David Ritter

The Ideological Foundations of Arguments About Native Title

The political disputes over native title in Australia have generally been interpreted without recourse to ordinary ideological categories. The general failure to engage with ideology has hampered scholarly analysis, stunting the vocabulary and content of debate, as well as giving the content of public deliberation on the issue a curiously free-floating quality. In this article it is contended that arguments about native title are amenable to being understood as a product of the interaction of a range of well-known normative frameworks: liberalism, social democracy, conservatism, nationalism, socialism and transcendentalism. Each of these six ideologies furnishes rationales both for and against native title by focusing on different elements or preoccupations within the respective ideological traditions. A typological framework is proposed which outlines a range of ideal type positions in relation to native title.

Antipodean Settler Societies and their Complexities: the Waitangi Process in New Zealand and Native Title and the Stolen Generations in Australia

Abstract This article considers the process of determining native title claims and responding to the revelation of forced Indigenous child removal in Australia, together with the Treaty of Waitangi claims process in New Zealand; each of which can be understood more broadly as a response to the aftermath and ongoing consequences of colonisation. We undertake this analysis comparatively, through an examination of the broad sweep of colonial history in both countries, followed by a more detailed consideration of the processes in question, as they have become manifest over the last decade or so in Australia and almost 30 years in New Zealand. We compare and contrast the institutions, epistemological and political preoccupations and language in each case, revealing various latent ironies and incongruities in the systems on both sides of the Tasman Sea.

Shrinking democracy with law

The Australian federal government - and several state governments - are currently seeking to use law to reduce the democratic space available to Australian citizens and even future governments. Legal realist theory tells us that law follows power, in contrast to the legal positivist view that laws development follows its own internal rules of logic. In Australia today, the realist thesis is evidenced by several laws currently being pursued or considered by the Australian government, acting under the influence of corporate pressure. Four particularly striking examples illustrate this illiberal and alarming trend.

Tilting at doctrine in a changing world: the three editions of Henry Reynolds’ The Law of the Land

Abstract Henry Reynolds’ The Law of the Land was first published in 1987 and advanced a radical reassessment of the history of property ownership in Australia. Reynolds’ work challenged the prevailing legal and historical orthodoxy under which it was assumed that as a consequence of colonisation, the Indigenous peoples of Australia no longer enjoyed any enforceable rights to land arising from their traditional use and occupation. Since its initial publication, The Law of the Land has been reissued in a new and expanded edition twice: first in 1992 and again in 2003. Each of the fresh editions of The Law of the Land contained additional material that was neither a product of new historical research by the author nor a rejoinder to scholarly criticism, but rather a response to changing events in the present. This article analyses the third edition of The Law of the Land and reflects on the evolution of the work in the context of both Reynolds’ proclivities as an historian and shifts in current politics and law.