Happy Australia Day!

[David]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

[Dave The Man]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

That stuff was happening all around the World. It was almost a Common Thing in those Times

[Mugwump]

.......
At bottom, you either accept that the British settlement of Australia was lawful and legitimate, or it was not. if you do not accept that, then you need to be ready to accept some earth-shattering consequences. .......

Sheesh:

Terra Nulius has been determined by the courts to be wrong that was the legal premise behind colonisation. That was the legal basis for claiming Australia as belonging to the empire

One can accept that the poms came & brought with them their perceived human detrius.

One can accept openly & warmly English civilisation and its benefits

One can also accept that this caused in part murder, displacement of thousands of aborigines whether through war, alcohol, disease and government policy.

However, quite clearly & simply 26 January is not a day that can be celebrated by all Australians especially when it concerns the effects of the people who were here before us.

Having said that this does not mean one has to axiomatically reject things UK and all the positive advantages this has brought.

Change the date to a date all Austrians can celebrate Australia beyond the pommy origins (which should take pride of place too).

To support a change of day to be inclusive of all Australians does not diminish English colonization & the benefits of English colonization. After all, where would we be without toad in a hole, spotted dick and white bread?

In all of this there is a danger that we paint ourselves into a corner. I think of what happened to those poor people with horror. For forty thousand years they lived in a kind of harmony with the land, in control of their lives. Then, one day, the white sails came and they were ravaged, harried, killed and made subject to forces they could not understand and could not resist. It is one small chapter of history's countless nightmares. It could have been worse, had the colonizer been anyone other than the British, but none of us can rejoice in the Aboriginal experience.

In the end, I can see that making 26 January our national day might be an affront to that memory. It is a critical day, from which modern Australia flows, but call it First Fleet day, and make it a celebration /appreciation of what British settlement brought. Australians have far too little understanding of why they are free and rich and how that relates to British settlement, and that might actually improve if we separated it from the flag-waving and beer-goggles of modern Australia Day. I suspect it'd be a matter of time before the SjWs would be trying to swarm first fleet day, but at least then they would have to be honest about their real motives.

Then have another day of atonement and understanding for aboriginal Australia. Call it reconciliation day, if you like. For me, what matters is the idea that modern Australia came from somewhere specific, and that we understand how fortunate we are that it was so. If there is a way to accommodate the sensitivities of aboriginal people within that, then good.

[David]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

That stuff was happening all around the World. It was almost a Common Thing in those Times

Yes, as were torture, slavery and genocide. It may be a statement of fact that the colonisers' own laws permitted such acts (even if they incorrectly applied them in the case of Australia), but that's not exactly a ringing endorsement of their legitimacy.

[HAL]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

They do their own thing.

[think positive]

Just scrap it, you'll never please everyone,

Big Hoe was right, political correctness is a damn disease

[stui magpie]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

It isn't my opinion. Mine is irrelevant in this as yours.

How bout you read the links I posted, and then stand corrected. Again.

[Morrigu]

[partypie]

I spent the weekend visiting museums and beautiful beaches around Denmark and Albany in WA. It was a great way to appreciate our history and environment. I couldn't care less about how and when AustralianDay is celebrated. Sanitising our history is more of a concern

[Pies4shaw]

^ What international law existed in 1788? And what do the words 'conquest' and 'invasion' mean in your opinion that precludes their use in this context?

It isn't my opinion. Mine is irrelevant in this as yours.

How bout you read the links I posted, and then stand corrected. Again.

In 1788, the norms of customary international law acknowledged conquest, cession and "occupation" of practically uninhabited lands as the (potentially relevant) 3 means of acquiring sovereignty.

The High Court could not, of course, at any time since 1903, make a decision as to the "legality" of British sovereignty at that time. Such questions are non-justiciable in domestic courts (that is, they are not capable of being entertained or determined). It should be obvious why - the Court's authority is ultimately derived from that sovereignty and it would be put into an existential dilemma by being called upon to decide whether British sovereignty was lawful. In any event, sovereignty is a political, not legal, fact.

The Court in Mabo 2 neatly avoided determining whether Australia had been invaded by the British by resolutely sticking to the use of "settlement" (that is, the process of that which occurred after the Brits got here), rather than answering the 1788 international law question. Thus, the Court abrogated the doctrine of terra nullius and ruled that the same principles about reception of British property law apply to a "settlement" (irrespective of its more or less violent antecedents) as to a conquest.

That said, of the 3 potentially relevant means of acquiring Australia at the pertinent time, if Australia wasn't (as the High Court held it wasn't) "practically unoccupied" land and it wasn't ceded by treaty (as it plainly wasn't), that leaves only one alternative under the applicable international law of the day - Australia was settled after a conquest and invasion (as, eg, occurred in England on or about 14 October 1066).

So, it may or may not advance your argument but it seems that the British acquired sovereignty under international law over Australia by conquering and invading it. These are not, in a legal sense, controversial propositions and it is really 25 years too late to debate it.

Also, if I might respectfully suggest, when one reads a High Court judgment, it is always advisable to do so in light of the arguments advanced by the various parties - in the authorised reports (that is, the Commonwealth Law Reports) but not on Austlii, those arguments are summarised at the commencement of the case, immediately after the conclusion of the headnote but before the first set of reasons for decision. In our system of law, the courts decide cases between (more or less and with some rather marginal exceptions) the competing submissions that were advanced at trial by counsel.

[stui magpie]

^

Thank you Counsel, I'll cede to your superior knowledge of the law and it's workings.

However, I'm pretty sure that the info I read, not on Austlii, certainly gave the "vibe" that the settlement was considered peaceful (obviously relatively so) and that Conquest and Invasion would have essentially wiped out any claim to native title and changed the application of common law as it now applies.

Possible I may have misinterpreted.

This is the specific piece I was referring to.

http://www.alrc.gov.au/publications/5.% ... 0Debate/se

[watt price tully]

1 January should be Australia day however that ain't gunna work for obvious reasons that is the day of Federation.

26 January should be both: A celebration of our English heritage & remembrance of the invasion.

[Mugwump]

^ I think that's a pragmatic solution WPT, though I think it is unlikely to satisfy the "change the date" folks. I would also support a separate reconciliation holiday in celebration of aboriginal culture. Perhaps surprisingly, in view of my general outlook, I would support offsetting that by cancelling the Queen's birthday holiday, which seems to me a real anachronism. Britain does not have a Queen's birthday holiday, interestingly.

[HAL]

Excuse me, like a sacrificial offering to assuage the British entertainment industry's collective guilt and shame for turning a blind eye to or condoning such behaviour on a widespread basis for the past half-century.

[watt price tully]

.....I would support offsetting that by cancelling the Queen's birthday holiday, which seems to me a real anachronism. Britain does not have a Queen's birthday holiday, interestingly.

God no. In Vic it's the only public holiday between Anzac Day / Easter & late September early October

Then again I'd support a "Harvester Judgement" day in winter.