C a m b r i d g e : C a m b r i d g e University Press, 1997), p 249.

16. Ibid., pp. 221, 234.

–  –  –

“Native title” is an inalienable, communal form of property effectively controlled by an oligarchy, or by an Aboriginal body similarly controlled. Broadly speaking i t includes t r u s t lands granted by S t a t e or federal governments, property purchased by means of t h e L a n d A c q u i s i t i o n Fund, and M a b o -style t i t l e s. Not many of the M a b o variety have a c t u a l l y been established, but l a n d s - r i g h t s enthusiasts usually prefer to concentrate on them, as if other, better and more extensive Aboriginal tenures did not exist. However, let us concentrate here on the fortunes of M a b o title. As always, an understanding of the present demands a review of the past.

In the beginning The c a m p a i g n for M a b o t i t l e – or Brennan-Deane t i t l e, to give credit where credit is due – began eleven years a f t e r a Supreme Court judgment, never appealed, held that no such thing existed. 1 T h e l i t i g a t i o n i n E d d i e M a b o ’ s n a m e began in 1982. For some ten years the c l a i m was shaped, re-shaped and repleaded. One of t h e m a n y c h a r m s of lawyers’ law is t h a t, however much t h e pleadings are re-jigged before t r i a l, the credit of the final version i s conventionally unaffected.

The nominal plaintiffs were inhabitants or former inhabitants of an island in Torres Strait. Their case began as a claim for individual rights, but, by grace o f t h e H i g h C o u r t, i t e n d e d – s o f a r a s m a t t e r s now – in a vague f o r m u l a f o r communal titles for Aborigines, who were never parties to the action.

The High Court rarely conducts trials nowadays, so someone else had to be appointed to hear, organise and assess the evidence. Counsel f o r t h e p l a i n t i f f s wanted it to be the new Federal Court. Ostensibly he preferred its more “flexible” approach to evidence, but it may have been a silent t h o u g h t t h a t t h e r e w a s a better chance of finding an a c t i v i s t, or power-seeking judge in t h a t f o r u m.

However, Chief Justice Gibbs referred the m a t t e r to the Queensland Supreme C o u r t. 2 The hearing was assigned to M a r t i n Moynihan J, who delivered h i s report to the High Court on 16 Novembe r, 19 90.

Moyn iha n so on re ali se d th a t, amon g th e Mel ane sia ns, he was de ali ng wit h “a very di ff ere n t so cie ty and very di ffe re n t re l a t io nshi ps … to wards l and” th an th e ju dge who he a r d th e Abori gin es’ cl a i m in 19 71. He al so fo und ca use to be sc ept ica l, no tin g th a t “E ddie Mabo [ was] … qui te ca pabl e of t a il ori ng hi s st ory to w h a t ever

sh ape he pe rce ive d woul d adv anc e hi s ca use” :

“I was not impressed with the creditability of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self-interest (and m o s t o f his evidence was of t h i s c h a r a c t e r ) unless i t was supported by other creditable evidence … [His] claims … are a curious concoction of fact and f a n t a s y … designed to advance M r Mabo’s cause both in these proceedings and outside them”.

It was not on ly Edd ie’ s evide nce th a t ca ll ed fo r so me gr ain s of sa lt:

“The evidence as to James Rice’s claims concerning Dauar [Island] is to my mind in such an unsatisfactory state that I would not be prepared to a c t on it. It seems that the facts are now largely lost and what we see is part memory, part fabrication or perhaps confabulation and part opportunistic reconstruction”.

But al l th is, and much more, sa nk wit hout t r ace in th e Maso n Hig h Cou rt.

Bre nna n J ex pande d th e in qui ry en ormou sly, re coi li ng fr om th e th ought of di sti ngu ish ing Mel ane sia n fr om Abo ri gin a l cu ltu re. The Mel ane sia ns, app aren tl y, do no t agr ee. In 20 02 th ey de cli ne d to in vi te Mabo’s widow, and surviving plaintiffs in Townsville, to join in the tenth anniversary celebrations of the High Court’s decision. A spokeswoman for the Tor re s St r a i t Devel opmen t Cor por a t i on ex plai ne d: “T hey ne ed to make a ch oice be twee n be ing Abo ri gin es or Tor re s St r a i t Is la nder s”. 3 The Mel ane sia n pl ain t i f fs in Mabo r a ise d no is sue abo u t l and ri ght s fo r Abo ri gin es. The Is la nder s wer e a se t t l ed agr ic ult ural pe opl e, no t no ma dic l ike th e Aus t r a li an t r ibe s. But ju dic ial eyes wer e se t upo n a pl ace in hi sto ry, al tho ugh in fa c t hi sto ry had al rea dy be en made – th e Common weal t h and most St ate s had al rea dy pas sed l aws to re cog nis e Abo ri gin a l l and ri ght s more ef fi cie ntl y, wit h gr eat er ce r t a int y, and at much l ess ex pens e th an Mabo -ty pe l itig a t i on. 4 Thr ee years af ter Mabo the Commonwealth established a L a n d A c q u i s i t i o n Fund and devoted almost $1.5 billion to it, so as to “f il l in th e l egal bl ank ch eque si gne d by th e Hig h Cou r t [ when i t cr eat ed] … ri ght s th a t woul d ot her wise be l i t t le more than ex pres si ons of co nsc ien ce”.5 The rea fte r, in add i t i on to, or in ste a d of us ing th e l and ri ght s Ac ts, Abo ri gin a l or gani s a t ion s co uld pur chas e l and in th e no r m a l way, wit hout di sru p t i ng our l ong- es tabl is hed l aw of re a l pr oper ty.

Justices Mason and Deane built their careers as black-letter lawyers, when that was still the recognised path to professional esteem. But the legal fashions were a-changing, and by 1992 there was more power and fashionable approval to be found in j u d i c i a l “ c r e a t i v i t y ”. T h a t w a s the gospel a t j u d i c i a l g a t h e r i n g s overseas, where Canadian judges enthused about their new bill of rights and its sweeping additions to their legislative powers – so much more interesting than judicial routine of the traditional kind.

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