Tony Abbott would have been wise to avoid settlement question

( I find the  continued colonial  narrative  rather interesting.The legalese in the language  used is fascinating. )

By TONY WRIGHT

Comment

The question of whether the Great South Land was ''settled'' before the coming of convicts and their rum-swilling jailers has, you might have thought, been settled for some time now.

The terribly concerned who work very hard to become outraged at the merest utterance of Prime Minister Tony Abbott - something that is not hard to do, from time to time - have managed to get themselves into a frightful stew over Mr Abbott's excursion into the matter of settlement.

Their sense of affront is overdone, at least in legal terms.

The Prime Minister, you may know, was answering a question about foreign investment at a Melbourne conference on Thursday night.

''Our country is unimaginable without foreign investment,'' Mr Abbott said.

''I guess our country owes its existence to a form of foreign investment by the British government in the then unsettled or, um, scarcely settled, Great South Land.''

It was a mighty clumsy answer, sure enough, equating the dumping of convicts with foreign investment.

It was doubly clumsy of a prime minister who spends a week or two every year in an indigenous community to describe Australia as ''unsettled'' before Europeans arrived.

Even he obviously and instantly recognised he'd blundered into dangerous territory, and managed to exacerbate matters by modifying ''unsettled'' into ''scarcely settled''. Tell that to the Aboriginal people who had been living across the ''Great South Land'' for somewhere upwards of 40,000 years before the coming of Europeans unsettled every tenet of their existence.

The Prime Minister would have been vastly wiser to avoid the settlement question altogether.

But he wasn't as grievously incorrect as his detractors have rushed to claim, at least on legal grounds.

Even the High Court in the Mabo case of 1992, which rejected the idea that Australia had ever been ''terra nullius'' (or land belonging to no one), accepted that Australia became a ''settled'' colony in 1788.

The lead judgment made clear that ''settlement'' of Australia is deemed to mean the arrival of Europeans, though you'd need to be a constitutional lawyer to unravel it.

In reaching the conclusion that ''mere change in sovereignty does not extinguish native title to land'', Justice Gerard Brennan declared the preferable rule ''equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land''.

In short, the indigenous inhabitants of Australia were here before the place became ''a settled colony'', and thus didn't lose their rights over land.

That makes Abbott's comment factually correct in law.

His problem is that he put it arse-about, speaking of pre-settlement Australia as ''unsettled''.

In doing so, he made it possible for his critics to assume he meant uninhabitated. Which would be absurd...if he'd said it or meant it, which he clearly didn't.

The Prime Minister is fortunate only that he didn't use the word conquered.

smh.com.au

http://www.illawarramercury.com.au/story/2396558/tony-abbott-would-have-been-wise-to-avoid-settlement-question/?cs=304