As Australia moves toward January 26 this year, I do so with a heavier heart than usual. There are a few reasons for this. The history of January 26 is indelibly inked, yet what comes next remains a challenge.
The result of the 2023 Indigenous Voice referendum, where Australia decided Aboriginal people should not be recognized in the Constitution, nor have a say in matters that affect us, has hit many of us hard.
The ongoing promotion of January 26 as a day to “celebrate all the things we love about Australia” serves to minimize the challenges that this moment represents for Aboriginal people and for our non-Indigenous allies.
Everyone can agree January 26 marks the moment that Captain Arthur Phillip set foot on the soil of Sydney Cove and claimed the land of this continent for the British. He did so through an assumption of terra nullius. This was in keeping with 18th century European practices of colonization whereby they justified sovereignty through means of occupation (assumption of terra nullius), cession (treaty), or conquest (military force).
Terra nullius was found much later to be nothing more than a legal fiction. It failed to recognize Aboriginal peoples’ society and relationships with the lands, waters, and skies for what it was: pre-existing sovereignty of Aboriginal and Torres Strait Islander peoples.
We have always known, and the laws of Australia have recognized since 1993, that Australia was not terra nullius. This crucial detail underpins the ongoing challenges of national identity when it comes to January 26.
Many people believe January 26 is the day Australia came into being. It’s not.
Australia was not Australia until the ratification of the 1901 Constitution, which had followed a series of constitutional conventions, the first in 1891. This heralded a new phase in the colonizers’ history, creating a Commonwealth of six colonies under one federal system, based on the British Westminster System.
Aboriginal peoples were not included in the constitutional conventions, nor were any represented in any early Australian Parliament.
Despite this, the new constitution contained two specific clauses pertaining to Aboriginal peoples: Section 51(xxvi) around not being able to make specific laws regarding Aboriginal people; and, notably in this context, Section 127 which excluded Aboriginal people from being counted a part of the Australian population in the national census. All other Australians were “amongst the people” in the Australian Constitution.
A few decades later, the 1938 sesquicentenary saw Aboriginal people bussed in to Sydney from Menindee in far west New South Wales, locked in nearby horse stables, and forced to participate in an inaccurate re-enactment of Phillip’s landing.
On the same day, a historic meeting of the Australian Aborigines League and the Aboriginal Progressive Association was held in Sydney at Australia Hall declaring January 26 a “Day of Mourning” and seeking citizenship rights and freedom for all Aboriginal peoples.
January 26 has only been a national public holiday since 1994. Before then, the date was variously acknowledged as First Landing Day, Anniversary Day, Foundation Day, Survival Day, and the Day of Mourning.
Despite the fact that Aboriginal people were not reported as “amongst the people” in the census, it is known that the Aboriginal population had dropped dramatically from that of 1788. By 1901, an estimated 150,000 Aboriginal people accounted for 4 percent of the total population, estimated to be around 3,788,120.
Only in the 1967 Referendum was Section 127 – excluding the reporting of the numbers of Aboriginal people – repealed, along with an adjustment to Section 51(xxvi), deleting the phrase “other than the aboriginal race.”
There were striking consequences for deciding not to include Aboriginal population data in the national Census, not only constitutional ones – as important as they are. By rendering people invisible, inequity in health, education, rights of free movement, education, health, and more were profound and intergenerational, the effects of which continue. Most jurisdictions held various acts and rights over each Aboriginal child, with periods ranging from separation, segregation, protection, and then assimilation.
Since 1967, the government has been able to measure and report the state of Aboriginal people to the Australian people.
A lot has happened following the 1967 referendum. In 1971, Aboriginal and Torres Strait Islander people were included in Census results for the first time. Communities, advocates and allies worked tirelessly to form the first Aboriginal Medical Service, Aboriginal Legal Aid, Education Consultative Committee, Women’s Groups, and the Land Rights movements. Many of these groups were world first and remain in the hands and control of the community. These groups and others like them provide bespoke services to their local peoples.
Despite the knowledge of the many equity gaps in health, education, and wellbeing, many of these services remain under-resourced, rely on annualized funding, and are not able to fully provide the services their communities need nor plan for programs consistently into the future.
These gaps are exacerbated by the fact many Aboriginal people live far from health, education, and other services, with some having to travel hundreds of kilometers for care. Even today, the life expectancy for Aboriginal people is comparable with the whole of Australian data of the early 1980s. In other words, our key measure of health, life expectancy, remains more than 40 years behind that of other Australians.
Since the Apology to Australia’s Indigenous Peoples offered by then-Prime Minister Kevin Rudd on February 13, 2008, the history of this nation is no longer in dispute. The effects of the original act of Arthur Philip and the Crown are still seen today in health outcomes, incarceration rates, out of home care, criminalization of the effects of intergenerational grief, among others. The Annual Close the Gap reports and commentary still show life disparities across health, employment, home ownership, and educational attainment.
Australia is rich. It has a life expectancy higher than the OECD average, lower preventable mortality, hosts the 12th largest economy in the world, and has some of the highest household income with a place in the top 10 GDP.
The Indigenous Voice referendum was a step toward completing the unfinished business of this land. The ensuing debate saw most agree on the profound disadvantage Aboriginal people and the many injustices faced by people since 1788.
This same debate also saw a significant toxicity in Australian society — we had to ask the 96 percent of people who do not identify as Indigenous about letting us have a say about our own affairs. We asked all Australians to recognize us in the constitution of this land.
Despite nearly half of all Australians being born overseas, or being a child of such parents, Australia still said “No.” Is this an artifact of some sort, where many recent Australians don’t recognize the colonial history of these lands, or of the continuing habitation of this place by Aboriginal people for 60,000-plus years?
A “Yes” vote would have meant so much to us, and have little or no day-to-day effect on the rest of the Australian people. I despair at the lack of generosity, or insight, or knowledge in this decision by the majority of Australia.
Yet, there is a thirst for reconciliation, in some form. But – for me – the outcome of the same referendum shows the underbelly of harm, disadvantage and grievance for all to see. Still, all agree “something” must be done.
For decades, we have heard new governments, departments, research groups, and mainstream peak bodies make promises and get in tune with a new strategy or policy. Many prime ministers over decades “claimed to support Indigenous recognition, but failed to achieve it.”
The idea that the debate around January 26 can be resolved by ignoring the complex history, by not facing the inequalities that have been the result of it, needs to end. Hoping that the ongoing health disparities will resolve over time without implementing the solutions offered by Aboriginal people has proven to be fruitless.
This year, January 26 offers a chance to reflect on who we are as a nation. Aboriginal peoples across the land have always known what it is to be on these ancient lands.
I hope that one of the wealthiest nations on earth can look beyond its blinkers and get it right for Aboriginal people. Listen to Aboriginal people and the community peak bodies that represent so many of us. Don’t water down what these groups are asking for, or the sound solutions they present.
The ongoing promotion of January 26 as a day “celebrate all the things we love about Australia” serves to minimize the challenges that this moment represents for Aboriginal people.
We have a real opportunity to become a good ancestor for those who come after us, as those before have been for us. Right now, I don’t hold much hope – other than hope I am wrong.