Another History War skirmish

I’ve been relying on historian blogger Christopher Sheil to keep us all informed about any new shots in The History Wars. But he’s let me down, possibly too busy perfecting his own unique brand of black is the new white sophistry.

Instead I stumbled on the fact that a new “History Wars” skirmish has broken out by reading Christopher “Pudgy” Pearson’s column In the Weekend Oz. Pearson’s article deals with an earlier article in The Bulletin by Tasmanian historian Michael Connor, which renews the attack on Professor Henry Reynolds, whose “black armband” view of indigenous history has made him a favourite target of the reactionary right. Connor accuses Reynolds of confusing and exaggerating the influence of the international law doctrine of “terra nullius” (almost to the point of fabrication).

Pearson also asserts that another historian, Bain Attwood, has recently published a similar critique of Henry Reynolds’ account of the historical role of the “terra nullius” doctrine (unfortunately not apparently available online), and that Attwood has also debunked Reynolds’ claims about the benevolence of the nineteenth century British Colonial Office:

Attwood ultimately concludes that Reynolds’ juridical history is “simplistic” and says of its black-and-white oppositional account of humane Colonial Office v racist settlers that “most academic historians have rejected this argument”.

Now I don’t have enough background knowledge about these claims to take a position on them (or the time to acquire it), but I notice that there are several historians who occasionally visit the Troppo comment boxes (e.g. “Currency Lad”), and I’d be most interested in their observations.

One specific area of Michael Connor’s article where I do feel somewhat qualified to comment is his observations about the High Court’s alleged misunderstanding of the nature and origin of the “terra nullius” doctrine in its seminal 1992 Mabo decision. Connor claims:

By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds’ version of our history, especially The Law of the Land, underpinned the Mabo judges’ decision-making.

When they “rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”, they were paraphrasing his book and accepting questionable historiography about 1788 (Reynolds’ Law is cited several times). The real legal phrase res nullius, which the Mabo judges should have been familiar with and which could have introduced some nuances into their decision, never appears in their discussions.

The judges and lawyers involved in the Mabo case may not have been historians but they should have known at least one thing about terra nullius. It has something to do with international law and is not part of common law. In his introduction to a collection of legal essays on the Mabo case, Sir Harry Gibbs, a retired chief justice of the High Court, confessed himself puzzled that the court had reportedly overturned terra nullius, which he found “unknown to the common law”.

I don’t know whether Connor is quoting Sir Harry Gibbs out of context, or whether Sir Harry was being deliberately disingenuous, but the proposition that the Mabo Justices didn’t realise terra nullius was an international law concept is just plain nonsense. Anyone interested can read the judgment for themselves, especially paragraphs 28-42 of Brennan J’s leading judgment. Here’s the critical passage (starting at paragraph 32):

… By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown. Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory newly acquired by the Crown.

33. International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant (27) See E. Evatt, “The Acquisition of Territory in Australia and New Zealand” in (1968) Grotian Society Papers, p 16, who mentions only cession and occupation as relevant to the Australasian colonies. The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers (28) Worcester v. Georgia (1832) 6 Pet 515, at pp 543-544 (31 US 350, at p 369), provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organized in a society that was united permanently for political action (29) Lindley, The Acquisition and Government of Backward Territory in International Law, (1926), Chs III and IV. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of “backward peoples” and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest (30) See Lindley, ibid., p 47. Various justifications for the acquisition of sovereignty over the territory of “backward peoples” were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times (31) See Williams, The American Indian in Western Legal Thought, (1990), pp 78ff; and Johnson v. McIntosh (1823) 8 Wheat 543, at p 573 (21 US 240, at p 253). Another justification for the application of the theory of terra nullius to inhabited territory – a justification first advanced by Vattel at the end of the 18th century – was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants (32) Vattel, The Law of Nations (1797), Bk I, pp 100-101. ….

34. The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or “settlement”, to use the term of the common law). Although Blackstone commended the practice of “sending colonies (of settlers) to find out new habitations”, he wrote (34) Commentaries on the Laws of England, 17th ed. (1830), Bk II, ch 1, p 7-

“so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind”.

As we shall see, Blackstone’s misgivings found a resonance in international law after two centuries (35) Advisory Opinion on Western Sahara (1975) 1 ICJR 12. But he was unable to declare any rule by which the laws of England became the laws of a territory which was not a “desert uninhabited” country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius. …

Justice Brennan then quoted and discussed this famous passage from Blackstone, which is central to previous judicial understandings of the law applicable to newly settled/conquered territories:

“Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony”¦But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain unless such as are against the law of God, as in the case of an infidel country.”

Clearly, Justice Brennan wasn’t labouring under any misunderstanding that “terra nullius” was a common law doctrine, as the above passages show. Either Connor hasn’t read Mabo (or hasn’t read it very carefully), or he’s relying on the fact that most of the readers of his Bulletin article won’t have done so, and therefore won’t realise that his claim is arrant nonsense. Either way, it doesn’t do him any credit at all. Maybe that’s why he’s an “honorary research associate” at the University of Tasmania and not a tenured staff member.

My rather jaundiced initial view of Connor is confirmed by a closer look at his Bulletin article. For example, he encases the following passage in quotation marks (see above as well for the context), giving the impression that it’s a quote from the Mabo decision:

“rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”…

However, as far as I can see, those words don’t appear anywhere in any of the Mabo judgments. If Connor had been a leftie like Phillip Adams, Professor Bunyip would have had him hung, drawn and quartered by now for that sort of academic sin.

Connor also says:

Terra nullius became one great anachronism as it was pushed backwards into places it had never been. Henry Reynolds discussed terra nullius and Sir Joseph Banks. Another publication on Mabo from the conservative IPA thinktank informed readers that the Milirrpum v Nabalco judgment in 1971 had “re-affirmed the long-held doctrine that Australia was terra nullius”. The case never mentioned the term.

Why a misstatement by the IPA should be regarded as saying anything at all about judicial understanding of “terra nullius” is not explained by Connor. Moreover, while it’s true that Milirrpum (sometimes known as the “Gove Landrights Case”) didn’t use the expression “terra nullius”, that assertion is both irrelevant and misleading in the context of Connor’s article. First, Blackburn J (the judge in Milirrpum) effectively treated himself as bound by the following (in obiter) passage from the 1889 Privy Council decision of Cooper v Stuart:

The extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class. …

Secondly, Blackburn J also observed that Blackstone’s reference to “desert and uncultivated” territories (see above) “have always been taken to include territory in which live uncivilized inhabitants in a primitive state of society“. In other words, Blackburn J, like Lord Watson in Cooper v Stuart, was referring to Blackstone’s English common law doctrines about the laws applicable in newly-settled territories. He wasn’t dealing with the terra nullius doctrine which, as Justice Brennan explained in Mabo, was the international law doctrine whereby a colonial nation acquired sovereignty in the first place. Blackstone’s observations come into play to determine the content of domestic law once sovereignty is established under international law. Connor’s comments about Milirrpum conflate this critical distinction in a confusing and unhelpful way. Whether he does so deliberately or as a result of legal ignorance is less clear.

I’m not in any sense suggesting that the judicial reasoning in Mabo is (or should be) exempt from criticism. It’s a much-analysed decision, and numerous commentators have advanced well-reasoned critiques of aspects of its reasoning. However, Connor’s article is not among them. I don’t know about his criticisms of Henry Reynolds, but his criticism of Mabo is complete crap. It’s surprising that a reputable journal like the Bulletin should have published it.

PS – I suppose it’s possible that Michael Connor’s Bulletin article is an abridged version of a much longer paper, and that it’s been edited unintelligently by Bulletin staff, thereby removing important qualifications and explanations. That might be the reason why the Bulletin version makes so little sense in several areas. However, that still wouldn’t explain his evident assertion that the Mabo High Court believed that terra nullius was a common law doctrine rather than an international law one. Manifestly that wasn’t the case.

Update – I see Paul Watson has reproduced on his blog an entire journal article he wrote about Milirrpum v Nabalco some years ago. It doesn’t clearly address Michael Connor’s misstatements in The Bulletin, although Paul does observe (at footnote 9) that Blackburn J uses Blackstone’s expression “desert and uncultivated” rather than “terra nullius”.

As I explain above, they’re dealing with two different but related points: terra nullius was an old international law doctrine providing a pseudo-juridical basis for assertion of sovereignty by European colonial powers, whereas Blackstone’s doctrines were mostly directed at the content of domestic law in a new territory once sovereignty had been claimed. Thus, the fact that Blackburn J didn’t mention terra nullius provides no support at all for Connor’s assertion that it was an almost completely unknown concept that Henry Reynolds rescued from obscurity and misused to fashion a new black armband juridical mythology. There was no reason for Blackburn J to deal with terra nullius at all because, as Brennan J explains in Mabo, a national court can’t entertain arguments about the validity of extant sovereignty because its own jurisdiction emanates directly from that sovereign authority. It would be like sawing off a tree branch on which you’re currently sitting! Instead, Blackburn J was dealing with the same question as Blackstone: what laws (as to land ownership) actually applied? Thus it isn’t really surprising that Blackburn J didn’t discuss the terra nullius doctrine. The High Court Justices in Mabo only did so by way of background, because they were seeking to provide a reasonably definitive explanation of the juridical and historical background to the momentous decision they knew they were making.

I suppose there’s a very trite sense in which Connor has a point. As explained above, there was no cause for considering the “terra nullius” doctrine in any domestic Australian court (except by way of background information as in Mabo). Nor, until recent years, was there any international forum (like the International Court of Justice) where the legitimacy of British sovereignty claims over Australian territory could have been tested and adjudicated. The international law doctrine of terra nullius was little more than a piece of cynical window-dressing agreed between European colonial powers to lend an utterly unconvincing (to modern eyes) aura of legality to what were in reality no more than naked power grabs. It was never conceived as a legal doctrine that could be argued or adjudicated by any court, so it’s hardly surprising that terra nullius was such an obscure concept. Terra nullius was in that sense an empty, mythical concept. It’s also unlikely, I suspect, that many (if any) colonial administrators or settlers had ever heard of it. But none of these observations invalidate or undermine the High Court’s Mabo decision (as Connor and Pearson appear to believe).

Update 2 – John Quiggin also posts on the Christopher “Pudgy” Pearson article. JQ’s post itself doesn’t say all that much, but his comment box discussion is especially worth reading, because it includes a couple of contributions from Pudgy himself, and a careful comment from Bain Attwood.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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40 Responses to Another History War skirmish

  1. Mark Bahnisch says:

    Ken, Windschuttle – and Connor – are highly specious in their arguments. The thrust of Windschuttle’s thesis in his recent book is that there was no deliberate killing of the indigenous population in Tasmania. Why? Because they were British and thus cultured, civilised etc. His approach to empirical evidence can best be described as decontextualising, unscholarly and nitpicking. Windschuttle is arguing along the same lines as Niall Ferguson – the British Empire was unequivocally a good thing for the colonised – a remarkable discourse to raise its head in the twenty-first century. Windschuttle is not a professional historian – he is not trained as such, and when he was an academic, worked in media studies. Robert Manne’s edited collection ‘Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History’ contains detailed methodological refutations of his argument and methodology. Although I am an academic sociologist, I also have the same qualifications as Windschuttle – an undergrad degree in History – but unlike him, am prepared to take cognisance of the arguments of those who are professionally trained in history and qualified to adjudicated dipsuted points of fact or evidence.

  2. Totally Off Topic but I was just going through the domain’s activity logs, and it is clear that Troppo Armadillo comes under more spam attacks then the rest of the “Uber” blogs combined. I wonder why?

    *We now return to your regular programming*

  3. Ron Mead says:

    “The thrust of Windschuttle’s thesis in his recent book is that there was no deliberate killing of the indigenous population in Tasmania.”

    My reading of Windschuttle’s argument is not that there were no killings. There clearly were and he itemises a considerable number of them. The thrust of his case is that the killings referred to by Ryan and Reynolds were grossly exaggerated for polemical purposes, and that their incidence and intents did not amount to genocide as argued by the historian establishment.

  4. Mark Bahnisch says:

    Ron, I think he argues that the killings were isolated incidents and that the perpretrators were criminals. The evidence shows that they were systemic – and in many cases not just condoned but orchestrated by colonial authorities as a matter of policy. Windschuttle applies a very unrealistic methodology in quibbling with Reynolds etc. – but I think you need to read about this from a professional historian. Try this google search for more info.

  5. Ron Mead says:

    Mark, I can’t believe you’re trotting out Robert Manne as a professional historian to support this thesis. This man’s background is in policical theory, particularly Eastern and Central Europe. He’s in the middle of the polemical argument that considers Windschuttle the arch-villain. It’s like trotting out Mark Latham as your chief witness to support a claim that John Howard is the devil incarnate.

  6. Mark Bahnisch says:

    Ron, if you read my post carefully, what I’m referring to is Robert Manne’s edited book. I’d particularly recommend the chapter by a bloke I went to Uni with, Dr Dirk Moses, who’s a lecturer in History at Sydney Uni and an expert in genocide studies. The link leads to a number of reviews of Manne’s edited book which contain comment by professional historians on the methodological arguments. Manne is indeed a specialist in political theory, but he knows how to round up a crowd of distinguished historians for his book!

    What I’d hope we could do is steer the discussion away from polemics – whether Windschuttle’s or (I’ll concede) Manne’s personally to some degree – and towards an assessment of the validity of Windschuttle’s methodology. It’s not good enough for Windschuttle to assert that Reynolds et al have made errors (still less to impute – on no evidence – bad faith in so doing) without his claims and the reasoning he uses to support them also being open to legitimate accounting and criticism.

  7. Ron Mead says:

    I’m not seeking to continue the arguments about Widschuttle’s book. Nothing new has emerged recently and the whole matter has been aired ad nauseum, including in this blog where a thread some time ago recorded a huge number of comments. The argument about the “qualifications” of the participants has become stalemated and sterile.

    The only reason for my entry into this thread is that Mark made a false accusation – “The thrust of Windschuttle’s thesis in his recent book is that there was no deliberate killing of the indigenous population in Tasmania” that he later heavily qualified. I just think people should be called for such obvious falsehoods. I’ll be charitable towards Mark in saying that he was probably just being careless with his language.

  8. Ken Parish says:

    People,

    I’m not quite sure why this thread has gone off on a tangent of discussing Windschuttle and Aboriginal deaths in Tasmania. I would have thought that topic had been done to death some time ago. Connor’s article (and apparently Bain Attwood’s in the AFR) deals rather with whether Henry Reynolds exaggerated or distorted the importance of the terra nullius doctrine as a self-justificatory explanation deployed by (or even known to) settlers and colonial governments, and whether he exaggerated the benevolence of the British Colonial Office towards Aborigines. I was hoping some readers with more knowledge than me would be able to illuminate those questions, and also hoping to spark some broader debate about the conceptual underpinnings of Mabo. Apparently that’s what Attwood’s article deals with. I’d be most interested in reading it if anyone knows of a copy available online somewhere. I tried to find it in the AFR archives (I’m even prepared to pay for it), but it didn’t come up using the Fairfax search engine.

    Of course, commenters are welcome to discuss whatever they want (within reason), but I frankly couldn’t be less interested ina resumption of the interminable debate about Tasmanian massacres and Keith Windschuttle. I just don’t think there’s anything more to say.

  9. Mark Bahnisch says:

    ok, sorry Ken – enough said on the topic.

  10. Al Bundy says:

    Why a misstatement by the IPA should be regarded as saying anything at all about judicial understanding of “terra nullius” is not explained by Connor.

    Ken, I believe Connor was simply reiterating the general thrust of his article. That is, the meme of terra nullius has progressively worked its way backwards through time, turning up in reference to events in which the concept was never originally employed. In this instance he’s not making a comment on ‘judicial understanding’, he’s talking about the backward chronological passage of the term in Australia’s historiographical pedagogy.

    Your dissertation on Blackburn J proves Connor’s point. The IPA had NO justification for conflating Blackburn J’s binding obligations from Cooper vs Stuart with the term terra nullius in relation to Milirrpum. Connor was simply stating that the term wasn’t employed in 1971, and, by manufacturing the reference to terra nullius, the IPA is adding to the iteration of non-existent precedent which leads to the terra nullius myth.

    As for Connor’s quote:

    When they “rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement”, they were paraphrasing his book and accepting questionable historiography about 1788 (Reynolds’ Law is cited several times). The real legal phrase res nullius, which the Mabo judges should have been familiar with and which could have introduced some nuances into their decision, never appears in their discussions.

    I don’t think this is half so disingenuous as you are suggesting. The passage in the quotation marks is straight out of the Preamble to the Native Title Act 1993. Which says:

    The High Court has…rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European
    settlement

    The drafters of this bit of worldly wisdom were making a direct statement about the Mabo decision, and one that has been quoted widely, and usually without attribution. The statement quoted was a direct and immutable consequence of both the Mabo decision and the lexicon of the Court. Why hang Connor? His point appears to be that the Court was occupied with the concept of terra nullius in relation to white settlement, and that their focus on this principle was led by academic interpretations from the likes of Reynolds in his Law of the Land, in which a term more commonly held to mean ‘uninhabited’ evolved to mean ‘without sovereignty’. Had they not been so influenced, they might have more pragmatically considered res nullius in their deliberation in lieu of Reynolds’ slick interpretation.

    Er, you say

    …a national court can’t entertain arguments about the validity of extant sovereignty because its own jurisdiction emanates directly from that sovereign authority…

    So how come the High Court of Australia feels so comfortable in dismissing a principle on which Australia’s sovereignty plainly rests?

    Background, you reckon? The term terra nullius appears no less than forty times in the judgement handed down. That sounds to me like it was an underlying tenet of the Court’s thinking in Mabo, not a bit of background for context.

  11. Ron Mead says:

    Ken, re your last comment. Sorry to offend here, and I agree with the thrust of your comment, as my earlier comment makes clear. Mine was more a reaction rather than an attempt to re-open that old stale debate. Maybe I should just let some things go through to the ‘keeper.

  12. Ken Parish says:

    So how come the High Court of Australia feels so comfortable in dismissing a principle on which Australia’s sovereignty plainly rests?

    Probably because:
    (1) It was by definition unable to rule on the validity of sovereignty (as I explained and you noted), but had to explain all the background facts and law, of which terra nullius was inescapably part; and

    (2) because in Advisory Opinion on Western
    Sahara (62) (1975) ICJR, the International Court of Justice had in any event rejected the ‘extended terra nullius’ doctrine i.e. the 19th century interpretation of it that claimed land could be terra nullius despite being well-inhabited, as long as the inhabitants were (to European eyes) sufficiently primitive and barbarous.

    What the High Court was avowedly doing was bringing the Australian common law (previously thought to be represented by Blackstone’s formulation quoted earlier) somewhat more into line with contemporary international law and human rights standards concerning the acquisition and effect of sovereignty and the rights of indigenous peoples. Of course, the logical end result of rejecting Blackstone and also embracing the ICJ view of terra nullius is that as a matter of law the British didn’t validly acquire sovereignty by peaceful settlement. Instead they acquired it by conquest. However, the contemporary legal (as opposed to political and rhetorical) consequences of that distinction are fairly minimal, and the question can’t be adjudicated in any Australian court in any event for reasons already explained.

  13. Al Bundy says:

    Mmm,

    Well, the contemporary legal implications might be minimal, but when we bought into the ICC, weren’t we just inviting a plaintiff to make off to The Hague to put forth just such a proposition about terra nullius?

    With the handy mea culpa laid down by the High Court’s dimissal of terra nullius all stated explicitly in the Act 1993, the Commonwealth is going to be out on a bit of legal limb, isn’t it? Any reason why some panel of international jurists is not going to use this against Australia to declare the status of the country as ‘occupied territories’?

    Speculation? Maybe. But it would be a shame if we were to become tangled in such a scenario all thanks to the shonky science of polemical revisionism that passes for historiography in this country.

  14. CurrencyLad says:

    Ken:

    I’m grateful for the mention in your post. Sad to relate, this is not an area for which I have any expertise. Some subjects in historical interpretation can be reasonably entered into with fruitful tendential generalities. Not this one.

    I’ve followed the historiographical battle both in the popular and academic press. But, like you, the totality of this field – its politics, methodology, polemics and real-world legal spin-offs – is something I really want to master in the months and years ahead.

    I will say I admire Reynolds for having the brains and balls to pioneer a whole field and create a purposeful discourse from nothing. I also admire Windshuttle for his stubborn insistence that history shouldn’t be interpreted according to oh-so pat theories that people may happen to find amenable politically. Facts must rule, like it or not. And as I think Mark indicates above (and presumably as Windshuttle himself would accept), critics of the hitherto reigning view of Aboriginal history in Tasmania can and should be critiqued themselves. This is history’s grand dialectic. Maybe truth can never be objective but it should always be the objective.

    It follows that your terra nullius doubts and curiosities are legitimate qeueries and I’ll look forward to reading the real pros if they drop by with some answers.

  15. Ken Parish says:

    [W]hen we bought into the ICC, weren’t we just inviting a plaintiff to make off to The Hague to put forth just such a proposition about terra nullius?

    No, because only nation state signatories (not individuals) can bring actions in the ICJ. Moreover, although I’m not sure whether the ICJ formally recognises concepts of standing (i.e. that a party must have some real, substantive interest), I suspect that in a practical sense it would be expected. It’s difficult to see what other nation could advance such an interest.

    Even if some other nation DID launch an ICJ action, I imagine Australia could and would immediately withdraw from the Court’s jurisdiction in that respect (as it recently did over the East Timor maritime boundary issue).

    Your pointing out that Connor’s quote is from the Preamble to the Native Title Act is worth commenting on. Although it doesn’t absolve Connor of responsibility for creating the misleading impression that it was a quote from Mabo, it may throw some light on Sir Harry Gibbs’s statement on which Connor purports to rely to support his erroneous claim that the High Court didn’t understand the provenance of terra nullius. Gibbs apparently said that the Court had ben “reported” as overthrowing terra nullius, not that it had actually done so. He was probably just being cute and mischievious because, as we’ve seen, various parties including the IPA and the Parliamentary draftsman DID report precisely that. However, as we’ve also seen, the reports are erroneous. Gibbs no doubt understood that and was just being a pedantic smartarse. Connor obviously didn’t, and that led him to make a false claim about the High Court’s understanding of the basis of terra nullius.

  16. Bain Attwood says:

    Those interested in this matter might read my article, ‘The Law of the Land or the law of the land?: History, law and narrative in a settler society’, History Compass, vol. 2, 2004, which is available through inter-library loan from Monash University’s Matheson Library; or the shorter, unreferenced version of this article in the Australian Financial Review, 11 June 2004: ‘Myth, history and the law of the land’.

    Bain Attwood

  17. Norman says:

    If more people had the time [and even more importantly, perhaps, both the necessary analytical skills and a willingness to approach the issues with an open mind] a careful reading of the avaialbale material makes it reasonably clear as to which “historians” have been most involved in doctoring the “evidence” they present.
    Sadly, the academic communities no longer seem willing to require particularly high standards of their peers. An “Anything Goes” mentality pervades much of academia, and why should mediocrity want to challenge that?

  18. Al Bundy says:

    Too right, Norman. I was reading Stuart Macintyre’s spiel in the Australian today, and the fundamental BS of the ‘History Wars’ hit me.

    …The media controversy certainly helped sales, but I am not sure that it assisted informed discussion of the issues.

    The tone of the argument was set by the initial coverage. Narrow and adversarial, it centred on the motives and reputations of the authors; name-calling became a substitute for reasoned argument…

    …This campaign was prosecuted in the public arena but it involved…efforts to discredit the historical profession and other academics with specialist expertise in interpreting the past.

    No. It. Did. Not. The ‘experts’ did that all by themselves without the help of the media. Windschuttle simply turned over a big rock, and what was scuttling about underneath wasn’t pretty.

    I read The Fabrication, and would cheerfully agree that it is polemical. However, by itself, this would have attracted very little attention. Another revisionist! Yawn.

    What caused a sensation was the fact that Windschuttle caught out some of his ‘betters’ (that’s ‘tenured academics’ for some of the credentialists around these parts) cooking the books.

    You see, this wasn’t just about Windschuttle presenting an ‘alternative truth’ based on a different interpretation of the same archives. This was about his claims that massacres had been concocted, numbers wildly exaggerated and newspapers that weren’t even in print quoted from.

    Now, had Manne and company attacked these allegations directly, there would have been no need to get personal. The layman is not quite as stupid as academics give him credit for being. Some of us mouth-breathers can read both sides of an argument, and form an opinion on the basis of the facts presented.

    Macintyre’s obnoxious contempt for the layman is further exemplified when he cites this bit of nauseating moral relativism gone berserk.

    …The title of our book possibly invited such a response. We took the title from a formative argument at Washington’s Smithsonian Museum in 1994 over the Enola Gay exhibition. That episode displayed some distinctive features. It built up into a campaign of denunciation waged by conservative politicians, commentators and media figures. It employed some of the tactics that had been developed over the past decade: it identified intellectuals, the “new class” and “the elites” as enemies of pride in the nation’s past; and it waged a campaign of censorship under the guise of combating “political correctness”…

    For Stuart’s benefit, I might point out that there are only two real possibilities behind ‘that episode’.

    1. The Smithsonian curators were so achingly stupid that they could not guess the amount of controversy and anger such a display would cause (known in academic double-plus-un-good as ‘stimulating debate by challenging existing assumptions’), or

    2. This was a cheap stunt designed to reel in easily riled conservatives for a batch of free publicity.

    Mmmmmmm, when you consider that the text on the display initially said:

    For most Americans, this war was fundamentally different than the one waged against Germany and Italy – it was a war of vengeance. For most Japanese, it was a war to defend their unique culture against Western imperialism.

    I lean towards the first option.

    Oh, and Ken, you enquired what ‘nation’ might have ‘standing’ for a case before the ICJ? This one, perhaps?

    I see this being just the sort of thing the ICJ would pontificate deeply over.

  19. CurrencyLad says:

    From what I know of the Windshuttle debate, I’d be inclined to support Al strongly with all of that. There seem to be two nuclei for two intertwined debates in play here.

    Ken’s treatment of the terra nullius question is powerful and my layman’s instinct (not being a legal historian) would be to now seek a refutation from the other side of the question – which would have to be pretty good.

    The second nucleus is the question of facts in the interpretation of Aboriginal history in Tasmania and, more generally, throughout Australia. I’ve been constantly amazed at how professional historians have ended up criticising Windshuttle on some such basis as this: ‘he is finnicky’ or a fetishiser of facts. As if history was a narrative whose sole purpose was spiritual uplift and historians sharmans of the process.

    There has, to date, been no definitive, fact-driven refutation of Windshuttle. What might historians of historians conclude by this in the future? That Windshuttle’s thesis on the politically motivated derailment of historical scholarship was true; and that despite the mighty work of Reynolds, Macintyre and several other principals in giving form and substance to such a thing as formal Aboriginal History, these figures were themselves fetishists of their own zietgeist-influenced scholarship. Which scholarship they conceived of as having a political purpose within a discourse on justice in the late twentieth century. They were, in other words, men and women of their time who were unable to abandon their generation’s subjectivism and cultural agenda.

    High marks there for scholarly trailblazing and dynamism. Relatively low marks for intellectual humility and adaptability. Now, with respect to terra nullius, it seems to me that if Michael Connor and Christopher Pearson are right, it does not alter the renewed and corrected account provided by Windshuttle. On the contrary, the view that terra nullius was a little known, arcane notion given intellectual CPR by a Fankenstinian Reynolds and then by Justice Brennan et alia in Mabo would tend to render Windshuttle’s non-genocidal view of Australian Aboriginal history even more remarkable for its relatively peaceable nature. To their detractors, this is precisely the intellectual ally-oop being played here by Windshuttle and Connor. (No intention of actual collusion is meant, presumably).

    If Ken is right – and I’ve said that my suspicion is he may well be – then Windshuttle’s thesis is still solid and unassailed. That a conscious awareness and application of terra nullius was actually extant and operative during the phases of Australia’s colonisation may, as the High Court ruled, mean Aborigines were given both unjust terms and treatment; even that the very basis of Australia’s foundation was built on something far worse than a Manhattanite sham.

    But it does not alter Windshuttle’s arguments about the way in which Aborigines were treated. (Which would remain, in any case, shameful and disgraceful). Ironically, this is because the hitherto prevalent view of Aboriginal extermination-as-policy was so exaggerated over the years that a more realistic, fact-driven treatment of the actions of British and colonial authorities (and settlers) would imply that – notwithstanding the corruption of their own legal doctrine – they did rather better than most historians have hitherto believed.

    Thus, the corruption of facts has founded a bogus branch of development in the discipline of history; as also, the corruption of a legal doctrine, ab initio, corrupted the linear development of sovereignty, justice and land law with respect to Aborigines in the Australian legal polity.

    So, our bemused historiographers of the future might say, those who contrived to boost the numbers and the bloodiness in Settlement History were actually responsible, in part, for restoring the fact of terra nullius to its place within an understanding of Australia’s foundation. (If only, alas, retrospectively and therefore by way of making amends).

    This was then counterbalanced by historians with a comparatively greater and more rigorous regard for the facts of Aboriginal history vis-a-vis settlement. It’s up to Windshuttle to spell out the facts on terra nullius, as they apply to his future volumes, lest he himself be accused of ignoring the truth for politics’ sake.

    Now I’ve commented on something I said I knew little about! And, my Lord, I’m sure it shows.

    Professionals: Tora, Tora, Tora!

  20. Mark Bahnisch says:

    CL, there has been a fact-driven refutation of Windschuttle. Many, in fact. There was a conference at the Australian Museum at which he spoke, numerous reviews and the essays collected in Manne’s book which I referred to above.

  21. CurrencyLad says:

    Mark:

    What’s your opinion of how differing views of terra nullius interact historiographically with Windshshuttle’s work and that of his critics? Do you think this is relevant?

  22. Mark Bahnisch says:

    CL, with regard to “terra nullius”, the excerpts from Brennan J’s judgement quoted by Ken in his post are apposite. I remember when I was a first year Law student in 1986, I picked up an old text on Australian law – dating I think from 1970. The section on “the reception of law” made it clear what is at stake in regarding the British as having settled rather than conquered Australia. Clearly, this was long before “Terra Nullius” became the term around which all this focussed. Now I think Ken is right that from a present day legal point of view, it makes little difference whether or not sovereignty was acquired by settlement or conquest. I think Ken is also right that the rhetorical contest over the word “conquest” is significant. From more or less 1988 onwards, there has been controversy over whether Australia is to be regarded as having been “conquered” – as the implication of this is clearly that some sort of just settlement is owed the indigenous people. This debate erupted in 88 at the Bicentennial, and factored into Hawke’s support for a treaty, and then later morphed through the “culture wars” into an issue of national identity – where there was contestation over Keating’s Redfern speech, the way that 1788 should be referred to in schools, etc. To me, the link between the controversy over whether Reynolds ‘slanted’ international law doctrines and influenced the High Court, and the debate over Windschuttle’s work have at least two commonalities:

    1. The politicisation of history and the struggle over the present-day political significance of accepting a certain interpretation of the past (this can also be seen in the debate over the National Museum);

    2. Consequently, the use of political forms of rhetoric and polemic (ie discrediting an opponent on the basis of a small error, ad hominem arguments etc) which are alien to, and should be alien to, any sort of reasoned academic debate over either facts about history or their interpretation.

    It seems to me that Macyntire covers all of this well in his book, and that one characteristic of the argumentative style of both Windschuttle and Pearson is that their goals are not the objectivity or positivism that they state (sometimes), but rather the advancing of a political agenda. The irony is that they accuse Reynolds of exactly that. What I’ve read of the response of Reynolds to his critics has seemed to me to be fair and reasonable, and willing to accept criticism and correction when warranted.

    It seems to me the pity in all this is that what we do not have is a mature debate between proponents of differing interpretations of Australian history, but rather a lot of name-calling, nit-picking and political polemic.

  23. Al Bundy says:

    Greg Melleuish would seem to disagree, Mark. I think his McCarthyism and Cold War analogies sum up Macintyre very well.

  24. Mark Bahnisch says:

    Al, I haven’t read the new afterword to Macintyre’s book. However, I think Melleuish is being fairly selective in his apparaisal of the book as such. ‘History Wars’, I don’t think, is purported to be a work of scholarship – more of a bit of a popular account of what’s going on and what’s at stake. Also, a lot of it seems reasonably straightforward reportage – though Macintyre certainly does see Howard and right-wing columnists as being up to something with the “history wars”. But are they not? Isn’t the fact that we are having this discussion proof enough? I don’t think he provides enough argument to support his McCarthyism and Cold War analogies.

    Most of Melleuish’s column is devoted to his (reasonably long standing) critique of the teaching of history. Here he may have some valid points to make, but again some context is needed. For instance, as he observes, there has been a huge move by students in politics departments to international and world politics and away from Australian politics. This is certainly true. Australian politics, in my opinion, as a university subject, is taught in a very dry and uninteresting manner on the whole – and it’s certainly not a hotbed of leftism. The move to international politics seems to be in part explicable by the fact that things like globalisation, s11, the ‘war on terror’ etc mean that this appears to be where the action is. A similar dynamic may be at work in history departments – it’s not necessarily the case that declining student demand is only to be explained by perceived political bias. In fact, Melleuish offers a sufficient explanation (though I have no way of knowing what it it is based on – and I suspect largely anecdotal evidence) – poor teaching, which is lamentable in any discipline, and which students are quick to avoid regardless of the lecturer’s politics, in my experience.

    My own view is that as a university teacher, one should not disguise the fact that one is passionate about the issues that one raises, but that one should avoid pushing any particular line. I know of colleagues who do this – and I regard it as an unethical practice and as not being teaching in any real sense. But while I might agree with Melleuish if I had more info to back up what he’s saying, it does appear to me that he is conflating several issues and they don’t readily support the conclusion he wants to draw – which I take to be that “left wing historians are distorting the truth and destroying history”.

  25. Mark Bahnisch says:

    I re-read Macintyre’s book tonight and on p. 213 he refers to a similar claim made by Windschuttle that student numbers in Australian history were rapidly falling, and states that this was supported by no evidence and if the statistics on enrolments were to be consulted this would be shown to be a “lie”. My earlier comment took Melleuish on faith regarding his claim that student numbers in Australian history courses were dropping. Given Macintyre’s very strong statement, it would be interesting to know the basis for Melleuish’s claim. The possible parallel I drew with the decline of interest in Australian politics was based on the comments of Heads of Schools at the 2002 Australian Political Science Association Conference, which I attended. This reinforces my suspicion that Melleuish’s arguments were under-supported by evidence and drew some pretty long bows in reaching his conclusion. It’ll be interesting to see if there is any reply by Macintyre to Melleuish’s piece.

  26. Al Bundy says:

    Mark,

    I covered several Australian units in my undergraduate history major in the late 90s. I can assure you that they promoted a very bleak view of Australia’s last 220 odd years. Topics covered included (naturally) the mismanagement of indigenous policy by paternalistic white governments, the sacking of Gough Whitlam and the rise of the peace movement in Australia (as an alternative to ‘tired’ ANZAC ‘myths’ etc).

    Now, I suppose the problem could be one of perception. It may well be that you do not consider anything explicitly ‘left wing’ about these perspectives. I, however, do.

    I confess I do not know the basis of Melleuish’s figures re declining enrolments. I agree that there is probably a perception that the market for experts in Australian history is very small, and that this could (and should) be more of a concern to school leavers than political bias and negativity.

    I don’t want to sound like I’m nit-picking, but earlier you were critical of

    …political forms of rhetoric and polemic (ie discrediting an opponent on the basis of a small error, ad hominem arguments etc) which are alien to, and should be alien to, any sort of reasoned academic debate over either facts about history or their interpretation

    You’d have to admit that Whitewash and History Wars could easily be perceived as being every bit as guilty of those sins as say anything on Windschuttle’s site.

    I don’t really see how you excuse Macintyre because you don’t think it

    …is purported to be a work of scholarship – more of a bit of a popular account of what’s going on and what’s at stake.

    Look, I’ll reiterate my point from earlier. As Windschuttle says:

    …all historians have a public responsibility to report their evidence fully and accurately and to cite their sources honestly. To pretend that facts do not matter and that acceptable interpretations can be drawn from false or non-existent evidence is to abandon the pursuit of historical truth altogether. Historians who do so betray their professional duty to preserve the integrity of the ancient discipline of history itself.

    This is not about nuanced discussions of scholarly standards, or of right wing conspiracies to whitewash Australia’s history. It is about whether people on the public purse displayed blatant dishonesty in creating an extremely negative and partisan portrayal of Australian history.

    The whole discussion about terra nullius being dismissed by the High Court is based on the notion that such a concept even existed at the time of European colonisation. My humble take on the issue is that the High Court spent much time trying to find what legal principles were used to justify displacing the indigenous population. Why not simply apply Occam’s Razor and say there were none?

    Instead we see the Court focusing on a legal principle which only entered the land rights discourse in the 70s, and only gained any credibility because it was popularised by ‘professional’ historians who consider ‘essential truths’ more important than facts.

    Ken may well point out that concepts similar to terra nullius extend back to at least the 19th century. But were it not for the traction that terra nullius gained through its widespread adoption in universities, it’s questionable whether the Mabo findings would bear any resemblance whatsoever to those actually laid down.

  27. Brian Spittles says:

    Hi,

    I think you have misunderstood what Connor is saying. For instance, you say “terra nullius was an old international law doctrine providing a pseudo-juridical basis for assertion of sovereignty by European colonial powers”. Terra nullius was not and old international law doctrine. You will not find it actually recorded in any court case transcript in Australia until 1975. It does not exist in any of Australia’s founding documents. This is Connor’s point.

    The first time I can find the actual term “terra nullius” being used in Australia is in 1939. The first time I can find the actual term “terra nullius” being used elsewhere in the world is in 1888 at an international law tribinal. I’ve researched intensively into this with the original intent of proving Connor wrong, but the more I looked, the more I found his core assertion is correct. There was no such thing as the doctrine of terra nullius used by the British in 1788 to acquire Australian territiories.

    I’ve written a paper on this which I intend to put out once I’ve run it past key players in Native Title groups, as I don’t want it to be manipulated by right wing groups to argue against Aboriginal land rights. My paper consolidates into what I believe is a strong argument for Aboriginal sovereignty and land rights.

    Cheers,
    Brian

  28. Mark Bahnisch says:

    Al, I guess there is some perception at work here. I think it’s fine to ask students to look at indigenous policy, the peace movement, the dismissal, etc. provided it’s always done critically and students are afforded the chance to make an informed judgement.

    I’m not sure that History Wars is guilty of polemical sins in toto. As I said I re-read it last night, and was reassured to find it very matter of fact and balanced in a lot of the chapters. Macintyre gives due weight to Windschuttle’s critique, discredits some of the arguments normally used against him, and acknowledges errors on the part of some historians.

    As to the whole terra nullius thing, for the life of me I can’t understand why it matters that Reynolds’ work may have informed the Court. Surely the Court’s decision – recognising customary indigenous law as a source of Australian common law – is one that it can reasonably make regardless of the exact trajectory of when particular international law concepts became common in Australian legal and historical discourse. I’d be much happier if people who oppose the Mabo decision argued against it on policy grounds – or grounds of justice – rather than endless attacks on ‘left wing’ historians. It’s really beside the point. Some people think the Mabo decision was just and will argue it in those terms. Let’s hear the reasoned counter-argument.

  29. tipper says:

    Brian
    Terra Nullius was all the go with the break up of the old Soviet Union, especially when linked to Uti Possidetis. That’s when I (as a non lawyer first got interested in the concept.)
    See [FN5} at this link for a generally accepted definition of the concept

  30. Norman says:

    One issue mentioned above is the question of whether the study of History is declining. Our better high school students no longer tend to study it at Matriculation level, and those who do enroll in academically dead “History” courses which often barely deserve the title. At the University with which I’m most familiar, a third year “major in history” is presented by a lecturer who rambles on about her own child’s kindy, other kindy schools, shows time consuming hardly relevant films, and seems blithly ignorant of the coursework that should be covered. But she doesn’t ask much, grants passes, and her classes are full. A more competent lecturer provides a History Major in something every budding History teacher needs, “Neo-Paganism and Witchcraft in Modern Australia”. But I guess they do have significant numbers of students who are studying “history”?
    I’m not, by the way, speaking of one of our converted tech colleges which were only recently became “born again universities”. I only wish I was.

  31. James Farrell says:

    Norman is pursuing the time-honoured pastime of forging urban myths about university courses. Maybe I can nip this one in the bud. He is probably referring to this subject in the Religious Studies program at Sydney University.  It’s not my cup of tea either, but is it really so shocking that a religion department is running courses on superstitious beliefs and practices?
    Here, on the other hand, is a list of the offerings from the History Department at the same university (select ‘History’ from the list of departments).  I wonder if it meets Norman’s tough requirements for a robust history education. You might like to find out what a major is, by the way, Norman.

  32. Mark Bahnisch says:

    James, I thought Norman was referring to UQ, which has a course in Neo-Paganism in the Religion Department and a course on the history of Witchcraft in the History Department. However I’ve just checked the list of courses which can be credited to BA majors and his title corresponds to neither course. Both are entirely reasonable things to study – the neo-pagan religions are among the fastest growing in the West (and the UQ lecturer who teaches this course is a respected authority) and the witch persecutions can illuminate many aspects of medieval and early modern history. I was an undergrad at UQ and have worked there on and off as a Sociology lecturer on contract. My impression – gained from talking to colleagues in the History Department when I was coordinating a Criminology major and we were including some History courses – is that the quality of teaching is high – and that recent staff changes have improved matters from what was a fairly uneven Department when I was there in the late 80s. The Religion department at UQ is, and always has been, excellent both in terms of teaching and research.

  33. Mark Bahnisch says:

    James, I thought Norman was referring to UQ, which has a course in Neo-Paganism in the Religion Department and a course on the history of Witchcraft in the History Department. However I’ve just checked the list of courses which can be credited to BA majors and his title corresponds to neither course. Both are entirely reasonable things to study – the neo-pagan religions are among the fastest growing in the West (and the UQ lecturer who teaches this course is a respected authority) and the witch persecutions can illuminate many aspects of medieval and early modern history. I was an undergrad at UQ and have worked there on and off as a Sociology lecturer on contract. My impression – gained from talking to colleagues in the History Department when I was coordinating a Criminology major and we were including some History courses – is that the quality of teaching is high – and that recent staff changes have improved matters from what was a fairly uneven Department when I was there in the late 80s. The Religion department at UQ is, and always has been, excellent both in terms of teaching and research.

  34. Al Bundy says:

    Let’s see. I asked the question:

    Well, the contemporary legal implications might be minimal, but when we bought into the ICJ, weren’t we just inviting a plaintiff to make off to The Hague to put forth just such a proposition about terra nullius?

    Ken, you reckon:

    No, because only nation state signatories (not individuals) can bring actions in the ICJ. Moreover, although I’m not sure whether the ICJ formally recognises concepts of standing (i.e. that a party must have some real, substantive interest), I suspect that in a practical sense it would be expected. It’s difficult to see what other nation could advance such an interest.

    Which makes me wonder just how this came about.

    I rest my case.

  35. Norman says:

    “Norman” was NOT referring to anything speculated on above. The courses were Third Year History Majors, and my concerns are that: —
    a] One of them, which certainly should be relevant to those considering teaching history, was being taught by someone who appeared to have been employed for reasons unconnected with the most basic of academic standards. What made this even worse was that another excellent lecturer on the staff has shown she was ideal for this course.
    b] The lecturer running the other History Third Year Subject, “Neo-Paganism and Witchcraft in Modern Australia” is an ideal person for that course; but again I shudder to think of High School Teachers being let loose on our already beleaguered School History Departments, with this as their major background in History.

    But I’m sure from people’s reactions that all must be well with academic standards across the nation? As the old song said, “The country’s in the very best of hands.”

  36. Brian Spittles says:

    In response to ‘tipper’ – thanks for sending the link. I have read some of Castellino’s work before about the connection between terra nullius and uti possidetis, however, like innumerable other authors, Castellino tends to retrospectively inject the term ‘terra nullius’ into a history where it probably did not exist. For example the footnote you directed me to states that “Emerich de Vattel set out three major epochs of terra nullius corresponding to our analysis of uti possidetis”, but de Vattel never actually used the term in any of his works. I never did track down the original source of the term, but my hunch is that it was first coined in the mid-to-late nineteenth century.

    In response to Mark Bahnisch – Though the High Court annulled the non-existant during Mabo (as the term ‘terra nullius’ seemingly did not exist at the time of Australia’s colonisation in 1788), this does not necessarily diminish the Aboriginal land rights struggle, for whether or not terra nullius existed, Mabo invalidated long-standing claims that Australian territory was ‘unoccupied’ by Aboriginal people. However, if Australian territory was not claimed through the international law mode of Occupation (the occupation of ‘uninhabited’ lands), what did happen? A search through colonial documents such as instructions to Captain Cook and Govenor Phillip give a clear indication that territorial acquistion through Cession was intended, but did not come to pass. What occurred instead was a process of quasi-conquest by default. In annulling terra nullius the High Court should therefore have nominated another mode of territorial acquisition, namely Conquest, thus legally recognising Aboriginal sovereignty and land rights. At present Australian territory remains occupied by no legal mode of territorial acquisition in international law. The use of intertemporal law to nominate Conquest as the mode of territorial acquistion in Australia, along with the recognition of Aboriginal sovereignty, will finish what should have happened in Mabo.

  37. Mark Bahnisch says:

    Brian, thanks for that information.

  38. Brian Spittles says:

    My statement above that 1975 was the first time terra nullius was actually mentioned in an Australian court of law is incorrect. It was in fact during the 1979 Coe v Commonwealth case that this occurred.

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