“Nous rebâtirons.” (We will rebuild.)

— President Emmanuel Macron of France, 15 April 2019, as the great cathedral burned.

It was one of those spring days that are so gentle and pretty that all Paris treats them like Sundays, crowding the squares and the boulevards. During such days of clear skies, warmth and peace, there comes a supreme moment at which to appreciate the portal of Notre-Dame. It is when the sun, already sinking, shines almost directly on the cathedral. Its rays, more and more horizontal, slowly leave the pavement and climb the vertical façade to highlight the countless carvings against their shadows, until the great rose window, like the eye of a cyclops, is reddened as if by reflections from a furnace.

— Victor Hugo, The Hunchback of Notre-Dame

I have known Notre-Dame since I was a child. I am not a Catholic, nor any kind of Christian, and I make no claim on the cathedral’s theology. But I have spent a great many hours wandering its corridors and standing beneath its ribs of stone, and I have found there what Hugo found: a building through which the whole of human drama seems to have passed at one time or another – coronations and revolutions, weddings and funerals, the ordinary devotions of nine centuries of Parisians, watched that particular evening by a world holding up its phones from the embankments below.

On 15 April 2019, it very nearly died. And in the hours after the spire came down in a column of sparks, before the fire was even out, President Macron went on television and made a promise: nous rebâtirons – we will rebuild. It was, on its face, a simple undertaking to restore a damaged national monument. But the promise did not stay simple for long. Within days it had been drafted into a much larger argument, one in which the cathedral was no longer only a cathedral, but a body double for something called “the West,” and its burning was no longer a construction-site accident – most likely an electrical short circuit or a workman’s cigarette, the investigation never settled which – but a portent: proof, to a great many commentators, that a civilisation was going up in flames along with it.

I want to take that reading seriously enough to argue with it properly, rather than dismiss it as the excitable overreach it often is. So let me state the thesis in its strongest form, the form its more serious proponents would recognise as their own and then let me take it apart.

The Case for a Civilisation in Ashes

The argument runs, at its best, something like this. For roughly fifteen centuries a set of institutions, symbols and inherited certainties – Christian in origin, later secularised but never quite de-sacralised – supplied European and settler societies with a shared story about who they were and what they owed one another. The cathedral was the literal architecture of that story: a public building that took generations to complete, funded by guilds and monarchs and the widow’s mite alike, oriented toward a horizon nobody who laid its foundation stone expected to live to see. Its very slowness was the point. It taught patience, continuity, the subordination of the individual craftsman’s ego to a project larger and longer than himself.

It is a coherent argument, and it is not a new one. Oswald Spengler was making a version of it a century ago, charting what he took to be the inevitable senescence of “Faustian” civilisation with the same funereal confidence that today’s commentators bring to a burnt roof. Every generation since has produced its own edition: the barbarians are at the gate, the cathedral-builders have been replaced by clerks, the sacred has curdled into the merely administrative. What gives the Notre-Dame version of the argument its particular force is that, for once, the metaphor was not merely rhetorical. An actual, ancient, universally recognised symbol actually caught fire, on camera, in real time, and the coincidence of image and argument was too perfect for the argument’s proponents to resist. Here, at last, was proof rendered in sparks and falling lead: not a metaphor for civilisational collapse but civilisational collapse, live, with a hashtag.

I recognise something of my own experience of the building in this part of the argument, even where I end up rejecting its conclusion. Hugo’s description of the light climbing the façade at sunset, the rose window catching fire with reflected colour rather than actual flame, describes a particular kind of attention that a building has to be very old, and very deliberately made, to reward. You do not get that from a shopping centre atrium, however cleverly lit. There is something to the claim that certain kinds of architecture were built to slow a person down and orient them toward something larger than an afternoon’s errands, and that a great deal of what has been built since has not been built with that intention at all. I do not dispute that loss. I dispute only what it is supposed to be evidence of.

What has replaced it, on this account, is something thinner. The post-1945 West rebuilt itself in glass and concrete and quarterly earnings calls; its public buildings are optimised for cost per square metre, not for the edification of the soul; its dominant story is one of individual entitlement rather than collective inheritance; and its cathedrals, when it can be bothered to repair them at all, are reconstructed not as acts of pious continuity but as tourism infrastructure, insured, branded, streamed. On this reading, the crowds who wept on the Pont de l’Archévêché in 2019 were not really weeping for eight hundred years of limestone. They were weeping for the sense – accurate or not – that they were the last generation to have inherited something whole, and the first to watch it become, irrecoverably, a “pale shade” of itself: present in form, hollow in substance, a museum piece performing sincerity it no longer feels.

It is a coherent argument. It is also, I think, wrong – not because the sense of loss it describes is fake, but because it smuggles in an assumption that does not survive contact with the actual history of the building it uses as its emblem.

The Spire that was Never Medieval

Here is the detail that undoes the metaphor from the inside: the spire that collapsed on the night of 15 April 2019, the one that appears in every grieving photograph as the essence of what Paris lost, was not medieval. It was not even old. It was designed and built in the 1860s by the architect Eugène Viollet-le-Duc, more than four hundred years after the cathedral’s Gothic core was completed, as part of a sweeping restoration that followed decades of neglect, revolutionary vandalism, and the building’s use – during the more anti-clerical stretches of the nineteenth century – as a warehouse.

Viollet-le-Duc did not simply repair what had decayed. He redesigned it according to his own theory of what a “truly” Gothic cathedral ought to look like, adding gargoyles, statuary and a spire considerably more elaborate than the one it replaced, and populating its roofline with figures of the apostles – one of which, in a gesture historians still enjoy, he modelled on his own face. The Notre-Dame that burned in 2019, the one that became shorthand overnight for an entire civilisation’s authentic and irrecoverable past, was in significant part a nineteenth-century romantic invention: a monument to what an earlier generation, anxious about its own sense of discontinuity with the Middle Ages, imagined the Middle Ages to have been.

It is worth noting, too, that this restoration was itself set in motion partly by Hugo’s novel – the very epigraph above this essay. The Hunchback of Notre-Dame was written in 1831 as a polemic against the demolition and disfigurement the building had suffered, and it worked: it shamed a generation into caring about a structure they had been quietly letting fall down. So the object that a further two hundred years later would be mourned as the unbroken thread connecting the present to some pure medieval origin was, at every layer anyone chooses to peel back, already a rebuilding – an act of civilisational anxiety answering an earlier act of civilisational anxiety, each one reaching for an “authentic” past that kept receding the moment anyone reached it.

This is not a minor architectural footnote. It is the whole argument in miniature. There was no year in which Notre-Dame was simply, finally, itself – no state of the building that was not already the product of additions, subtractions, fires (this was not its first), revolutions, restorations and reinventions layered on top of one another for nine hundred years. What burned in 2019 was not a fixed essence finally extinguished. It was one frame in a very long film of continuous rebuilding, and Macron’s promise that Wednesday night – nous rebâtirons – was not a vow to arrest history and return the building to some prior state of grace. It was, whether he knew it or not, simply a restatement of the building’s actual nature. Notre-Dame does not have an original to be a pale shade of. It has only ever been what gets rebuilt.

None of this fully answers the stronger version of the objection, and it is worth granting that version rather than only the weaker one. The strongest complaint is not that the 1860s spire is somehow less real than a medieval one – a fair objector will concede that fabric has always been renewed. It is that a cathedral rebuilt under twenty-first-century heritage law, insured, livestreamed, and raised by a labour market recruited across borders, is not the same kind of social object as one built stone by stone over generations by a society that took its Catholic cosmology as simply true. Even identical oak, even techniques revived exactly as the guilds once practised them, do not by themselves reconstitute the unbroken chain of belief and practice – what a sociologist might call transmission – that once ran through the building alongside its masonry. That loss is real, and reproducing the spire does not refute it. What it does is deny the loss its innocence. Transmission was never, at any point anyone can actually name, the pure and unbroken thing this stronger objection quietly assumes it once was: the nineteenth century’s Gothic revival was already a revival, consciously staged by architects and clergy who knew perfectly well they were reconstructing something they believed had already lapsed. If what died was an unbroken line running back to a Catholic kingdom, it did not die in the twentieth century, or in the fire, or even in the Revolution. It died, if it was ever purely alive at all, long before Viollet-le-Duc climbed onto the roof to design a past worth continuing.

A Different Fire, a Different Myth

I raise this not to relitigate French architectural history but because the same error – the assumption of a pure prior state now degraded – sits underneath a great deal of political argument well beyond Paris, and one especially instructive example is unfolding, at the time I write this, in the courtroom of the High Court of Australia.

On 8 and 9 September 2026, the Full Court sat to hear a constitutional challenge brought by an organisation calling itself the White Australia Party against the Commonwealth. The party’s National President is Thomas Sewell, formerly the leader of a group called the National Socialist Network, which announced its own dissolution shortly after the Commonwealth passed legislation – introduced in response to an act of terrorism in Bondi – permitting the Home Affairs Minister to formally proscribe organisations found to incite racial hatred. Mr Sewell’s group did not so much disband as rename itself; on Anzac Day 2026 it lodged papers to register the White Australia Party as a political vehicle, and shortly afterwards it was listed under the new laws as a prohibited hate group, with membership or material support now carrying penalties of up to fifteen years’ imprisonment. The party’s challenge – that the proscription regime offends the implied constitutional freedom of political communication – is a serious constitutional question, and courts should and will take it seriously as one. I am not interested here in pre-empting the Court’s reasoning. I am interested in the slogan the party marched behind in the rallies that preceded all this litigation: Australia for the white man.

It is worth sitting with that sentence for a moment, because it makes a move that rhymes with the one Notre-Dame’s mourners make, without being quite the same mistake. Like them, it asserts a prior state – a white Australia – that has since been lost, diluted, or stolen, and proposes to rebuild it, or rather to un-build everything added since. Unlike them, it is defending something that did, in an important and dangerous sense, actually exist. This continent has been continuously occupied for at least sixty-five thousand years by peoples organised into hundreds of distinct nations, language groups and law, and that occupation has never been ceded; the colonial project that arrived in 1788 did not find an empty canvas. But it is also true that the White Australia Policy which followed federation in 1901 was not merely rhetoric. It was real legislation, sustained for seven decades by a genuine parliamentary and popular majority, and it did a great deal of its intended work: a century of frontier violence, disease and dispossession had already reduced the Aboriginal population, by the time of federation, to a small fraction of the continent’s people, and the policy that followed set out, quite deliberately, to keep the rest of the country white. It succeeded to a considerable and shameful degree. What it did not achieve – what no purity project ever fully achieves – was completeness. Aboriginal and Torres Strait Islander people did not disappear, non-European communities were never entirely excluded, and the sovereignty the policy assumed it was simply administering was never in fact given up. The slogan Australia for the white man is not false because a white-dominated Australia never existed. It is false because it asks the country to treat as a return to origin what was always, even at its most brutally effective, an unfinished and violently incomplete project – the same species of invented purity Viollet-le-Duc built into a spire, only built here with dispossession rather than limestone.

This is the same structural mistake as mourning the “original” Notre-Dame spire, translated into a register with much higher stakes. It reaches backward for a state of purity that, on inspection, was itself already an invention – a nineteenth-century political fantasy modelled, consciously or not, on the far older Western habit of imagining a golden age just behind one’s own moment, always one generation further back than living memory can check. It is, in this sense, a myth in the strict, technical use of that word: not a lie exactly, but a story that explains and justifies a present arrangement by projecting an idealised past that the present arrangement claims to be defending or restoring. The Greeks understood this instinct better than we usually credit them for. Athena is said to have sprung fully formed and fully armed from the head of Zeus – an origin story that conveniently erases the far messier, more contingent, more compromised process by which any actual thing, deity or nation, comes into being. No civilisation springs fully formed from anyone’s head. Every one of them is assembled, argued over, revised, and – when it burns – rebuilt, out of materials and people who were never as uniform as the myth insists.

It is worth being precise, though, about what this comparison does and does not establish, because collapsing it too quickly does the argument no favours. The mistake of imagining a lost pure Notre-Dame is a mistake of historiography – a failure to notice that the object of one’s nostalgia was itself already a reconstruction. The White Australia Party is not principally guilty of that mistake, or not only of it. It is, on the Commonwealth’s own case, the same organisation as the National Socialist Network, which announced its dissolution as the new hate-crime laws arrived, then resurfaced under successive new names – one of them, “White Australia,” later listed as a prohibited hate group, another of them the party now seeking registration as the political vehicle at the centre of this litigation – a sequence the Commonwealth has characterised as a calculated attempt to dress racist and antisemitic organising in the borrowed legitimacy of parliamentary politics. Whether that survives the implied freedom of political communication is a live and genuinely difficult constitutional question, and it is not this essay’s place to predict how the Full Court will resolve it. But that legal question – whether the Commonwealth may criminalise membership of a proscribed organisation – is different in kind from the historiographical one this essay has been pursuing about invented origins. The two arguments belong side by side, not folded into one. The myth-critique explains why the party’s founding slogan is false. It does not, on its own, tell you anything about the organisation that has adopted it, which is not a wistful historical society mistaking a reconstruction for an original but, by its own history and the Commonwealth’s pleadings, a movement with a recent and violent record.

That record is not abstract. In August 2025, a group of men associated with the National Socialist Network attacked Camp Sovereignty, the protest camp Krautungalung elder Robbie Thorpe and others established in 2006 and re-established in 2024 beside the Kings Domain Resting Place – itself established in 1985 as the burial ground for the repatriated remains of thirty-eight Aboriginal Victorians, people whose bones had been taken from this country by collectors and museums and were only decades later brought home to it. It is difficult to imagine a more literal collision between the two things this essay has been holding side by side: an organisation built on a myth of racial purity attacking, in the same year it began rebranding itself as a political party, the ground beside a resting place for people whose sovereignty over this continent was never ceded and whose presence here predates the myth’s imagined founding by tens of thousands of years. Whatever the High Court decides about the constitutional question before it, that attack was not an argument about how to read history. It was violence.

Rebuilding is Not Restoration

I do not think Western civilisation has been destroyed, and I do not think it is at risk of being destroyed by the presence of people who were absent from some imagined founding photograph. What has happened, in both Paris and Canberra, is less apocalyptic and more ordinary: a civilisation continuing to be built, which always looks like decline to whoever mistook an earlier stage of the building for its finished state.

The actual rebuilding of Notre-Dame, reopened in December 2024, makes the point better than any argument could. French law required it to replicate the cathedral’s last complete state, so Viollet-le-Duc’s nineteenth-century spire was rebuilt again – an invention preserved as though it were the original it never was – using medieval guild techniques that had to be relearned because industrial methods had let them lapse, by a workforce drawn from well beyond France. The rebuilt cathedral is, like every earlier version of it, a composite: medieval bones, romantic invention, and modern craft revival. It is not a pale shade of a lost original. It is simply the latest layer of a building that has never been anything but layers.

The same is true of whatever “the West” is, if the term means anything worth defending. It has never been a fixed inheritance handed down intact: Greek philosophy reached European monasteries through Islamic scholarship, the Renaissance leaned on manuscripts preserved in Byzantium and the Arab world, and even the Gothic cathedral’s pointed arch owes something to techniques that crossed the Mediterranean during the Crusades. A civilisation that only counts as authentic when imagined as racially uniform has confused itself with Athena’s fiction – and forgotten that the stones it wants to defend were raised using ideas that crossed the very borders it now wants to seal.

What We Are Actually Promising

So when I hear “nous rebâtirons,” I do not hear a vow to return to a state of former purity, because no such state exists to return to. I hear a description of what civilisations always do: keep building, argue about what the new spire should look like, borrow techniques and people from wherever the skill resides, and eventually mistake the result for the original once the argument is forgotten.

This does not mean nothing is at stake in Canberra this month, or that the anxieties of 2019 were contemptible. Something real is at stake whenever people feel the ground shift under a story they built their identity on. But the answer is not to grant a fictional prior state the moral authority of loss. It is to acknowledge that the thing being rebuilt was never simple, never finished, never uncontaminated by outside hands – and to rebuild anyway, in the only material civilisations have ever actually been made of, which is each other.

There is a particular comfort available only to people who believe they once had something whole: it locates the wound safely in the past and excuses them from having to build anything new. I understand the appeal. I do not think it is available to us, in Paris or in Canberra, because the clean original it promises was never there. Viollet-le-Duc’s apostles, gazing out over Paris with his own borrowed face, are not a betrayal of some earlier, truer Notre-Dame; they are an earlier chapter of the same argument about what the building should be. The White Australia Party’s slogan belongs to that same history of invented origins, and that is reason enough to call it false. Whether the organisation that carries the slogan may lawfully be banned is a separate question, for the Full Court and not for this essay, and nothing in the history of a cathedral answers it.

I do know that whatever the Court decides, the slogan will remain what it was before any judgment: a description of a country that never existed, offered as the memory of one that did. And I know that the cathedral I have walked through since I was a child is not diminished by having been built twice over by nineteenth-century romantics and twenty-first-century stonemasons alike. It is, if anything, more honestly itself for it – a building that has never once stopped being built, and has therefore never once finished being what it is.

The rose window has been reddened by reflections from a furnace before. It will be again. What it has never once been, in nine hundred years, is finished. Nous rebâtirons was never a promise to bring something dead back to life. It was a description of the only thing a civilisation – French, Australian, or any other – has ever actually known how to do.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

One Nation’s integrity campaign and the standard it invites onto itself

Pauline Hanson’s “Fire the Liar” campaign puts a single word at the centre of Australian politics: honesty. Anthony Albanese, the campaign says, has misled the country on the Voice, on tax cuts, on energy prices, on immigration. Whether each of those charges holds up is a separate argument, and one worth having on its own terms. What concerns this essay is narrower and, in a way, more interesting: a campaign built on the currency of integrity has to spend that currency carefully, and the candidates it has fielded for the Victorian election have already put a strain on the account.

The Record So Far

Public reporting on One Nation’s announced Victorian candidates has not been kind, and each case now has more texture than the first headline suggested. Mark Nicholson was presented in campaign material as a former criminal lawyer, However, in a News Corp article quoted by Crikey as published on 11 July, Nicholson stated that he practised in litigation for six weeks before leaving law to co-found the animation studio behind One Nation’s own Please Explain cartoons – the six weeks are real, the unqualified title is not, since Nicholson was never admitted to practise. Harrison Rindfleish’s biography stated he had completed a double degree in law and commerce; his own, since-deleted LinkedIn profile showed he had started the degree in 2025 and would not finish until 2028, and once the discrepancy was reported the party quietly amended the wording to say he was “undertaking” the degree, declining to comment further. Ben Lucas pleaded guilty to operating an unregistered category-one aquatic facility – a sauna and ice-bath business in Warragul – without the required council registration, and was fined without conviction recorded. Warren Pickering, named the party’s Victorian leader in August, had Hanson brand his former partner’s claims of past drug use and drink-driving as “false”; a day later he fronted the media himself and confirmed both, while disputing some of the specifics she had alleged.

Three corrected or reversed accounts inside one campaign is not proof that a party is indifferent to the truth. It is evidence that whatever vetting exists is under real strain – whether from the pace of candidate recruitment, the thinness of the bench, or both.

A caveat belongs here, in the interest of the same evidentiary precision this essay asks of the campaign it examines. This account works from the cases that reached public reporting – Nicholson, Rindfleish, Lucas and Pickering – not from an audit of One Nation’s full Victorian field, which numbers in the order of seventy candidates. Whether these four are the story because they are the most visible – Pickering leads the party in the state, Nicholson has a public-facing profile – or because the rest of the field is in fact cleaner, is not established by anything in this essay. Where the record is silent, it is more honest to say so than to let four names imply a pattern across seventy.

None of this is disqualifying on its own. People misdescribe their qualifications, make mistakes as young adults, and are entitled to move past them. The difficulty is context: these candidates are running under a banner that asks the electorate to judge a sitting prime minister on precisely the standard of whether his public statements about himself and his government are accurate.

One Nation’s Answer, Put Fairly

To their credit, One Nation’s response to these stories has been consistent rather than evasive, and it deserves to be stated on its own terms rather than dismissed. The party draws a line between a candidate’s personal history – a licence loss, a regulatory fine, an imprecise line on a campaign biography – and what it characterises as deliberate policy deception by a head of government with the machinery of the state behind him. It points to improved internal vetting since Hanson’s own difficult early years in politics. It argues that minor party candidates face a level of media excavation that major party candidates, with better resourced compliance teams, do not. And it notes, not unreasonably, that everyone deserves the chance to be judged as an adult rather than permanently as the person they were at twenty-two.

This is a coherent position. A candidate who once lost a licence for drink-driving is not, by that fact alone, disqualified from later campaigning on trust in government; the two kinds of failure are not obviously the same species. The question is whether that distinction survives contact with a campaign whose premise is that the public deserves leaders whose self-presentation can be taken at face value.

Two Tests, Two Verdicts

The word “hypocrisy” is doing a lot of work in this debate, and it is worth being precise about which test is being applied, because the two available tests point in different directions.

The consistency test. If a party campaigns on the proposition that integrity in public life matters and should be enforced, then it takes on an obligation to apply a broadly equivalent standard to its own candidates’ biographies and disclosed histories. Judged against that test, a former-criminal-lawyer label attached to someone not admitted to practise, and a completed degree that was in fact barely begun, sit uncomfortably beside a slogan demanding the Prime Minister be held to his word. These are not personal failings from a candidate’s past; they are present-tense misstatements made in the course of the very campaign accusing someone else of misstatement. That is where the inconsistency is sharpest, and where the charge of hypocrisy lands hardest.

The equivalence test. If instead the test is whether a candidate’s personal conduct – drink-driving, a regulatory fine, drug use before entering politics – is the same order of wrong as a Prime Minister allegedly breaking a specific policy promise to the electorate, then One Nation has the better of the argument. A past personal failing disclosed and left behind is not equivalent to an ongoing claim about what a government will or will not do. Conflating the two flattens a real distinction between private conduct and public office.

The honest answer is that both tests are being applied at once, to different candidates, and the campaign’s opponents are not obliged to pick only one. The credential misstatements by Nicholson and Rindfleish fail the consistency test on their own terms, because they are exactly the kind of self-description the “Fire the Liar” campaign says voters are entitled to trust. Pickering’s history of drug use and lost licences is squarely an equivalence-test case – old personal conduct, disclosed once it was put to him – and One Nation’s argument has real force there. But the “false” denial issued in his name the day before is not old conduct; it is a statement made during this campaign, about this campaign, and it fails the same test the credential errors do. Only Lucas’s case sits cleanly on the equivalence side: an administrative matter, promptly resolved, with no live false claim attached to it.

There is a weaker link in One Nation’s own defence, though, that deserves to be pressed rather than left to stand. Granting that minor party candidates face more media excavation than major party candidates do not explain what that excavation actually found. It did not fabricate a criminal-lawyer title Nicholson never held, or invent a completed law degree Rindfleish had not completed; it found documents the party itself had published and reported what was in them. Scrutiny finds dirt. It does not write the candidate bio. The volume-of-scrutiny argument explains why the errors surfaced when they did. It does not explain why the errors were there to be found.

The Wider Australian Pattern

It is also worth placing this in context rather than treating One Nation as uniquely exposed. Hanson’s own political biography includes a 2003 conviction for electoral fraud, later quashed on appeal after eleven weeks in custody – a fact her critics raise and her supporters treat as a closed chapter, which under the equivalence test it arguably is. The party has, at various points, preselected or employed people with more serious criminal histories than anything reported of the current Victorian slate. And it is not alone: both major parties have, over decades, endorsed candidates who later turned out to have overstated qualifications, concealed financial trouble, or carried undisclosed criminal records. Mutual accusations of hypocrisy are close to a constant feature of Australian political life, not a peculiarity of this campaign.

That context is true, and worth stating plainly, but it should not be allowed to do more work than it can. That major parties have also run qualification-fakers and candidates with old convictions does not equalise the ledger for a party campaigning on precisely this failure in someone else. A minor party that builds its pitch around a purity standard, then applies that standard to a sitting prime minister, does not get to claim the same “everyone does it” discount available to a party that never made the promise. That is not a claim that One Nation’s candidates carry some unique moral turpitude the major parties have escaped – the reporting does not support that, and this essay does not make it. It is the cost of the branding they chose.

What makes “Fire the Liar” different is not that its candidates have failings – every party’s candidates do – but that the campaign has deliberately made honesty the frame of the contest. A generic scandal is a scandal. A scandal that lands on a campaign built around the word “liar” does more damage per incident, because the standard being invoked is the standard being failed.

Conclusion

None of this settles whether Albanese has, in fact, misled the country on the Voice, on tax, on energy, or on immigration; that remains a live and legitimate argument to be tested on the merits. But a campaign that stakes its identity on the proposition that leaders must be held to their word invites a correspondingly high standard of scrutiny for its own house. Judged by that standard – the one the campaign itself set – at least three of its Victorian candidates have already fallen short, and the party’s defence, however coherently argued, is an argument for a lower bar than the one its own slogan advertises. That gap between the standard proclaimed and the standard practised is not proof of dishonesty on policy. It is, however, a reminder that a campaign built on someone else’s fire still lives in a house made of glass.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

This week the High Court of Australia is doing something it does periodically and uncomfortably: hearing an argument, from a genuinely repugnant litigant, that may turn out to be constitutionally correct. On Tuesday and Wednesday, in Canberra, lawyers for the White Australia Party – the political vehicle assembled by the remnants of the neo-Nazi National Socialist Network – asked the Court to strike down the Commonwealth’s power to proscribe hate groups. Several of the country’s most respected constitutional scholars think they have a real chance of winning, on at least one of the three grounds argued. That prospect should trouble no one who actually believes in the rule of law, and it should trouble everyone who has spent the last four months assuming the law was simply on the side of decency.

It is worth sitting with that discomfort for a moment before getting into the doctrine, because the discomfort is the point. A liberal constitutional order does not get to reserve its protections for people whose politics we find tolerable. It either constrains executive power in general, or it does not constrain it at all. Whether the Constitution actually gives the Commonwealth the mechanism Parliament chose is a separate question from whether White Australia deserves to exist – and it is the only question the seven judges hearing this case are permitted to ask.

From Bondi Beach to Part 5.3B

The law under challenge did not emerge from nowhere. On 14 December 2025, two gunmen – a father and son, Sajid and Naveed Akram – opened fire on a Hanukkah celebration attended by around a thousand people at Bondi Beach, killing fifteen. Australian authorities and Islamic State itself, which claimed credit, described it as antisemitic, Islamic State–inspired terrorism; it remains the deadliest terrorist attack in the country’s history. Five weeks later, on 20 January 2026, Parliament passed the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, inserting Part 5.3B into the Criminal Code two days after that. It gave the responsible minister a new power: to advise the Governor-General to declare an organisation a prohibited hate group, on the minister’s own satisfaction – without a hearing, without procedural fairness, and without any prior finding by a court – that the group had engaged in, planned, assisted or advocated conduct constituting a “hate crime.” Membership, direction, funding or support of a proscribed group then attracts penalties of up to fifteen years.

The National Socialist Network had already read the room. On 20 December 2025 – six days after Bondi, five weeks before the Act existed – White Australia Party Inc was incorporated as a voluntary association in Victoria. In January the Network announced, on Telegram, that it and its satellite outfits the European Australian Movement and White Australia would disband. Dissolution on paper is not dissolution in fact: the incorporated party had been sitting quietly since December, and on 25 April 2026 it lodged an application with the Australian Electoral Commission for registration as a non-parliamentary political party, by then claiming 1,778 members. The Commission balked, telling the group it could not register while it continued to conceal its members’ identities. In May, Home Affairs Minister Tony Burke used the new Part 5.3B power to have the Governor-General declare White Australia a prohibited hate group. The Commonwealth alleges the party’s membership rolls are substantially the Network’s own under new branding – a serious allegation, made in written submissions and contested by the plaintiffs, not a fact either side has conceded.

White Australia went to the High Court, first seeking an interlocutory injunction to suspend the proscription until its constitutional challenge could be heard. Justice Jagot, hearing the matter in May as duty judge, applied the orthodox principle that courts defer to the presumed validity of legislation pending final determination of its constitutional validity. Chief Justice Gageler, ruling on a renewed application in June, went further and narrower: an injunction against the Commonwealth would not actually cure the harm the party said it faced, because the risk of criminal jeopardy for continuing members was inherent in the existence of an untested law and would remain whether or not the injunction was granted, and separately, the risk that Victoria’s Registrar of Incorporated Associations might cancel the party’s incorporation altogether was a risk only a different proceeding, against the Registrar, could address. The substantive case has now gone to a full bench of seven, over two days, on written and oral argument. Its barrister is the former Liberal MP Peter King, who took the brief because the profession’s cab-rank rule obliged him to – a detail worth remembering only because it is the same principle, in miniature, that the rest of this essay is about: a system that only extends its protections to people it likes has already stopped being a system of principle.

Three grounds – but only one is genuinely live

White Australia’s writ pleads invalidity on three grounds: that the Commonwealth lacked legislative power to enact the scheme at all, contrary to the 1951 decision in Australian Communist Party v Commonwealth; that it burdens the implied freedom of political communication; and that it vests punitive power in the executive in breach of the separation of judicial power under Chapter III. A win on any one would bring the scheme down. But the three are not equally strong, and treating them as interchangeable – as much of the commentary around this case has – obscures where the real contest lies.

Start with the weakest, because it is instructive precisely for being weak. The Chapter III argument says that in proscribing a group without a prior judicial finding, the minister is functionally adjudicating past conduct and imposing punishment – a power the Constitution reserves to courts. It is a serious argument in form, but it runs into an immediate structural problem: nobody is convicted, fined or imprisoned by the ministerial declaration itself. The declaration only defines a class. The offences that follow – continuing to be a member, to direct, to fund – are ordinary criminal offences, charged in the ordinary way, tried before an ordinary court, with the ordinary burden of proof and the ordinary right to contest every element including, presumably, whether the accused was in fact a “member” at the relevant time. That is close kin to the architecture Commonwealth terrorism law has used for two decades to proscribe organisations under the Criminal Code’s terrorist-organisation regime – an executive listing that supplies a definitional element of a later offence rather than itself convicting anyone – and analogous schemes have generally survived Chapter III challenge for exactly that reason. White Australia can argue the analogy is imperfect, that here the minister is also, in substance, making a finding about past wrongdoing no court has tested, and that the stakes for an entire political party are of a different order to an individual’s membership charge. But this is the ground on which the government is most comfortable, and with reason: it is defending a structure the Court has broadly tolerated before, not inventing a new one.

The Communist Party ground and the implied-freedom ground are different, and each is live for a reason specific to how this scheme is built, not because a sympathetic bench might simply feel that neo-Nazis have suffered enough scrutiny.

Who finds the facts – the ground the government should fear most

Here is the feature of Part 5.3B that gives the first ground its teeth, and it is not really about communism or Nazism at all: it is about who gets to decide, for constitutional purposes, that the facts required to enliven a head of legislative power actually exist.

The Commonwealth cannot legislate at large. It needs a specific head of power in section 51, and here it has reached for the external affairs power, arguing that Part 5.3B implements Australia’s obligations under international instruments requiring states to prohibit advocacy of racial hatred and to ban organisations that promote and incite racial discrimination. That is a real, previously tested head of power – the High Court has read it broadly before. But there is a catch built into using a treaty-implementation power to justify a domestic proscription scheme: the law has to actually track what the treaty requires, and Part 5.3B, read closely, does not make it an offence to advocate racial hatred as such. It bans membership of a group the minister is satisfied has engaged in a much broader and more loosely defined category of “hate crime” conduct – conduct that need not have been prosecuted, need not have been unlawful when it occurred, and need never be tested by a court before the ban takes effect. Whether that gap between what the treaty requires and what the Act actually proscribes is close enough to count as implementation, or whether the justices take a stricter view of conformity, is one of the two questions on which this ground turns.

The second, and the one with the sharper edge, is exactly the defect the High Court identified in 1951. When the Menzies government tried to dissolve the Communist Party, its Act did not ask a court to find that the Party was engaged in subversion – it simply recited that finding into the statute itself and asked everyone, including the judiciary, to accept it as true. The High Court said no: Parliament cannot bootstrap a law into a head of constitutional power merely by asserting the facts that would place it there, because that would let Parliament will its own power into existence by say-so. Part 5.3B has the same structural feature, only relocated to the executive rather than the legislature. It is the minister, not a court, who is satisfied – on no evidentiary standard higher than reasonable grounds, with no hearing and no cross-examination – that a particular group’s conduct falls within the category the external affairs power is being used to reach. If that satisfaction is treated as conclusive, the scheme is doing exactly what the 1951 Act tried to do: using an executive assertion of fact to manufacture the constitutional foundation for the law, rather than letting a court test independently whether the facts genuinely bring the case within power. This is why serious constitutional lawyers rate this ground, not the Chapter III ground, as the one most likely to trouble the bench – and why the government’s best answer to it is not a doctrinal one at all, but an evidentiary one: showing, on the actual record before the Court, that White Australia’s conduct so plainly and objectively falls within the treaty category that the minister’s satisfaction adds nothing the Court could not have found for itself.

The implied-freedom ground sits close behind it, and for readers unfamiliar with the doctrine it is worth being precise about what “burden” means here, because the government does not need to show the law imposes no burden at all – political parties exist to communicate about politics, and a law extinguishing one obviously burdens that communication. Under the structured proportionality test the Court has used since the mid-2010s, the government has to show the burden serves a legitimate end, is suitable to that end, is necessary in the sense that no less-restrictive alternative would do the job as well, and is adequate in the balance struck between the burden and the benefit. The High Court drew the relevant substantive line last year, in Farmer v Minister for Home Affairs [2025] HCA 38 (decided 15 October 2025), holding that laws of this kind can legitimately target conduct that risks material harm to a community or part of it – actual dissension, intimidation, vilification or strife on a significant scale – but cannot legitimately be aimed merely at conduct that hurts feelings or offends sensibilities, however justified that offence might be. Whether “hate crime” conduct as defined in Part 5.3B sits on the material-harm side of that line, or slides, in its broader applications, toward the feelings side, is genuinely open, because the definition sweeps in preparation, planning and advocacy as well as completed acts, and advocacy is precisely the territory where the line between political speech and incitement gets hardest to hold. It is also the ground most likely to produce a split judgment rather than a clean win either way, because “necessary” and “adequate in the balance” are value-laden steps on which reasonable judges applying the same test have previously landed in different places.

Why the government’s defence is not merely reactive

None of this means the challenge should succeed, and it would be a mistake to let a tidy narrative about government overreach obscure how much ground the Commonwealth actually holds. If the evidentiary record shows what the government says it shows – that White Australia’s membership is substantially the National Socialist Network’s own, reconstituted under new branding specifically to claim protections a proscribed hate group would not otherwise enjoy – then the Court is not being asked to silence a party for its opinions. It is being asked whether a proscribed organisation can immunise itself from proscription by the simple expedient of filing new paperwork, which is a materially different and much easier question than the government’s critics have generally allowed. And the safeguards built into the scheme – ASIO advice, attorney-general sign-off, briefing of the opposition leader – are not decorative; they narrow the scheme from a naked ministerial fiat to something with at least the architecture of considered decision-making, and a court assessing proportionality is entitled to weigh that architecture rather than pretend the discretion is as unconstrained as its critics suggest.

Where the government is more exposed is precisely on the point raised above: procedural safeguards about who is consulted before a declaration are not the same thing as a court independently testing the facts said to enliven the power. The Commonwealth’s strongest answer to the constitutional-facts problem is therefore not “the minister was satisfied” but “the material before the Court, tested here and now, independently supports the conclusion” – and whether the government has actually put that material before the Court, rather than relying on the declaration’s own recitals, may matter more to the outcome than any of the abstract doctrinal argument about which head of power applies.

The politics underneath the doctrine

Strip away the case citations and there is a second contest running alongside the constitutional one, and it is entirely political. In May, Prime Minister Anthony Albanese expressed public confidence the new laws would survive challenge – a scheme drafted and passed in the five weeks between the Bondi Beach massacre and 20 January, while a rebranded vehicle for the very organisation it targeted was already sitting incorporated in Victoria. If White Australia wins, even narrowly, even only on the constitutional-facts point, that confidence will look, in retrospect, like the predictable cost of legislating at that speed after a national trauma. There is also a genuinely uncomfortable prize sitting at the end of a WAP victory: Thomas Sewell celebrating on the steps of the nation’s highest court and using it to launch the very political party the government tried to prevent. NSW Labor MP and former barrister Stephen Lawrence has flagged exactly this risk – that a legal win here functions as a propaganda gift regardless of how narrowly the Court frames its reasoning. That cost is real, and it is fair to weigh politically, even though it cannot factor into how the judges decide the case. The Court is not weighing whether White Australia’s politics deserve protection; it is working out how a law of this shape could be used by a government less careful than this one, because constitutional limits are written for the worst government imaginable, not the best one currently in office.

What a loss would actually mean – and for whom, concretely

This is the point at which a case about neo-Nazis stops being only about neo-Nazis, and it does not require reaching into the 1950s or 1970s to see why. Two other proceedings are moving through the courts right now that show exactly how a scheme built for this litigant reaches other people entirely.

The first is Queensland’s ban on the slogan “from the river to the sea,” now itself under constitutional challenge by pro-Palestinian protesters on implied-freedom grounds identical in structure to the argument White Australia is running this week – a state government reaching for the same basic tool, criminalising a category of political speech by administrative or statutory fiat, against a target whose politics could not be further from Sewell’s. The second is Pauline Hanson’s own application for special leave to appeal to the High Court against a Full Federal Court finding, handed down in July, that she racially vilified Senator Mehreen Faruqi under section 18C of the Racial Discrimination Act. Leave has not been granted and the argument has not been heard, but the ground foreshadowed is the same one White Australia is running this week: that section 18C, like Part 5.3B, rests on the external affairs power and Australia’s obligations under the same international convention against racial discrimination, and that it reaches further than that convention actually requires. A senator currently sitting in Federal Parliament is preparing to argue, in substance, that the treaty-conformity problem in this case applies just as much to the law used against her. Whatever this Court decides about implied-freedom proportionality and about how tightly a treaty-implementation power must track its treaty, the reasoning will not stay contained to White Australia; it is already being cited, argued and relied on by litigants with nothing else in common.

There is a more concrete link still, and it belongs to this case rather than to history. Sewell has been committed to stand trial in Victoria’s County Court, and several other Network members have pleaded not guilty to affray charges there, over an attack last August on Camp Sovereignty – the Kings Domain site established by Krautungalung elder Robbie Thorpe in 2006, which holds the repatriated remains of thirty-eight Aboriginal Victorians and has stood for two decades as a place of ceremony and a focus of First Nations sovereignty organising. Around forty men, many linked to the Network, stormed the camp carrying poles and pipes. That is not a hypothetical about what broad executive discretion might someday be turned against; it is the documented conduct of the very organisation this proscription power was built to reach, against the very kind of Indigenous-led political organising that a differently motivated government, in a different decade, might just as easily decide falls within its own definition of conduct threatening social cohesion. The proscription mechanism now before the Court does not distinguish, on its face, between an organisation that attacks a sovereignty camp and one that merely disrupts it with a placard campaign a minister finds politically inconvenient. That is precisely the discretion the implied-freedom doctrine exists to police, and precisely why getting its limits right in this case, against this litigant, matters far beyond this litigant.

None of this is an argument that White Australia should exist unmolested. If the Court upholds Part 5.3B, it will likely do so – as the Australia/Israel and Jewish Affairs Council’s Jamie Hyams has suggested – on narrow grounds tied to this scheme’s specific facts, not as a judicial blessing of proscription as a general instrument. If it strikes the scheme down, the more realistic prediction is not that neo-Nazi organising becomes untouchable but that the Commonwealth redrafts, more carefully, along the lines the judgment indicates – as it has done before after constitutional losses. Either way, the underlying policy problem, what a liberal democracy does about organisations built around racial violence, is exactly where it was before this case began, and now has to be solved in a form that survives contact with the Constitution rather than one that merely felt adequate to the moment it was written in.

Principle before ideology

There is a discipline here that commentary on this case, in both directions, has mostly failed to exercise. The constitutional questions and the moral ones are different questions, decided by different tests, and collapsing them serves nobody – least of all the next unpopular litigant whose rights actually deserve defending. Defending a legal principle for people whose views everyone finds reasonable costs nothing; the test of whether a society believes in the rule of law is what it does when the principle protects, procedurally, the people it despises.

The seven judges hearing this case are not deciding whether Sewell’s movement deserves a political future – on any reasonable moral accounting it plainly does not. They are deciding whether Parliament, moving fast after real trauma, wrote a law the Constitution actually permits, and specifically whether it can rely on a minister’s own satisfaction to establish the facts that place the law within power. A judgment is not expected for weeks or months, and there is little value in predicting it with false confidence: a bench spanning different eras of doctrine could easily split the difference, upholding the scheme against the Chapter III challenge while striking at the constitutional-facts point, or vice versa. That messiness would not be a flaw in the process; it is what principled adjudication looks like when doctrine this consequential is still being worked out in public, case by case, against litigants nobody would choose.

Whichever way it falls, the judgment will say more about the durability of Australian constitutional government than about the movement that happened to supply the test case. A win for the Commonwealth leaves the proscription mechanism standing for future use against future organisations – for better and for worse – and deserves scrutiny on exactly that basis rather than celebration simply because this defendant lost. A win for White Australia will vindicate nothing the party stands for; it will only confirm that a government moving too quickly, even after real horror and with the best of intentions, can hand the people it was trying to silence a victory they did nothing to earn on the merits. Either way, the task now belongs to the Court, and to nobody else – and that, finally, is exactly as it should be.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Introduction

Australia’s defence establishment speaks fluently in the language of dollars – billions committed to AUKUS, percentages of GDP promised to Washington and NATO alike, timelines for submarines that will not arrive until the 2030s at the earliest. This is a comfortable vocabulary, because it is measurable and because it can be debated in the safely technical terms of budgets and procurement schedules. It is also an incomplete vocabulary. The true cost of Australia’s deepening military partnership with the United States is not primarily fiscal. It is strategic and economic, and it is borne not by the Commonwealth’s ledger but by the nation’s exposure to two compounding risks: the possibility of entanglement in a great-power war with China, and the near-certainty that Beijing will treat the security relationship and the trade relationship as connected, whatever Canberra prefers to believe. Two-way trade with China was worth roughly A$326 billion in 2025, equivalent to about 11.4 per cent of Australia’s GDP, with exports alone contributing around 6.9 per cent. An exposure of that magnitude does not sit quietly alongside a strategic bet of this size. Whether the alliance remains worth the risk it now carries is not a question that can be answered by pointing to submarine tonnage or interoperability statistics. It is a question about what kind of country Australia is prepared to become, and what it is prepared to lose.

There is also a temptation, on both sides of this debate, to treat the question as though it had already been answered by history – as though the American alliance were simply a fixed feature of the Australian strategic landscape, inherited rather than chosen, and therefore not properly a subject for renewed scrutiny each time its terms deepen. That temptation should be resisted. The ANZUS Treaty of 1951 was itself a specific historical bargain, negotiated in specific circumstances, and every subsequent expansion of the practical content of the alliance – the establishment of Pine Gap in 1970, the commitment of forces to Iraq and Afghanistan, and now AUKUS and the associated force posture initiatives – has been a fresh decision made by an Australian government of the day, answerable to the Australian public for the consequences. AUKUS and the force posture changes that have accompanied it since 2021 are no different in kind, whatever their scale. They deserve to be assessed on their own merits, against the specific strategic and economic environment of the mid-2020s, rather than waved through as the automatic continuation of a settled historical relationship.

This essay sets out to take that question seriously, in both directions. It examines how far the partnership with the United States has moved beyond the defence budget and into the physical geography of Australian territory; how that integration plausibly raises the risk that Australia would be drawn into, or targeted during, a US–China war; how exposed the trading relationship with China actually is, and what history says about Beijing’s willingness to use that exposure as a lever; and finally, whether – accounting honestly for the deterrent case and for the resilience Australia has already shown – the balance of costs and benefits still favours the course the government has chosen.

The Partnership Has Grown Far Beyond Dollars

The public conversation about AUKUS and the US alliance has largely been conducted through the defence budget, and on that measure alone the shift looks modest. Australian defence spending as a share of GDP has crept from around 2.0 per cent at the time of the AUKUS announcement in September 2021 to roughly 2.05–2.1 per cent in the mid-2020s, with official projections reaching about 2.23 per cent by 2028–29 under the traditional accounting method. The government has since begun promoting a broader, NATO-style definition of defence spending – one that folds in items such as military pensions – which produces a more politically useful figure near 2.8 per cent of GDP, with an announced target of 3 per cent by 2033–34. In raw dollar terms the growth is real: the consolidated Defence portfolio, including the Australian Signals Directorate and the Australian Submarine Agency, has climbed from the mid-$40 billions around the time of the AUKUS announcement toward $59 billion and beyond. A meaningful share of that new money is being spent on infrastructure that will double as support for American operations – the upgrade of HMAS Stirling in Western Australia ahead of the Submarine Rotational Force–West from 2027, airfield improvements at RAAF Base Tindal and elsewhere in the north, and the pre-positioning of fuel, munitions and other stocks. It is worth being precise about what this spending is: these are Australian sovereign investments, funded from the Australian budget, not rent paid to Washington for the privilege of American protection. That distinction matters, because it is often elided in both directions – critics sometimes imply Australia is simply bankrolling American strategy, while proponents imply the spending is cost-free because it strengthens Australian capability. Both simplifications obscure the more important point.

The more consequential change is not fiscal but operational, and it has proceeded with far less public debate than the submarine program itself. The United States now has meaningful, growing access to a significant number of Australian facilities. Marine Rotational Force – Darwin, which began in 2012 with a company-sized contingent of around 200 personnel, has been built up toward a planned dry-season peak of roughly 2,500 – though actual deployed numbers have varied year to year and the presence remains seasonal, typically April to October, rather than a standing garrison. Rotations of B-52 and other bomber aircraft through northern Australia occur on an increasingly routine basis. From 2027, American and British nuclear-powered submarines will begin operating from Western Australian waters under the Submarine Rotational Force–West arrangement, well before Australia takes delivery of its own Virginia-class boats. Long-standing joint facilities – Pine Gap chief among them – have for decades already integrated Australia into American intelligence collection and, by extension, into American targeting cycles. Taken together, the practical effect of this decade’s changes is that Australian territory has become substantially more useful as a staging, logistics and sustainment hub for American forces in the event of a high-end regional conflict. This is the change that the dollar figures do not capture, and it is the change that does the analytical work in everything that follows.

It is also worth noting how this shift has occurred largely outside the ordinary channels of public parliamentary debate that one might expect to accompany a change of this strategic magnitude. Force posture agreements, status-of-forces arrangements, and the operational details of rotational deployments are negotiated at the level of the Australia–US Ministerial Consultations (AUSMIN) and through bilateral defence cooperation frameworks that are not, as a rule, subject to the kind of parliamentary ratification that would apply to a formal treaty. Individual elements – a new wharf at HMAS Stirling, an expanded taxiway at Tindal – are typically announced and funded as discrete infrastructure projects, each unremarkable in isolation. It is only when the projects are considered cumulatively, over the five years since the AUKUS announcement, that the scale of the transformation in Australia’s strategic geography becomes apparent. This is not evidence of concealment; the individual decisions have generally been publicly announced. It is, however, evidence that the aggregate strategic consequence of many individually modest decisions can outpace the public and parliamentary scrutiny that any one of them, alone, would attract.

Integration Raises the Conditional Risk Of War

None of this is to say that Australia has volunteered for war. It has not, and no serious analyst suggests the government intends to. The argument is narrower and more troubling: that this deeper physical and operational integration increases the conditional risk that Australia would be drawn into, or deliberately targeted during, a war between the United States and China – most plausibly a war fought over Taiwan, though other flashpoints in the South China Sea or the East China Sea cannot be ruled out. This is a claim about probability conditional on a US–China war occurring, not a claim that such a war is likely or imminent. But conditional risk is still risk, and it is precisely the kind of risk that a serious strategic ally is entitled – indeed obliged – to interrogate before it accepts more of it.

The first strand of evidence is a matter of military logic rather than observed behaviour, and it should be assessed on its own terms. Targeting doctrine treats infrastructure by its function, not by the political relationship of the country that hosts it: facilities that would materially support American operations in a Pacific conflict – submarine bases, bomber staging points, intelligence and targeting infrastructure – acquire military value as targets by that fact alone, independent of anything Beijing has said or done. Some former Australian officials and independent strategic analysts have argued more pointedly still: that AUKUS and the expanded American force posture are converting Australian bases into forward operating locations for the United States without giving Canberra anything resembling a reciprocal guarantee. Australia receives no NATO-style Article 5 commitment from Washington, no formal veto over how or when the facilities on its soil are used in a crisis, and no assurance that consultation would precede rather than follow an American decision to act. This is an inference about structure and function, not a claim about Chinese intent, and it would hold even if Beijing said nothing at all.

The second strand is different in kind and conflating it with the first overstates the case: it is China’s own political signalling, which speaks to intent and posture rather than to targeting logic. China has repeatedly and explicitly characterised AUKUS as an act of “bloc confrontation” incompatible with regional stability. In 2025 the People’s Liberation Army Navy conducted a circumnavigation of Australia that included live-fire exercises. This was a demonstration of reach and of political messaging – a signal that China is both willing and increasingly capable of projecting force into Australia’s near approaches – but it is not itself evidence of a targeting decision, and it should not be read as such. Signalling and doctrine point in a broadly similar direction, but they are different categories of evidence, established through different methods, and a careful reader should be able to tell which claim is being made at any point in this argument. Taken together, they suggest – without proving – that from Beijing’s perspective, Australia is no longer regarded as a distant and comparatively peripheral American ally, safely removed from the central Indo-Pacific contest, but is increasingly regarded as a component of American warfighting architecture in the Pacific.

It would be intellectually dishonest, however, to present only one side of this ledger, and any essay produced under the editorial discipline this publication holds itself to must resist that temptation. The deterrence case is not a fig leaf; it is a coherent strategic argument made in good faith by people who take the risk of war at least as seriously as its critics do. Australia’s own official strategic assessments – beginning with the 2020 Defence Strategic Update and reaffirmed in subsequent reviews – concluded, independently of AUKUS, that China’s rapid military modernisation had already eroded the ten-year strategic warning time that had underpinned Australian defence planning for decades. On this view, the American force posture in northern Australia is not what creates the danger; it is a response to a danger that Australian planners judged was already growing, and its purpose is to complicate Chinese military calculations enough that a war over Taiwan or elsewhere becomes less likely to be attempted in the first place, not more. Australia, moreover, retains the formal sovereign authority to decide whether and how it would participate in any American-led conflict; nothing in the current arrangements compels automatic Australian involvement, whatever the practical pressures of alliance politics might turn out to be in the event. It is also true that a degree of entanglement with American strategy is not new – Pine Gap has operated since 1970, and Australia’s intelligence and targeting integration with the United States predates AUKUS by half a century. And geography, though it now offers less insulation than in the past, still offers some: Australia sits further from the likely first-order battlespace than Japan, South Korea, or the Philippines. Both readings of the evidence contain truth. The expanded American presence simultaneously raises the stakes if a war does occur and is intended, by design, to make that war less likely to occur at all. A fair assessment cannot collapse this tension in either direction; it can only weigh it.

It is also worth situating Australia’s position within the broader regional picture, since the risk it has assumed is not unique even if it is newly significant. Japan, South Korea, the Philippines and, in a different sense, Taiwan itself all host or would host American forces in a Pacific conflict, and each faces a materially higher probability of direct attack than Australia does, given proximity alone. Australia’s distinctive vulnerability is not that it faces the highest absolute risk of attack among America’s Pacific partners – it plainly does not – but that its risk profile has shifted disproportionately given how peripheral its geography and, historically, its force posture had previously kept it. A country that moves from the periphery toward the centre of an alliance structure experiences the largest proportional increase in exposure, even if its absolute risk remains lower than that of the frontline states. This is the sense in which the AUKUS-era changes matter most: not because they make Australia the most exposed state in the Indo-Pacific, but because they represent the largest single change in Australia’s own risk profile in at least half a century.

The Economic Relationship that Would Be Put at Risk

If the security question is inherently uncertain – a matter of probabilities, deterrence theory and contested intelligence – the economic exposure that sits alongside it is not. It is measurable, current, and concentrated in specific, identifiable sectors, and it is worth starting there rather than with the national totals, because it is at the sector level that any retaliation would actually land. China has already demonstrated, within living memory, both the willingness and the institutional capacity to use economic pressure as a tool of political and security signalling against Australia specifically. Between 2020 and 2024, Beijing imposed tariffs and a range of formal and informal restrictions on Australian wine, barley, coal, lobster, timber, cotton and other exports, in the wake of the Morrison government’s call for an independent international inquiry into the origins of COVID-19 and its decision to ban Huawei from Australia’s 5G telecommunications network. Those measures were not subtle, and they were not disguised as ordinary trade disputes; Chinese officials and state media were explicit that the restrictions were a response to specific Australian political and security decisions. The pain was real and concentrated: wine exporters lost access to what had been their largest market virtually overnight, barley growers faced tariffs exceeding 80 per cent, and lobster exporters watched shipments left to spoil on the tarmac at Chinese airports. For the industries and regions directly affected, this was not an abstract geopolitical episode; it was a livelihood-level shock, and it is these same sectors – agriculture, wine, seafood, and, on the services side, education and tourism – that would most plausibly absorb the first and heaviest impact of any renewed measures.

This sector-level exposure sits inside a much larger aggregate relationship, and the scale of that larger relationship is what makes the sector-level risk worth taking seriously rather than dismissing as marginal. China remains Australia’s dominant trading partner by a wide margin, and no other market comes close to offering a substitute at anything like the same scale. In 2025, two-way goods and services trade between the two countries reached approximately A$326 billion, or about a quarter of Australia’s total trade with the world – equivalent to roughly 11.4 per cent of Australia’s GDP, with exports alone contributing around 6.9 per cent. Exports to China alone were worth around A$196 billion. Iron ore, natural gas, coal and other commodities form the structural core of a relationship that has been, in narrow economic terms, remarkably complementary: China’s manufacturing and construction sectors have needed precisely what Australia’s mining regions produce in abundance, at a scale and reliability few other suppliers can match. Education and tourism add further layers of interdependence – Chinese students and visitors have for two decades been among the largest single contributors to those sectors of the Australian economy. This is not, by any reasonable measure, a marginal or easily substitutable market. It is a relationship that has underpinned two decades of Australian prosperity, uninterrupted economic growth through the Global Financial Crisis, and a resource-export boom that few other developed economies could match. But it is worth being precise about where within that large aggregate figure the actual political risk sits: not evenly across the whole trading relationship, but concentrated in the specific sectors named above.

At the same time, intellectual honesty requires acknowledging that the aggregate macroeconomic impact of that episode was considerably smaller than many feared at the time, and this matters for how the current risk should be weighted. Iron ore – by far Australia’s largest single export to China and the commodity most exposed on paper – was conspicuously left untouched throughout the entire dispute, because Chinese industry’s dependence on Australian iron ore was, and remains, structural rather than discretionary; there was and is no comparably reliable alternative supplier at the volumes China’s steel industry requires. Because iron ore was spared, and because global commodity prices were unusually high through much of the period, independent estimates have generally put the net cost to the Australian economy at well under 1 per cent of GDP – painful for the specific sectors and regional communities affected, but not something that showed up as a visible dent in national growth figures. Affected exporters also proved more adaptable than expected, diverting significant volumes of wine, barley and other products to alternative markets in Europe, Southeast Asia and the Middle East, even if at lower prices and thinner margins. Trade between the two countries subsequently recovered and substantially stabilised from 2023 onward, following a resumption of high-level diplomatic contact under the Albanese Government. The episode, in other words, demonstrated real Chinese willingness to weaponise the trading relationship – but it also demonstrated real limits on how much damage Beijing was able, or perhaps willing, to inflict without harming its own economic interests in the process.

Linking the Two: A Fair and Significant Risk

Taken together, these two strands of evidence support a specific and defensible conclusion, one that avoids both alarmism and complacency: further tightening of Australia’s military integration with the United States plausibly increases the probability of renewed, and potentially more severe, Chinese economic retaliation, without making such retaliation certain or automatic. Beijing has already made clear, through its own official statements, that it regards AUKUS and the expanded American force posture in Australia as components of a broader containment strategy directed at China’s rise. A future crisis over Taiwan – even one that stops well short of open war – or a sharper deterioration in the broader US–China relationship, could plausibly produce a new and more severe round of sanctions, informal import restrictions, tourism and education advisories, or restrictions on Chinese investment into Australia. Because the underlying trade relationship is so large, the potential downside of such a response is economically significant in absolute terms even if it does not threaten the overall stability of the Australian economy. Specific export sectors – again most likely agriculture, wine, seafood, and possibly education and tourism rather than the iron ore trade that both sides have strong incentives to protect – would bear the initial and most concentrated cost. The national accounts would only register a serious effect if the disruption proved unusually broad, prolonged, or if it coincided with a downturn in global commodity prices that removed the cushion that softened the previous episode.

This conclusion should not be mistaken for a prediction that disruption is inevitable, and a publication committed to evidentiary precision over rhetorical force has an obligation to state the countervailing evidence with equal clarity. The two governments have, since the low point of 2020–22, generally managed to keep the security and economic relationships in separate diplomatic compartments, resuming ministerial-level trade dialogue even as strategic competition and military signalling have continued in parallel. The underlying commodity complementarity between the two economies remains structurally strong and is not something either government can simply legislate away. Australia has pursued a genuine, government-backed diversification strategy since 2020 – deeper trade ties with India, Indonesia, Japan, South Korea and the European Union among them – though with only limited success so far in meaningfully reducing China’s overall share of Australian trade, which remains close to a quarter of the total. Previous Chinese economic coercion did not succeed in altering Australian security policy in any of the areas it targeted; Australia neither reversed the Huawei ban nor withdrew its position on the COVID-19 inquiry, and the AUKUS announcement itself came only months after the trade dispute was at its most intense. Australian markets and policymakers, in the event, proved considerably more resilient than many analysts predicted in 2020. These facts meaningfully weaken the case that catastrophic economic retaliation is a likely or proportionate response to continued alliance deepening. They do not eliminate the risk; they discipline the estimate of its size.

Is the Alliance Worth It?

The American alliance delivers Australia capabilities that it could not plausibly generate on its own, on any realistic timeframe or budget: nuclear-powered submarines and the industrial and training base that comes with them, access to advanced military technology that Australia’s own defence industrial base could not independently develop, an intelligence-sharing relationship of extraordinary depth through the Five Eyes partnership, and – most fundamentally – the strategic backstop of the world’s most powerful military in a regional environment that Australia’s own government has assessed, through successive strategic reviews conducted by governments of both political persuasions, to be deteriorating. These are not trivial or symbolic benefits. They represent capability that genuinely could not be replicated through a more independent defence posture within any timeframe relevant to current strategic circumstances.

But the alliance also imposes costs that extend well beyond the additional billions committed in each federal budget, and this essay has tried to state them without either inflating or minimising them. It creates greater and more visible operational entanglement with American strategy in the Pacific than Australia has experienced at any point since the Vietnam War. It raises – conditionally, not certainly, but genuinely – the probability that Australian territory would be targeted in the event of a US–China war, because Australian territory would by then have become materially more useful to American war-fighting capability than it has been in previous decades. And it elevates the risk of economic coercion from the trading partner on which a substantial share of Australian national income still depends, a partner that has already shown, within the past five years, both the willingness to impose costly retaliation and – just as importantly – the practical limits of how much retaliation it is prepared or able to sustain. None of these costs is theoretical or speculative in the way that, say, a purely hypothetical future risk might be. Each of them has already been glimpsed directly: in the concentrated pain of the 2020–24 trade measures, and in the live-fire signalling of China’s 2025 naval circumnavigation of the continent.

“Worth it?” is not a question that can be answered against an atmosphere of vague alternatives; it requires a comparator with the same three elements as the AUKUS path itself – a force, a timeline, and a residual risk. The most seriously argued alternative on offer is not withdrawal from the alliance but a shift in emphasis toward a denial-based posture built around what Australia already knows how to build and buy. The force: an expanded fleet of conventionally-powered submarines rather than a wait for nuclear boats – whether an extended and enlarged Collins-class program or an off-the-shelf design from Japan, South Korea or Europe – paired with long-range land-based and maritime strike missiles, an enlarged mine-warfare capability, and a hardened, dispersed northern airbase network designed to survive rather than merely host a first strike. The timeline: such a force is broadly buildable within ten to fifteen years using existing shipyards and known technology, against the mid-2030s to early-2040s horizon before Australia’s own Virginia-class and SSN-AUKUS boats are realistically operational in numbers. That ten-to-fifteen-year estimate should itself be treated with some scepticism rather than taken as a clean advantage over AUKUS: Australia’s own submarine procurement history, from the Collins-class build to the collapsed Attack-class contract with France, is a history of schedule slippage and cost overrun, and there is no strong reason to assume a conventional build/buy program would run to time any more reliably than the nuclear one it replaced – while the boats themselves, whatever the timeline, would still carry a fraction of a nuclear submarine’s submerged range and endurance, a genuine operational shortfall for a navy that has to cover the distances the Australian and Indo-Pacific theatre demands. The residual risk: this posture forfeits the nuclear submarine’s endurance and the deep interoperability, intelligence access and extended deterrence that come bundled with hosting American forces, meaning Australia would carry more of its own regional deterrence burden with less powerful tools and a thinner intelligence picture. Nor does the reduced-target-value claim follow from the hull choice alone: swapping to conventional submarines while continuing to host the Submarine Rotational Force–West, the Marine rotations through Darwin, and the bomber and intelligence infrastructure elsewhere would leave Australian territory just as valuable to American operations as it is now, and just as exposed by the doctrine argument set out earlier in this essay – the lower targeting value this alternative promises is a function of hosting less American capability on Australian soil, not of which submarines Australia itself happens to operate, and a government pursuing this path would have to be honest about winding back SRF-West and the rotational presence, not merely about which shipyard builds its own boats. And the transition period would not be cost-free in the interim: stepping back from SRF-West and from the planned Virginia-class transfer represents a real reduction in Australia’s available underwater capability through the 2030s, when the conventional alternative would not yet be at scale and the current AUKUS boats would already be gone from the plan – a capability cut during the most strategically uncertain decade in this assessment, not simply a sovereignty gain deferred to a later, safer date. Neither path is free of risk; the honest comparison is between a higher-capability, higher-entanglement posture and a lower-capability, lower-entanglement one, not between a real option and an imagined one.

A genuinely balanced assessment does not require Australia to choose between the security relationship and the economic relationship, discarding one to protect the other, and it would be a mistake for this essay to pretend that such a clean choice is realistically available. Both relationships are simultaneously real, both are currently indispensable to Australian prosperity and security as those things are presently understood, and the honest conclusion is that they cannot be perfectly insulated from one another no matter how skilfully Canberra’s diplomats attempt the compartmentalisation. The expanding military partnership with the United States is, in the end, a strategic choice – one made openly by successive Australian governments, with full knowledge of the trade-offs involved – and it carries economic consequences that are neither hidden nor, on the evidence to date, disguised. Whether those consequences represent an acceptable price for the additional security the partnership provides depends on a set of judgments that reasonable, well-informed people can weigh differently: how one estimates the underlying probability of a US–China conflict occurring at all; how much genuine deterrent effect one attributes to the expanded American presence, as against the risk that the presence itself becomes a provocation; how resilient one judges Australian exporters and policymakers to be, based on their demonstrated performance in the 2020–24 episode; and how one weighs the denial-based alternative set out above against the current path, given that a more accommodating diplomatic stance toward Beijing is a third option that a great many Australians, across the political spectrum, would regard as riskier than either.

The debate over Australia’s alliance with the United States has too often been conducted as though the size of the defence budget were the only fact that mattered, or as though critics of the relationship were merely counting dollars while its supporters spoke of higher strategic principle. Neither framing survives close examination. The debate is properly settled – to whatever extent debates of this kind are ever settled – not by the budget line but by a harder and more honest question: whether the security gains that the alliance plausibly delivers are large enough, and certain enough, to outweigh the trade risk and the war risk that now sit, permanently and visibly, alongside it. That is a legitimate question. It remains, on the evidence available in 2026, an unresolved one – and Australians are entitled to have it debated as such, rather than settled by default through the accumulation of infrastructure, rotations and joint facilities that make the underlying choice progressively harder to reverse.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

I. What Was Actually Said, and What Was Not

On 2GB radio, One Nation leader Pauline Hanson said that native title has meant “a lot of people have been dispossessed of their lands in Australia.” That sentence is hers, on the record, and it is worth quoting precisely rather than summarising, because precision is the thing this debate has lacked. The broader argument reported alongside it – that the rights recognised in the High Court’s 1992 Mabo decision would be further entrenched by constitutional recognition, and that an eventual republic could then produce unintended consequences – is RMIT ABC Fact Check’s account of her position rather than a further verbatim quotation, and that distinction matters: it is fair to hold a public figure to her own words, and fair also not to put words in her mouth that were, in fact, a journalist’s paraphrase of a broader argument.

Both parts of the claim deserve to be taken seriously enough to test, because the underlying anxiety is not manufactured out of nothing. Mabo did change Australian land law. Wik did unsettle assumptions pastoralists had held for generations. Constitutional debates about recognition have run, on and off, for two decades, and it is not irrational for someone unfamiliar with the detail of extinguishment law to wonder whether any of it could eventually reach their own title. The honest response to that anxiety is not to dismiss it but to test it against what the law actually says. RMIT ABC Fact Check did exactly that, putting the dispossession claim to native title lawyers and constitutional scholars who spend their careers inside the Native Title Act. None of them could identify a single case, in the thirty-three years since Mabo, in which a native title determination has taken freehold land from its owner. Not one. That absence is the fact this essay is built around, and it is worth carrying forward through every section that follows: not as a rhetorical flourish, but as the empirical record against which the legal architecture described below can be checked.

What follows sets out why that absence is not an accident or a lucky run of cases, but the designed and unavoidable consequence of how native title, freehold, and Australia’s several statutory land-rights schemes actually interact.

II. What Mabo Actually Decided

It is worth being precise about what happened in 1992, because the dispossession claim only holds together on an imprecise account of it. Mabo v Queensland (No 2) did not create a new right and hand it to Aboriginal and Torres Strait Islander peoples as a gift of the state. It did the opposite. The High Court held that the fiction of terra nullius – the founding myth that Australia was, in law, land belonging to no one at the moment of British assertion of sovereignty – could no longer be sustained. The Court recognised that Aboriginal and Torres Strait Islander peoples held rights and interests in land and waters under their own laws and customs before 1788, and that where those rights had not been extinguished by subsequent government action, the common law would recognise them as continuing.

That is the entire conceptual core of native title: it is recognition of something that already existed, not the creation of something new. The Native Title Act 1993, passed by the Keating government in the aftermath of Mabo, gave that recognition a statutory framework – a process for making claims, a register, a tribunal, rules about “future acts” such as mining grants, and, critically, rules about what happens when native title collides with other interests already granted by government. It is in those extinguishment rules that the dispossession claim collapses, because they were drafted from the outset to protect exactly the class of landholder the claim treats as being at risk.

III. Freehold Was Never On The Table

Here is the mechanism, stated as plainly as the law allows it to be stated. A grant of freehold title – the ordinary private estate under which the overwhelming majority of Australian homes, farms and commercial premises are held – extinguishes native title completely and permanently. This was not a hopeful assumption read into the Native Title Act by sympathetic drafters. It was settled as a matter of High Court authority in Fejo v Northern Territory (1998), in which the Court held that once land has been validly granted as freehold, any native title over it is extinguished for good. It does not revive if the freehold estate later comes to an end and the land reverts to the Crown. Extinguishment, on this point, is total and one-directional.

The practical consequence is that a native title claim cannot be made over your house, your backyard, a suburban block, a private farm held in fee simple, or any other parcel already alienated from the Crown as freehold. Native title claims can only be made over land in which the underlying interest is still, in effect, held by the Crown – vacant Crown land, reserves, some categories of leasehold, and land the government has not disposed of by way of a freehold grant. This is precisely why native title in Australia is concentrated in the remote interior and the north, and almost absent from the freehold suburbs of Sydney, Melbourne and Brisbane. It is not that native title claimants have chosen not to assert rights over the cities. It is that the law makes such a claim impossible once freehold has been granted, and most of urban and peri-urban Australia was granted as freehold generations ago.

This is the single fact that dissolves the dispossession claim at its foundation. If a person’s title to their own home is freehold – and for the enormous majority of Australian homeowners, it is – then no native title determination, however it is decided, can touch that title. The claim that Mabo has “dispossessed” freeholders is not a matter of degree or nuance. It describes a legal event that is impossible under the law as it stands, and untouched by any proposal actually put to voters.

One caveat is worth stating honestly, because it is the kind of detail an argument built on a false mechanism, and its opposite, both tend to skip past. Extinguishing native title is not the same as extinguishing every legal interest Aboriginal and Torres Strait Islander peoples might have in a place. Commonwealth and state Aboriginal heritage legislation can still protect a sacred site or object located on freehold land, requiring approval before an owner disturbs it. That protection runs on an entirely separate legal track from native title – it survives native title’s extinguishment because it was never native title to begin with – and it does not confer any right to occupy the land, control who enters it, or reclaim title. A heritage approval requirement is a constraint on how freehold may be used in a specific, narrow circumstance; it is not a competing claim to the freehold itself. Collapsing heritage protection into “native title” is a different error from the dispossession claim addressed above, but it produces the same kind of confusion, and an honest account of the freehold/native title boundary should name it rather than let it pass.

IV. Crown Land, Pastoral Leases, and the Wik Decision

The more sophisticated version of the scare campaign – the one that surfaced most forcefully in the years immediately following the High Court’s 1996 decision in Wik Peoples v Queensland – concerns pastoral leases rather than freehold. Here the facts are more textured, and it is worth setting them out honestly rather than flattening them for rhetorical convenience, because a fair account of Wik is itself the best answer to those who invoked it, then and now, to frighten rural Australia.

Pastoral leases are not freehold. They are a form of Crown land tenure, granted for the purpose of grazing, under which the underlying title remains with the Crown. Before Wik, it had been widely assumed – including by many pastoralists and their advisers – that a pastoral lease, like freehold, extinguished any native title over the land. The Wik decision held otherwise. The High Court found that pastoral leases under the relevant Queensland legislation did not, of themselves, confer exclusive possession on the leaseholder, and that native title rights could therefore survive alongside a pastoral lease, coexisting with the pastoralist’s interest rather than being wiped out by it.

This is the moment the anxiety about pastoral leases took its modern political shape, and it is worth being honest about why it found an audience. Many pastoral families had operated for generations on the assumption that their lease was, in substance if not in name, equivalent to ownership. Wik unsettled that assumption. It was reasonable for pastoralists to want clarity about what coexistence actually meant in practice – what a native title holder walking onto leased land to hunt or to conduct ceremony would mean for a grazing operation, and what would happen if the two uses conflicted. That is a legitimate question, and the Howard government’s subsequent “ten point plan” and the Native Title Amendment Act 1998 were, whatever one thinks of their content, a response to a genuine practical uncertainty rather than to nothing at all.

But the resolution of that uncertainty was never in doubt in the way the public debate at the time implied. The Wik decision itself, and the amendments that followed it, settled a specific rule: where the rights of a pastoral leaseholder and the rights of native title holders come into conflict, the leaseholder’s rights prevail. Coexistence is not equality of outcome in a dispute. It is a legal formula under which the pastoralist continues to run stock, build fences, and manage the property according to the terms of the lease, and the native title holder’s rights yield wherever they would interfere with that activity. Native title holders were never given a power to exclude the pastoralist, to veto grazing operations, or to force a pastoral lease off the land. The lease was never at risk of being taken away by a native title claim. What was recognised was a considerably thinner right: that in the gaps where the pastoral use and the traditional use did not conflict – access for hunting, for ceremony, for maintaining a connection to country that did not interfere with grazing – both interests could exist on the same parcel at once.

Even that outcome, modest as it was, provoked a national reaction disproportionate to its content. Wik did not touch freehold at all; it concerned Crown leasehold specifically. It did not create a right to dispossess pastoralists; it created a rule of priority that favoured them in any conflict. And it applied only to the small subset of land where a pastoral lease of the relevant type existed over land where native title had not otherwise been extinguished. The gap between what Wik decided and what large sections of the Australian public came to believe it decided is, in miniature, the same gap on which the dispossession claim still rests: a technical, narrow, carefully bounded legal principle, translated in public discourse into a story about ordinary people losing their land to a claim they cannot resist.

V. The Bundle of Rights: What Native Title Holders Actually Have

Part of why the scare campaign persists is that native title is genuinely difficult to picture, because it does not map onto the single, familiar idea of “ownership” that freehold represents. Lawyers describe native title as a “bundle of rights” rather than a unified estate, and the contents of that bundle vary from one determination to the next, depending on the traditional laws and customs the claimant group can establish and on what the Federal Court finds has survived intervening history.

At the more limited end of the bundle sit rights that are recognisably about connection to country rather than control of it: the right to access land, to camp, to hunt, to fish, to gather traditional foods and materials, to conduct ceremony, and to protect sites of significance. These rights, on most determinations, coexist with other interests already on the land – a pastoral lease, a mining tenement, a public reserve – rather than displacing them. At the stronger end, in a smaller number of determinations, sits exclusive native title: a recognised right to control who enters the land at all, closer in substance to the exclusive possession that freehold confers, though still not alienable in the way freehold is.

What native title holders do not have, as a matter of settled law, is equally important to state plainly, because it is precisely the territory the dispossession claim leaves vague. They do not own the land in the fee-simple sense that a freeholder owns a suburban block. They cannot sell native title on the open market; it can only be surrendered to the Crown, typically through an Indigenous Land Use Agreement. They cannot mortgage it as security for a loan. They do not, in the overwhelming majority of cases, own the minerals beneath the land – a point addressed directly and unfavourably to broader native title claims in the High Court’s 2002 decision in Western Australia v Ward, which found no evidence of traditional law or custom extending to minerals or petroleum, and held that in any event State legislation vesting minerals in the Crown had extinguished any such right had it existed. And they do not have a veto over mining or development generally; what they have, where a proposed mining grant qualifies as a “future act” under the statutory scheme, is a right to negotiate – a process requiring good-faith negotiation for a minimum period, with the National Native Title Tribunal empowered to determine the outcome if agreement cannot be reached, but with no power in native title holders to simply refuse.

This is a legal interest considerably thinner than the freehold estate it is so often measured against, in almost every respect that matters to the anxiety attached to it. It cannot be used to take a house. It cannot be used to take a farm held in fee simple. It cannot even be used, on its own, to stop a mine or evict a pastoralist. What it can do – the entire, unglamorous truth of it – is allow a group that can prove unbroken traditional connection to a specific parcel of largely remote Crown land to have that connection legally acknowledged, to continue practices that predate the nation by tens of thousands of years, and to be consulted, compensated, or negotiated with when government or industry seeks to alter that land.

VI. How Much of the Map this Actually Covers

Part of the folklore that has grown up around native title concerns its scale, and the figures are worth setting out carefully because they are so often mangled in both directions – sometimes to inflate the anxiety, sometimes, in a different political conversation, to inflate a sense of Indigenous land control that does not match reality either.

As at mid-2025, registered determinations covered a little over half of the Australian landmass – a figure that includes areas where the Federal Court found that native title does not exist as well as areas where it does. Strip out the negative determinations and the true figure for land where native title has been found to exist falls to roughly 46 per cent of the continent. Of that whole landmass, only about 15 per cent is exclusive native title – the stronger form carrying a right to control access – with the remaining 31 per cent or so held as non-exclusive native title: the thinner bundle of coexisting rights described above, sitting alongside pastoral leases, reserves, and other Crown interests rather than displacing them.

That coverage is also wildly uneven across the country, in a pattern that itself tells the real story. Western Australia, with its vast tracts of Crown land in the Pilbara, the Kimberley and the interior, accounts for the great bulk of the national figure – determined native title exists over the enormous majority of that state’s land mass in some regions. New South Wales and Victoria, by contrast, sit in the low teens or lower, precisely because those states were settled and alienated as freehold earliest and most comprehensively. The Australian Capital Territory has no native title determinations at all. This distribution is not an accident, and it is not evidence of some uncontrolled expansion of Indigenous land claims into settled Australia. It is the direct, mechanical consequence of the rule described in Part III above: native title can only exist where freehold has not already extinguished it, and freehold was granted, as a matter of colonial and post-colonial history, precisely in the places most Australians live.

None of this land mass should be confused with a broader idea of “Aboriginal ownership of Australia.” Native title, undetermined claims, Indigenous Land Use Agreements, and statutory land-rights tenures are frequently and misleadingly added together in public commentary to produce headline figures – sometimes suggesting three-quarters of the continent is under Aboriginal control – that mix determinations that native title exists with determinations that it does not, with claims not yet decided, with contractual agreements that carry no title at all. The more sober estimates, distinguishing land actually owned or controlled by Indigenous corporations or held under exclusive tenure, put the figure at somewhere in the range of 16 to the high 20s per cent depending on definition – a substantial and hard-won recognition of connection to country, but nothing resembling the sweeping transfer of ownership that either side of the debate sometimes implies it to be.

VII. The Statutory Schemes Left Out of the Account

There is a further complication that flattening the issue into “Mabo versus property owners” erases entirely: native title is not the only, or even the strongest, form of legally recognised Indigenous land interest in Australia. Since the 1970s, several jurisdictions have built statutory schemes that grant title outright, rather than merely recognising what has survived colonisation, and these schemes bear no resemblance to the fragile bundle of rights described above.

The most significant is the Aboriginal Land Rights (Northern Territory) Act 1976, which grants inalienable statutory freehold – held by Aboriginal Land Trusts for the benefit of traditional owners and administered through Land Councils – over close to half the Northern Territory’s land mass. This is a genuinely strong title: exclusive possession, the ability to lease the land, and, critically, a requirement that mining exploration cannot proceed without the informed consent of the relevant Land Council, backed by a share of royalty equivalents paid as of right into an Aboriginals Benefit Account. Traditional owners under this Act have something close to a veto over exploration that native title holders, under the Wik and Ward line of authority, simply do not possess. Queensland and New South Wales operate their own, differently structured statutory schemes – the Aboriginal Land Act and Torres Strait Islander Land Act in Queensland, and the Aboriginal Land Rights Act in New South Wales, the latter compensatory in character and not dependent on proof of unbroken traditional connection at all.

The reason this matters to an honest assessment of the dispossession claim is that it exposes the trouble with treating “native title” as a single, undifferentiated threat to property. The strongest Indigenous land interests in the country are not native title at all; they are parliamentary grants, made by elected governments, through ordinary legislation. And it should be said plainly, because it is the caveat the whole debate tends to skip: none of these schemes, any more than native title, contain a mechanism for taking land from an existing freehold owner. The Aboriginal Land Trusts under the ALRA hold land the Northern Territory government transferred to them from Crown land and former reserves. Queensland’s land trusts and the NSW Land Councils likewise received transferred Crown land, not compulsorily acquired freehold. Every one of these titles – stronger than native title, exclusive, inalienable, backed by consent rights over mining that native title holders do not have – was built on the same foundation as native title itself: land the Crown still held, not land already granted away.

VIII. Recognition and a Republic: A Chain With No Links

The recognition-and-republic argument deserves to be addressed on its own terms, distinct from the dispossession claim, because it is a different kind of claim – not a factual assertion about what has happened, but a prediction about what constitutional change might eventually enable. It fails for a more specific reason than that predictions are hard: none of the proposals actually put to the Australian public touch the mechanism that would need to change for the prediction to hold.

Constitutional recognition, in every form seriously proposed over the past two decades – a preambular acknowledgment, a substantive statement of recognition, or the constitutionally enshrined Voice to Parliament put to and rejected at the 2023 referendum – operates at the level of acknowledgment and, in the Voice model, a non-binding advisory function directed at the Parliament and Executive. None of these proposals purports to alter the Native Title Act’s extinguishment rules. None touches the Fejo principle that freehold extinguishes native title permanently and without revival. None creates a mechanism by which a native title claim could be pressed against land already held in fee simple. Whatever recognition would do – and reasonable people disagree, honestly, about how much or how little that is – altering the settled law of extinguishment is not among the things any actual proposal contains.

A republic changes the structure of the head of state. It does not, without a further and entirely separate body of constitutional change that no one has proposed, alter property law, native title law, or the extinguishment principles settled in Mabo, Fejo, Wik and Ward. For the recognition-and-republic argument to work as a warning about property rather than as a rhetorical gesture, it would need to identify a specific provision, in a specific proposal, that does the specific work of reopening extinguished title. That link has not been supplied, in this debate or in the two decades of recognition debates that preceded it, because the law as it stands and every proposal put to the public gives no material to build it from.

IX. The Absence that Does the Work

Set the two claims side by side and the same fact answers both. Thirty-three years is long enough for a legal mechanism to reveal itself if it exists. Native title determinations now cover close to half the continent. Wik has been settled law for three decades. Recognition has been debated, in various forms, for twenty years, and a specific model was put to a national vote in 2023. If native title, or the momentum behind recognition, carried any capacity to reach freehold, some instance of it would by now be on the record – a single determination, a single court finding, a single Land Council or Land Trust acquisition – in which a freeholder’s title was taken. RMIT ABC Fact Check went looking for exactly that instance, asking the practitioners best placed to know, and found none.

That absence is not a gap in the evidence waiting to be filled. It is the predictable output of the rules examined above, each operating independently and each pointing the same way: the Fejo principle that freehold extinguishment is total and final; the Wik priority rule that resolves conflict in the leaseholder’s favour; the narrow, negotiation-only content of the future-act regime confirmed in Ward; and the fact that every statutory land-rights scheme, however strong the title it confers, was built on land the Crown already held rather than land already granted away. Four separate legal mechanisms, developed at different times for different reasons, all converge on the same boundary. A thirty-three-year absence of contrary cases is what that convergence looks like in practice, and it is a more solid basis for confidence than any assurance a commentator could offer on its own.

X. What Actually Sits on the Line

Native title and freehold are not two versions of the same right, competing for the same ground. Freehold is the ordinary, transferable, mortgageable, inheritable private estate that underlies the overwhelming majority of Australian homes and farms, and it extinguishes native title wherever it is granted, permanently and without revival. Native title is the common law’s recognition of rights that Aboriginal and Torres Strait Islander peoples held under their own laws before 1788 and have maintained since, confined by its own legal architecture to land the Crown has not already alienated as freehold, thinner in content than freehold in almost every respect that matters to ownership, and incapable – as a matter of the law’s own design, not as a matter of political restraint – of taking a house, a farm, or a backyard from anyone who holds it in fee simple.

A claim that a lot of people have been dispossessed by Mabo, and a prediction that recognition and an eventual republic could compound that dispossession, both ask Australians to fear a mechanism that the law’s own architecture forecloses. The disagreement worth having – about recognition, about a treaty process, about the distribution of political voice – can be conducted honestly without the property fear standing in for it. The map of Australian land tenure is complicated, unevenly distributed, and still shaped by the extinguishing sweep of nineteenth- and twentieth-century freehold grants. What it is not, on any reading the law will support, is a map on which anyone’s backyard is at risk.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Blak and Black  ·  originally published 2011, updated September 2026

Fifteen years ago I wrote about a can of worms: Tony Abbott and Bob Brown, of all people, discovering on behalf of white farmers in the Hunter and the Liverpool Plains a principle neither had ever troubled to extend to the Yindjibarndi of the Pilbara – that a person ought to have some say over who digs up the ground beneath them. It was a hearing, not a right to refuse, and it should be said plainly this early: nobody in this argument, then or now, actually holds a veto over resource extraction. The double standard was crude enough, at the time, to embarrass even the Coalition. Fifteen years on, the embarrassment has gone. The double standard has not. It has simply been formalised, litigated, quantified in dollars, and reduced, in both of the cases below, to the same question: who has to sit down at the table, and who gets to walk away from it for less than a deal would have cost.

It is worth returning to both fights – the Pilliga and the Pilbara – to see exactly how.

The Pilliga, Cleared to Proceed

Santos’s Narrabri Gas Project, the very coal seam gas push the Lock the Gate campaign was mobilising against in 2011, took another decade to resolve. The NSW Independent Planning Commission approved 850 wells across 95,000 hectares of the Pilliga in 2020, subject to more than 130 conditions; federal environmental approval followed the same year. NSW Farmers fought it to the end, warning of aquifer drawdown and uninsurable liability. So did the Gomeroi people, whose native title claim overlaps the project area and who told the Commission in terms I used in 2011 almost verbatim: the Pilliga is Gomeroi land.

The farmers’ objection and the Gomeroi objection were, by 2025, running on entirely different legal tracks – and that is the point. Where the project required agreement from a Gomeroi native title party under the Native Title Act’s “right to negotiate” regime, and no agreement was reached, the matter went to arbitration before the National Native Title Tribunal. In May 2025 the Tribunal ruled the petroleum leases could be granted over Gomeroi objection: acknowledging the project’s emissions were a “serious detriment” to the climate, it nonetheless found the case for domestic gas-supply reliability, backed by a condition confining the gas to the domestic market, delivered a net public benefit that outweighed the objection. Santos still needed a pipeline approval and a final investment decision before the project could actually proceed – this was a native title clearance, not a finished mine. But the right-to-negotiate fight itself was over, decided by a stacked weighing of public-interest factors the Gomeroi had no vote in.

And Narrabri is not an outlier. In more than three decades of the right-to-negotiate regime, the National Native Title Tribunal has determined that a proposed mining or petroleum act must not proceed only a handful of times, against many hundreds of applications. Almost every future act it has ever been asked to arbitrate, it has allowed – sometimes with conditions attached, occasionally after further delay, but allowed. Narrabri is not the system failing the Gomeroi. It is the system doing exactly what it was designed to do.

The Pilbara, Quantified

The Yindjibarndi story I mentioned only in passing in 2011 has since run almost its full course, and it is the more instructive of the two – not because native title failed in the abstract, but because of what happened when one company chose not to deal with it the way its neighbours do. Fortescue Metals Group began mining its Solomon Hub in the Pilbara in 2012 without an agreement with the Yindjibarndi Ngurra Aboriginal Corporation, dealing instead with a rival, company-aligned corporate structure. In 2017 the Federal Court settled the underlying question: the Yindjibarndi hold exclusive native title over the area, meaning – in Justice Rares’s phrasing – that even a stranger needs a Yindjibarndi elder’s permission to be there at all. Fortescue kept mining regardless, saying the finding had no bearing on its tenure.

What followed was the compensation case. On 13 May 2026, Justice Stephen Burley handed down judgment: $150 million for cultural loss – the largest native title compensation sum in Australian history – plus $136,757 for economic loss and a further $217,152 in compound interest on that amount, calculated under the formula the High Court had set down in the Timber Creek case. Call it about $354,000 in total for the economic component. What Fortescue has taken from the site since mining began is harder to pin to one number than the cultural-loss figure is; reported estimates of cumulative revenue from Solomon Hub range from roughly $50 billion to $80 billion depending on what is counted and when. On any of those figures, the economic award is a rounding error against it. The Yindjibarndi received no ongoing royalties from the mine’s production, and in late August 2026 both the Yindjibarndi and the West Australian government lodged appeals – YNAC’s grounds including the Court’s rejection of a royalty-based measure of economic loss, and its calculation of freehold value by reference to the land’s pastoral rather than mining use, seeking a figure closer to $1.8 billion in total.

Fortescue’s own account complicates the no-agreement story in one respect worth stating plainly. It did, eventually, put a substantial commercial package to the Yindjibarndi: an earlier 2012 offer capped at roughly $4 million a year had already been rejected, and late in 2023, immediately before the compensation trial opened, the company returned with a package reported at around $376 million over the life of the mine, including an immediate $90 million cash payment. YNAC declined that offer too, choosing to press on to judgment and argue instead for a royalty-based measure tied to production value. What the statute delivered – $150 million for culture, roughly $354,000 for economics – fell well short of the package that had been on the table. That comparison does not rescue the fallback rule; if anything it sharpens this essay’s point from the other direction. Declining to negotiate cost the resourced party less than a deal would have. Relying on the statutory measure instead of a real commercial one cost the title holder more than accepting would have. The default is cheap for whichever side ends up stuck with it.

Minerals Were Never on the Title

It is worth being precise about what exclusive native title actually is, because it is not ownership of what is under the ground. In Australia, minerals and petroleum are – with rare historical exceptions – reserved to the Crown regardless of who holds the surface, a rule that predates native title by the best part of a century and applies to freeholders just as much as to the Yindjibarndi. That is exactly why the Yindjibarndi could not simply point to their exclusive title and claim a share of the iron ore: no such share exists on the statute book. They had to argue for a royalty-style measure, pitched at around one per cent of production value, because that figure describes what comparable Pilbara agreements pay, not what native title entitles anyone to as of right. What native title can do is set a price for access, through negotiation – which is exactly the mechanism the Solomon Hub story shows a resourced proponent is free to decline.

What Private Ordering Actually Produces

That royalty-style figure is not a fantasy – it describes something real that happens elsewhere in the same industry. Fortescue itself says, in its own words, that it “has agreed to and pays financial compensation under” seven other native title agreements across the Pilbara. Take the company at its word and native title, on its own ledger, is a workable bargaining chip seven times over. The Solomon Hub story is not a story about that chip being worth little. It is a story about what happens when a company simply declines to play it: the statute’s fallback position turns out to reward the refusal.

The Default is the Discount

That fallback is the argument of this piece. None of what follows requires native title to be an inherently lesser form of title – Fortescue’s own seven other Pilbara agreements are proof enough that it isn’t, once someone actually sits down to bargain over it. What the Native Title Act hands a resourced proponent instead is a walk-away price, and that price is cheap. Decline to negotiate, absorb however many years of litigation it takes, and the fallback delivers a fraction of freehold land value plus a discretionary sum for cultural harm – not a share of anything extracted – through a tribunal that, as Narrabri confirms, will almost certainly say yes regardless of the objection put to it. The problem Solomon Hub exposes is not the estate. It is a default cheap enough to make refusing to bargain the rational move.

A Right to be Outvoted

The mechanism is straightforward. The Native Title Act’s future-act regime gives registered native title parties a right to negotiate in good faith over mining and petroleum leases, and, if that fails, a right to have the National Native Title Tribunal decide instead. It is the second right that matters here, because the Tribunal so rarely says no. Once a proponent can be reasonably confident that a failed negotiation still ends in approval, good-faith bargaining stops being the only route to the same outcome. It becomes the more expensive one – optional, and easily declined by anyone willing to wait the process out.

The Ceiling Underneath

The High Court’s 2019 ruling in Northern Territory v Griffiths – the Timber Creek case – set the formula behind the fallback, and it is more generous to exclusive native title than it might first appear: non-exclusive rights are valued at 50 per cent of the freehold value of the land, the figure the High Court settled on after a trial judge’s 80 per cent and a Full Federal Court’s 65 per cent both failed to survive appeal, while exclusive native title – the kind the Yindjibarndi hold – is treated as tracking freehold value in full. That looks like parity, until the question becomes freehold value of what. Part of YNAC’s own appeal turns on exactly this: that the freehold figure applied at Solomon Hub was calculated on the land’s pastoral use, not its standing as one of the richest iron ore deposits in the Pilbara. A formula that pays one hundred per cent of a pastoral valuation is not a discount on paper. It produces a discounted result all the same, because the thing being valued was never the ore, and the industry’s defence of the formula – that the Act was drafted in 1993 to balance an unmapped, historically contested title against real sovereign risk for developers – does not change what it pays out when, as at Solomon Hub, it becomes the only thing on offer because one side chose not to negotiate anything better.

A Second, Cheaper Permission

The default rule is not the only mechanism capable of undercutting a fair outcome, and it is worth a brief aside. Rio Tinto’s 2020 destruction of the 46,000-year-old Juukan Gorge rock shelters proceeded lawfully under a Western Australian heritage consent obtained years earlier, one that operated independently of the Puutu Kunti Kurrama and Pinikura people’s live native title relationship with the company. An existing agreement did not stop a separate, older, cheaper legal permission from running underneath it. Reform followed the outcry; a substantially watered-down replacement Act followed the industry pressure within three years.

Underfunded on the Only Side that Bargains

None of this explains why Solomon Hub happened, but it explains why walking away from the table was a viable strategy in the first place. Native title, held communally through a prescribed body corporate, generally cannot be sold, leased at full commercial value, or mortgaged to fund a fight the way freehold can. The party across from Fortescue was typically a volunteer board without in-house legal, financial or technical capacity to match a company prepared to fund a decade of litigation while continuing to mine throughout it. A negotiating partner that cannot easily outlast you is one it will always be cheaper to out-wait.

A Delay Long Enough to Matter

The proof burden compounds the same problem rather than causing it. Reaching a determination at all requires proving continuous connection under traditional law and custom back to before sovereignty – at Solomon Hub, a process that ran from the early 2000s to the 2017 determination, by which point Fortescue had already been mining for four years. Facts on the ground do not wait for a court to catch up with them, and once ore is gone, no later determination, however strong, can do anything but price the taking after it happened. The delay does not make native title lesser. It hands an early mover a long head start on the cheaper option.

The Same Ledger

Fifteen years ago the gap was that one side of this argument got a hearing the other had been denied for generations. That gap has closed: the Yindjibarndi have the determination, the judgment, the largest native title compensation sum in the country’s history. What has taken its place is not equality but a cheaper way to lose. Fortescue’s own seven other Pilbara agreements, and the $376 million it eventually put in front of the Yindjibarndi, both show what the negotiated alternative looks like. Solomon Hub shows what a resourced proponent gets instead when it declines that alternative and a title holder is left to rely on the statute: a tribunal that almost never says no, a formula that pays out on a pastoral valuation and nothing for the ore, and a head start measured in years before any of it can be enforced. Fix the default – make refusing to negotiate cost more than negotiating would have – and native title does the rest of the work itself. Leave it as it is, and the ledger this piece opened with in 2011 will keep balancing exactly the way it always has.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

When Blak and Black first started sixteen years ago, one of the earliest subjects taken up on this blog was the Pacific Islands Forum and the late Julian Moti, the former Attorney-General of Solomon Islands and a good friend of the family. Julian understood the Forum, and Australia’s place inside it, better than almost anyone I have known, and it is worth returning to that friendship this week as the 55th Leaders’ Meeting concludes in Koror, Palau.

It was Julian, in fact, who first suggested I take a long-running Indigenous administrative-justice matter – concerning the former Indigenous Commissioner for ACT Revenue – to the UN Human Rights Committee. That submission is still pending, and it belongs properly to a different piece than this one; I mention it only because it is part of why the question of who gets heard by which international body has never stopped mattering to me.

What Julian also gave me, more directly relevant to what unfolded in Palau this week, was an early understanding of the mineral wealth beneath Pacific waters – the seabed reserves that now sit near the centre of both this year’s Forum communique and the wider, undeclared trade contest between Australia and China for regional influence. That is the thread this essay follows: what happened in Palau, who was missing and why it matters, how Australia’s own bilateral diplomacy sits beside the multilateral table it helped build, and how minerals, markets and missile tests now sit underneath all of it.

Consensus as Shield and Vulnerability

The Pacific Islands Forum was established in 1971 as the South Pacific Forum, renamed in 2000 to reflect growing membership north of the equator, and today comprises eighteen full members: Australia, New Zealand, Papua New Guinea, Fiji, Samoa, Tonga, Vanuatu, Solomon Islands, Kiribati, Tuvalu, Nauru, Palau, the Marshall Islands, the Federated States of Micronesia, the Cook Islands, Niue, French Polynesia and New Caledonia. Its founding purpose was modest but important: to give small, often newly independent, island states a collective political voice that no single one of them could muster alone against the interests of larger powers, including their former colonial administrators.

Australia’s membership has always sat awkwardly inside that founding logic. It is, on the one hand, a founding member with a genuine claim to Pacific identity through geography and history. On the other, it is one of the two largest economies and militaries at the table, and its interests – trade routes, fisheries, undersea cables, and increasingly the strategic contest with China – do not always align with the priorities of low-lying atoll states whose primary and existential concern remains climate change and sea-level rise. The Forum has managed that tension for half a century through what is known as “the Pacific Way”: a consensus-based diplomatic culture that privileges dialogue, patience and face-saving over binding votes or coercive pressure.

That culture is a genuine shield. China’s arrival as a serious regional actor has placed it under pressure it was never designed to absorb, but the shield has held before. Beijing’s interest in the Pacific snapped into focus in 2018, when reports emerged that it was seeking to establish a military base in Vanuatu, and hardened further in 2022, when a leaked draft security agreement with Solomon Islands raised the prospect of Chinese security forces being deployed inside the region. Later that year China’s foreign minister, Wang Yi, toured several Pacific capitals seeking support for a sweeping regional security and cybersecurity pact; he failed to secure it, largely because the Forum’s consensus requirement gave sceptical members room to withhold agreement without confronting China alone. But the same consensus requirement is also a vulnerability, because it can be worked from the outside as easily as it protects from within – a single absent or persuaded member can quietly change what the Forum is able to say. Which of those two tendencies dominated in Palau this year is the question the rest of this essay tries to answer.

What Happened in Palau

Palau’s President, Surangel Whipps Jr, opened the 55th Leaders’ Meeting by taking over the Forum chairmanship from Solomon Islands with a pointed call for Pacific unity and for the region to retain control of its own agenda. Partners were welcome to travel alongside the Pacific, he told delegates, but they did not get to choose where the region was headed. It set the tone for a meeting that spent much of its four days managing absence rather than presence.

By the opening ceremony on 1 September, it was already clear this would be a leaders’ meeting conspicuously short of leaders. Five of the bloc’s eighteen members sent deputy ministers or senior officials rather than heads of government: Kiribati, whose President Taneti Maamau stayed away; Vanuatu, whose Prime Minister Jotham Napat did not attend; Samoa, in the absence of Prime Minister La’auli Leuatea Schmidt; Fiji, whose Prime Minister Sitiveni Rabuka’s attendance remained uncertain right up to the opening; and New Caledonia. A sixth leader, Solomon Islands Prime Minister Matthew Wale, had actually arrived in Palau before turning around and flying home to Honiara to face a no-confidence motion against his own government – a domestic political emergency with nothing to do with Beijing or Canberra. New Zealand’s Foreign Minister, Winston Peters, described the run of absences as seriously disappointing, while allowing that the delegations that had arrived were of a high standard. Australia, by contrast, was fully represented: Prime Minister Anthony Albanese made his first official visit to Palau and his fifth Forum leaders’ meeting, accompanied by Climate Change and Energy Minister Chris Bowen and Pacific Island Affairs Minister Pat Conroy, and told reporters the gathering was, above all, a meeting of the Pacific family.

Layered on top of the absences was a sharper irritant: Palau is one of only three Forum members, alongside Tuvalu and the Marshall Islands, that maintain formal diplomatic relations with Taiwan rather than the People’s Republic of China. As host, Palau invited Taipei alongside China, the United States, Japan, the United Kingdom and Singapore as development partners, and Taiwan’s Foreign Minister, Lin Chia-lung, attended the opening ceremony in person. China’s special envoy for Pacific affairs, Qian Bo, warned there would be consequences without specifying what form they might take, and Beijing’s Foreign Ministry spokesperson, Guo Jiakun, told reporters Taiwan was not qualified to participate in the Forum’s activities in any capacity. A Pacific source at the meeting told wire reporters that Chinese officials had also privately warned other governments not to attend side events where Taiwan’s delegation was present. None of this was without precedent: at the 2024 leaders’ meeting in Tonga, a communique reference to the Forum’s 1992 position on Taiwan was briefly published before being quietly removed after China’s envoy objected, a sequence Taipei condemned at the time as a rude intervention in the Forum’s own processes.

Reading the absences honestly requires resisting a single tidy explanation. Wale’s departure had a clear and unrelated domestic cause. The other five are harder to explain away so cleanly, which is exactly why they have drawn attention. Alan Tidwell, director of the Centre for Australian, New Zealand and Pacific Studies at Georgetown University, told Radio Free Asia that a leaders’ meeting without leaders could not be regarded as fully productive as a political exercise. Winston Peters went further, calling the collective absence highly suspicious without making a direct accusation. Analysts writing for The Conversation have suggested it is plausible some of the missing leaders were influenced, directly or indirectly, by a China that has become one of the largest infrastructure lenders to several of the countries that stayed away. But governments in Suva, Port Vila and Apia each have their own coalition pressures and domestic calendars to manage, and collapsing every absence into an instruction from Beijing risks doing exactly what the Forum’s founders set out to resist: treating small Pacific states as passive instruments of great-power will rather than governments making their own, sometimes inconvenient, sovereign choices. What can be said with confidence is that the cumulative effect, whatever the individual causes, was a meeting that struggled to project the unity its own theme demanded.

Bilateral Success, Multilateral Cost

The Forum did not simply mark time despite the thin attendance. On 2 September, the United States and Australia jointly announced a combined 580 million US dollar package for Pacific nations. Washington’s 150 million dollar share, delivered by Deputy Secretary of State Christopher Landau, was mixed project funding – energy, ports, seabed mapping – and one of the clearest signals yet that Washington remains engaged in the region after last year’s disruption to US aid machinery. Canberra’s roughly 430 million dollars was something more specific: a counter-narcotics and maritime-surveillance package, built around the proposed “Waqa Moana” partnership, funding enhanced aerial surveillance, a transnational crime intelligence centre in Samoa, an interdiction coordination hub in Fiji, and expanded Australian Federal Police and Defence support for Pacific patrol boats, in response to a sharp rise in drug trafficking through the region. It is security spending, even without the language of a defence treaty attached to it, and neither government has published a fuller project-by-project breakdown beyond that. Leaders were due to consider, and reporting from Koror indicated they would affirm, a member-led approach to deep sea minerals along the lines set out in the previous year’s communique, which had already directed officials to bring back an implementation plan – a formulation that reflects the genuine split between Palau, a staunch opponent of seabed mining, and members such as the Cook Islands and Nauru that have licensed exploration in their own waters. The Forum Secretariat had not published this year’s leaders’ communique as this essay went to print, so the final wording should be treated as provisional until it appears. On fisheries, leaders endorsed the Vakamanu Regional Pacific Fisheries Strategy 2026–2035 as the bloc’s overarching framework.

Underneath those formal outcomes sits a quieter story about how Australia has actually chosen to pursue its Pacific interests over the past two years: less through the multilateral Forum process than through a rolling series of bilateral security treaties, with Tuvalu in 2023, Nauru in 2024, Papua New Guinea in 2025, and Vanuatu and Fiji in 2026. Fiji’s own case is the clearest illustration of the tension this creates. It was the Forum itself that endorsed the Blue Pacific Ocean of Peace Declaration at the 2025 Honiara leaders’ meeting, a collective statement of principle any member could stand behind. What followed in July 2026 was narrower: the “Ocean of Peace Alliance,” a mutual defence treaty signed in Suva as Fiji’s bilateral pact with Australia, alongside the separate Vuvale Union economic and security agreement – Fiji’s first such alliance and Australia’s fourth. It remains open for other Pacific states to join later, but it began life as a Forum-wide declaration and closed the year as a bilateral treaty with Canberra’s name on it. Many Pacific leaders have welcomed these bilateral treaties individually, which typically come with direct policing and infrastructure assistance a consensus-bound Forum struggles to match quickly. But the pattern sits awkwardly beside the Forum’s founding logic of collective voice, and Fiji’s declaration-turned-alliance is a concrete sign that Australia’s very success at bilateral diplomacy may be part of what is now straining the multilateral table it helped build.

Minerals, Markets, Missiles

None of this can be separated from the broader, non-military trade contest between Australia and China. In April 2025, Beijing suspended exports of a wide range of rare earth elements and magnets in response to the Trump administration’s tariff escalation, deploying its near-total dominance of global rare earth processing as leverage in a trade war that had nothing directly to do with the Pacific. Australia’s Trade Minister, Don Farrell, moved to position the country as a secure alternative supplier, and Canberra has since fast-tracked a 1.2 billion Australian dollar critical minerals reserve built around offtake agreements rather than physical stockpiling, alongside a dedicated rare earths agreement with Washington. The point, for this essay, is not to tour that whole allied supply-chain architecture again but to name the single sentence that binds it to Koror: large stretches of Pacific exclusive economic zones – precisely the seabed wealth Julian Moti first drew my attention to – are now understood to hold some of the same minerals at the centre of that contest. It is no accident that deep sea mining occupied so much of the Forum’s own attention this year, nor that Washington chose this same meeting to announce fresh funding.

That contest also has a harder edge, dated to earlier this year rather than to this week in Palau. In July, around the time Australia and Fiji were finalising their Ocean of Peace treaty in Suva, China test-fired an intercontinental ballistic missile into the Pacific Ocean. Solomon Islands Prime Minister Matthew Wale – the same leader who would return to Honiara from Palau to fight a no-confidence motion in September – said at the time that no power, China, the United States or anyone else, should be testing such missiles in Pacific waters, and that partnership must not come bundled with intimidation. Oliver Nobetau of the Lowy Institute wrote, in the same July commentary, that further testing risked reducing Pacific nations to spectators in their own waters, much as they were during the Second World War. Those words were not spoken in Palau, but they form the regional sentiment this year’s Forum met against, and they explain why deep sea minerals and diplomatic snubs both landed with more weight in Koror than they might have in a quieter year.

Close

Palau’s President Whipps opened this year’s Forum with a warning that the region’s partners were welcome to sail alongside it but did not get to choose its destination. Judged against that standard, the 55th Leaders’ Meeting was a mixed result: outcomes on fisheries, a member-led position on deep sea minerals that leaders were expected to affirm but which the Secretariat had not yet published as this went to print, a third of the membership absent, a furious China, and the Blue Pacific’s own Ocean of Peace Declaration – adopted collectively at Honiara in 2025 – arriving a year later as a bilateral mutual defence treaty between Fiji and Australia. Whoever controls the resources beneath these waters, and whoever gets to decide the terms on which they are extracted, will shape the sovereignty of Pacific peoples for a long time yet. Julian Moti understood that before most people were paying attention to it. Whether the Forum’s own member-led principle on deep sea minerals survives the next round of great-power courtship, once its actual wording is public, is a question this outlet intends to keep following, from Koror and wherever the story leads next.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

I. Two Ways to Break the Same Doctrine

Every constitutional democracy inherits the same promise: that the power to make the law, the power to enforce it, and the power to judge it will never sit in the same hands. Montesquieu gave the doctrine its classical form in 1748, arguing that liberty perishes the moment a single body wields legislative and executive power together, and perishes just as surely if the power to judge is not separated from both. The framers of modern constitutions – Australia’s included, however imperfectly – built their institutions on that warning. Parliament writes the law. The executive administers it. The courts interpret it, and stand ready to tell the other two branches when they have exceeded their authority. Each branch is meant to check the others, and none is meant to answer only to itself.

The doctrine is written down. It sits in constitutions, in statutes establishing courts of independent jurisdiction, in the oaths sworn by judges and the conventions that keep ministers from directing prosecutions. All of that is what lawyers call the de jure position – the position “by law,” the position as it exists on paper regardless of what actually happens on the ground. But there is a second, quieter way a government can hold power, and it is the one this essay is really about: the de facto position, the state of affairs “in fact,” in practice, on the ground – which may or may not have anything to do with what the law says should be happening.

The distinction matters because there are two entirely different ways an unscrupulous government can dismantle the separation of powers, and only one of them looks like what most people expect an attack on democracy to look like. The first way is legislative: a government proposes, in public, to change how judicial or quasi-judicial outcomes are reviewed or held to account. This is attention-seeking, contestable, and – because it has to pass through parliament, survive scrutiny, and often clear constitutional challenge – comparatively difficult to pull off outright, and comparatively easy to argue about once it is on the table. The second way is administrative: a government never touches the law at all. It leaves the constitution, the statutes, and the independence of the judiciary formally intact, and instead spends years, sometimes decades, quietly shaping who holds every discretionary post beneath those formal structures. It does not need to instruct a police force or a tribunal to protect its interests if the people running it already understand, without being told, what protecting those interests looks like. Nothing on the statute book changes. What changes is who is inside the building.

This essay sets out both mechanisms. It uses a live, still-unfinished Australian policy proposal as a foil for the de jure route, and one thoroughly documented, independently tested federal case – the Robodebt scheme and the tribunal that was meant to catch it – as the evidentiary core of the de facto route. It does not claim the two mechanisms are equally severe or that they aim at the same destination, only that they are different species of the same underlying failure, and that one of them is considerably better camouflaged than the other.

II. The De jure Attempt: Legislating Around the Judiciary – and Where the Real Line Sits

The de jure route announces itself. In August 2026, Victorian One Nation leader Warren Pickering, appearing alongside Senator Pauline Hanson, said that a priority of any government he led would be to “make… bleeding-heart judges accountable for these second-time offences,” and pledged to end what he called a “tag-and-release” approach to youth bail. The party’s published Victorian justice policy, titled Tackling Crime, proposes tougher bail and sentencing settings for repeat offenders and expanded youth detention capacity, together with a review panel to examine serious offending committed by people already on bail. The policy document itself is specific about the panel’s composition, stating that it “would ideally comprise legal experts (lawyers and ex-judges) as well as genuine community representatives” – language worth quoting directly, because the panel’s design is exactly what determines whether it is a legitimate accountability mechanism or something closer to political pressure on individual cases, and the answer should not be assumed either way.

It would be inaccurate to present this as a proposal to seize control of individual verdicts, and a case built on that description would not survive contact with the actual policy. Nothing in the published platform purports to direct a court how to decide a specific matter, and legislatures routinely – and entirely lawfully – shape sentencing outcomes in advance: mandatory minimum sentences, standard non-parole periods, appellate sentencing guideline judgments, and judicial commissions that publish and monitor sentencing statistics are all long-standing, constitutionally uncontroversial exercises of a parliament’s own, separate function. A government that legislates a mandatory minimum has not abolished judicial independence; it has exercised its own authority to set the law the judiciary is then bound to apply. Judges remaining answerable to the law Parliament writes is not evidence of capture. It is the system working as designed.

The genuinely live question, then, is not whether a legislature may shape sentencing at all – it always has, and reasonable people disagree, often sharply, about how far that shaping should go. The live question is where a specific mechanism stops setting general rules in advance and starts pressuring outcomes in individual, identifiable matters. A panel that includes lay members and examines named offenders’ cases after they have reoffended sits closer to that line than a published sentencing guideline does, because its practical function is to generate visible, case-specific attention on decision-makers considering what happens next to a particular person, rather than to fix a rule of general application ahead of time. Whether this specific panel crosses that line turns on details the policy document does not yet settle: is its remit prospective and general, or retrospective and case-specific? Does it report to Parliament as a policy input, or does it correspond directly with courts or corrections decision-makers about matters still live? Is it insulated from commenting on cases still before a court, in the way sub judice conventions already require of ministers? These are the tests worth applying to the panel once it is fully designed. Whether a press release uses the word “accountable” is not.

What can be said with confidence, whatever this policy becomes, is the structural point this essay is built on: it will have to become something – a bill, introduced, debated, passed or rejected in public – before it can operate, and it will then be available to be tested against the constitutional protections that already constrain legislative interference with judicial process. That requirement to survive daylight before it can bite is what distinguishes a de jure proposal, however aggressive its rhetoric, from the mechanism examined in the rest of this essay.

III. The De facto Method: Capture Through Incumbency

There is a second, quieter way to achieve something like the same result, and it does not require any bill at all. An incumbent government that controls every lever of executive appointment for long enough does not need to legislate its way past judicial or quasi-judicial independence. It can simply outlast the people who would otherwise enforce that independence, and replace them, discretionary appointment by discretionary appointment, with people who do not need to be told what the government wants.

This is the essential feature of de facto separation-of-powers erosion: it requires no instrument. There is no statute to point to, no minister who signs an order directing a prosecution or a tribunal outcome, no clause that formally subordinates a reviewing body to the executive it is meant to check. Every formal structure remains intact. What changes is who sits inside those structures, and what those people understand – without ever being told directly – the government wants from them. A regulator or review body does not need a written instruction to treat a government-favoured party differently from anyone else; it needs members, at every level that matters, who have risen through, or been appointed into, a culture where that difference in treatment is simply how things are done.

I have spent years reporting on a long-running Australian Capital Territory employment and public-interest-disclosure dispute in which a similar pattern appears on the documentary record tendered in later court proceedings – correspondence and an internal departmental email suggesting a whistleblower-protection process was used, within days, against the person who had raised the original complaint. That reporting is offered here only as colour: it illustrates what the mechanism can look like inside a single agency, not as the evidentiary foundation for the argument that follows. The foundation is the case in the next section, which does not depend on this essay’s author having reported on it, having any stake in its outcome, or being believed about anything at all.

IV. The Proof: Robodebt and the Tamed Tribunal

The clearest illustration of de facto capture, tested independently of any single person’s account, is the Administrative Appeals Tribunal’s role in the Robodebt scheme – now a matter of extensive public record following the 2023 Royal Commission into the Robodebt Scheme, chaired by Commissioner Catherine Holmes.

In March 2017, AAT member Terry Carney AO – an administrative and welfare law academic of some four decades’ standing – handed down a decision finding that the income-averaging method underpinning Robodebt’s debt calculations was unlawful, and went on to make several further rulings to the same effect. The Department of Human Services did not appeal any of them to the Tribunal’s General Division, where such an appeal would have been heard more openly and the finding would have become difficult to keep from other debt recipients contesting their own notices. On the Royal Commission’s own findings, the department instead continued the practice Carney had found unlawful and did not report his rulings as the significant legal issue its own obligations required. In September 2017 – six months after his first adverse ruling, and after almost forty years on the Tribunal – Carney’s appointment was not renewed.

Here the caveat matters as much as the fact. Carney has said, giving evidence on oath to the Royal Commission, that he believed the non-renewal followed from his Robodebt rulings; that is his account of his own experience, and it should be read as such. Commissioner Holmes’s final report records the sequence of events and states that it raises the question of whether the government moved to inhibit scrutiny of the scheme by shifting personnel inside the bureaucracy – a question the report poses rather than a finding it makes on that specific causal link. The Royal Commission’s harder, better-supported findings lie elsewhere: that the scheme itself used a method of calculating debts inconsistent with the social security legislation it purported to apply, that departmental officials knew or ought to have known this well before the scheme ended, and that the department did not escalate or publicly report adverse tribunal rulings as its own obligations required. Carney’s removal is properly read as a strand within that pattern, consistent with it, rather than as a fact the Royal Commission itself definitively proved.

The specific figure comes from Carney himself. In a University of Sydney Law School interview published on 13 December 2023, reflecting on the Royal Commission’s findings, Carney said the department had breached its “model litigant” obligations partly by “ignoring and failing to appeal 220 tribunal findings of illegality,” and separately described the government as having “gamed” the AAT “by never appealing to the second tier ‘General Division’ any of the 220 rulings invalidating Robodebt at the first level of the Tribunal… because doing so would have made public the rulings of invalidity, jeopardising the continuation of the scheme.” The figure should be read as Carney’s own count of the tier-one findings he considered clearly on point, not as an independently audited or Royal Commission-certified total. The characterisation he draws from it – that the government kept unfavourable outcomes confined to a forum where they set no public precedent and triggered no reporting obligation – is the substantive point, and it does not turn on the precise figure. When the scheme was finally tested in the Federal Court, the government twice moved to avoid a judgment on the underlying legality: in the first case, by zeroing the specific debt in dispute just as the matter came on for hearing, removing the live controversy; in the second, only after resisting a subsequent challenge in which it eventually conceded the point. Robodebt was found unlawful in November 2019, more than two years after Carney’s original ruling, and only via the Federal Court rather than the tribunal designed to catch exactly this kind of error first.

None of this required amending the Administrative Appeals Tribunal Act, the social security legislation Robodebt purported to apply, or any provision governing appointments to the Tribunal. The Tribunal’s formal jurisdiction, its formal independence from the department whose decisions it reviewed, and its formal power to find a scheme unlawful were never touched by any statute. What changed was who continued to hold appointments to it, which of its findings were allowed to become visible, and which findings a department chose to escalate as required and which it chose not to. That is the mechanism this essay is about – capture of a check through appointment and selective compliance rather than through legislative amendment – documented independently, tested before a Royal Commission with the power to compel evidence under oath, affecting several hundred thousand people.

V. Cataloguing the Mechanisms

The Robodebt case, on its own, displays several distinct mechanisms by which an incumbent government can hollow out a check on its power without amending a single law. Each is transferable well beyond this specific scheme.

Non-renewal of discretionary appointments. A tribunal member’s or statutory officeholder’s contract simply not being renewed requires no reason to be given and no instrument to be signed. It is, formally, the ordinary and lawful expiry of a term. Its capacity to shape a body’s future findings depends entirely on timing and pattern – which is exactly what makes it difficult to challenge in any single instance and easy to see in aggregate.

Selective escalation and reporting. A review body’s formal power to find against the executive is worth little if adverse findings can be kept at a level of the process where they set no public precedent and trigger no obligation to report upward. The mechanism here is not that the Tribunal lacked power; it is that the power was allowed to operate only where its exercise stayed quiet.

Strategic litigation to avoid an adverse precedent. Repeatedly resolving individual disputes – zeroing a debt, settling a claim – just before a court would otherwise be forced to rule on the underlying legality of a broader scheme is a lawful use of ordinary procedural tools that nonetheless functions to keep a systemic question from ever being systemically answered.

Institutional non-compliance dressed as administration. Continuing a practice a tribunal has already found unlawful, without escalating, appealing, or publicly acknowledging that finding, is not a legislative act. It is a sustained administrative choice, repeated long enough to look like ordinary process rather than defiance.

Read together, these mechanisms share the feature this essay keeps returning to: none of them required a bill. Each one, taken alone, is close to unfalsifiable – a non-renewal is just a contract ending, a non-appeal is just a litigation choice, a delay is just administration. It is only in aggregate, and usually only after a body with the power to compel evidence goes looking, that the pattern becomes visible at all.

VI. Why the Quiet Method Deserves More Attention Than It Gets

It is tempting to treat a public pledge to make judges more “accountable” as the more alarming development, because it reads as a headline and photographs well. Section II tried to take that proposal seriously on its own terms rather than caricature it – and having done so, the honest conclusion is that a de jure attempt of this kind, even a poorly designed one, is the version democracy is comparatively well equipped to survive. It has to be introduced. It has to be debated. It can be challenged in exactly the courts it seeks to touch, on exactly the constitutional grounds those courts exist to protect. It must be enacted before it can operate, which means it can be stopped before it does any damage at all.

De facto capture offers none of those points of resistance, because it never asks for permission. No opposition MP can move to disallow a non-renewal. No court can strike down an institutional habit of confining adverse findings to a quiet forum, because no such habit is ever reduced to an instrument capable of being challenged. The people affected – a tribunal member whose contract simply isn’t renewed, several hundred thousand welfare recipients pursued under a scheme a department’s own review process had already found wanting – are told, correctly as a formal matter, that every relevant law was followed. The Tribunal’s independence was never legislatively touched. Each individual step withstands scrutiny in isolation, which is exactly what makes the aggregate pattern so difficult to name and so easy for a government to deny while it is happening.

This is not a claim that the two mechanisms are equally severe, or that a not-yet-enacted review panel and a documented pattern of tribunal capture are the same species of wrong – they plainly are not, and treating them as interchangeable would flatten a distinction this essay has tried to keep sharp throughout. The claim is narrower: whichever mechanism turns out to be more damaging in a given case, it is the quiet one that a democracy’s existing accountability structures – a free press reporting on bills before Parliament, an opposition able to divide the house, courts able to hear a constitutional challenge to a statute – are least designed to catch, because those structures are built to respond to instruments, and de facto capture does not produce an instrument until, sometimes, a Royal Commission is convened years later to go looking for one.

VII. Conclusion: What the Doctrine Requires Now

None of this is an argument that formal, legislative protections for judicial and quasi-judicial independence do not matter – they plainly do, and a genuinely case-specific “accountability” panel of the kind sketched in Section II would deserve the scrutiny, and quite possibly the opposition, it would attract once its actual design became public. But a society that measures the health of its separation of powers only by whether a statute has been amended will miss the erosion that can happen in plain sight, one non-renewed appointment, one un-escalated ruling, one quietly zeroed debt at a time.

The remedy for a de jure attack is public argument and, where necessary, litigation – tools a healthy democracy already has, and applies, before the damage is done. The remedy for de facto capture is harder to build, because it requires exactly the kind of independent oversight – appointment processes insulated from the government of the day, statutory obligations to escalate and report adverse findings that are actually enforced rather than quietly not complied with, Royal Commissions willing to compel evidence on oath when the ordinary channels have failed for years – that an administration well practised at the quiet method has every incentive to resist. Robodebt shows both halves of that problem in one case: the mechanism by which a check was disabled, and the years it took an extraordinary, purpose-built inquiry to make that disabling visible at all. The harder question the Robodebt case leaves behind is not whether any particular government would ever pass a law to discipline a tribunal. It is whether, in a system that only watches for instruments, a government confident enough in its own longevity still needs to.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Introduction

Euphemism is not the master key to politics. It does not explain war, austerity, or the persistence of injustice, and treating it as though it did flatters the critic more than it illuminates the subject – as if naming a linguistic trick were the same as defeating the power behind it. What euphemism is – and this is a narrower, more defensible claim – is one of the principal instruments by which power evades accountability for what it does. It sits alongside other instruments: secrecy, spectacle, legal technicality, sheer exhaustion of the public’s attention. Its specific contribution is linguistic: it lets an institution describe an act without describing what the act actually consists of, so that agreement can be secured before anyone has to picture what they are agreeing to.

George Orwell made this case in 1946, in “Politics and the English Language,” and then dramatised its furthest extension three years later in Nineteen Eighty-Four. An argument that stops there repeats Orwell’s own error at one remove, trading live inquiry for a set of ready-made moves – treating euphemism as one fog rather than several distinct mechanisms, catching only one political tendency in the net, and forgetting that plain, concrete language is not automatically honest. Orwell himself understood that last point better than the tidy version of his argument usually credited to him; what follows tries not to forget it either.

Orwell’s Mechanism, Narrowed

Orwell’s claim in “Politics and the English Language” was that political writing is, to a great extent, “the defence of the indefensible,” and that this defence depends on avoiding language concrete enough to conjure a mental picture. If a village is destroyed from the air and its inhabitants killed, the plain sentence describing that event is close to unbearable to write. “Pacification” removes the image and leaves only the administrative shell.

Orwell isolated three tactics that perform this removal: the euphemism itself (softened term for a brutal act); orthodox phraseology (pre-fabricated phrases that let a speaker avoid the effort, and the risk, of original thought); and vague, grandiose abstractions (democracy, freedom, justice) deployed as though self-evident, when in fact each faction quietly fills them with a different, unstated content. What unites these tactics is not moral failing so much as function: each interposes a layer of insulation between the words and the reality the words are nominally about, and that insulation is valuable to anyone whose actions would not survive being pictured plainly.

Newspeak as the Limit Case, Not the Norm

Nineteen Eighty-Four imagines what happens if this tendency is engineered rather than merely indulged – if a language is built so that evasion becomes structurally unavoidable. Newspeak’s three vocabularies attack the problem from different angles: the A vocabulary strips ordinary words of nuance and ambiguity; the B vocabulary consists of compound political terms that arrive pre-loaded with the Party’s verdict built into their syllables – goodthink, crimethink, joycamp for a forced-labour camp – so that using the word is already accepting the judgment; the C vocabulary fragments technical knowledge so finely that no single vocabulary exists broad enough to conceive of “Science” as a coherent, potentially threatening body of independent inquiry.

Newspeak also deletes gradation. Antonyms disappear where a prefix will do – bad becomes ungood – and intensifiers collapse into a single mechanical stack: plusgood, doubleplusgood. The result, in Syme’s ideal, is duckspeak: ideologically correct phrases emitted from the larynx without the higher brain centres ever being consulted, speech that has become pure reflex.

It is worth being honest about what this limit case is for. Real political language almost never approaches Newspeak’s totality, and treating every euphemism as a small step on a slippery slope toward duckspeak proves too much – it collapses the difference between an institution reaching for a comfortable phrase and a state that has actually redesigned its language to make dissent unspeakable. Newspeak is useful as a diagnostic extreme, a way of seeing the ordinary mechanism magnified rather than a description of how most political speech behaves. But the magnification is instructive precisely because Newspeak’s three vocabularies are not one undifferentiated device – the B vocabulary’s pre-loaded compounds work by concealment, smuggling a verdict inside a word; the C vocabulary’s fragmentation works by jargon, walling off comprehension along expert lines; the deletion of gradation works by bureaucratic flattening, replacing a judgment with a mechanical scale. Ordinary political language keeps these three mechanisms separate rather than fusing them into one engineered system, which is exactly why they reward separating.

A Taxonomy, Not a Catalogue

Ordinary political euphemism does not operate as a single undifferentiated fog. It is worth separating at least four distinct mechanisms, because they conceal in different ways and call for different kinds of scrutiny.

Concealment substitutes a term that hides the nature of the act itself. “Collateral damage” for civilian deaths; “enhanced interrogation techniques” for torture. The listener is not given false information exactly – they are given true information from which the morally decisive content has been surgically removed.

Bureaucracy distances an institution from responsibility for an act by folding it into administrative process. “Right-sizing” for mass layoffs; “revenue enhancement” for a tax increase. Here the trick is not hiding the act but draining it of agency – the passive machinery of “adjustment” replaces a decision someone actually made.

Jargon uses a technical or clinical register to exclude the general public from full comprehension rather than to conceal any single fact. “Kinetic operations” is not really hiding that force was used; it is placing the description in a register – quasi-scientific, quasi-military – that ordinary civic vocabulary cannot easily interrogate, because it borrows the authority of expertise to foreclose lay objection.

Naming-contests are different in kind from the other three: here, two or more terms compete openly for the same referent, and neither side is straightforwardly hiding anything – each is trying to win the argument by winning the noun. This is euphemism’s most political form, because it is symmetrical: it is available to, and used by, every faction with a stake in the outcome. The contest does not always stay symmetrical, though – often one side has a coined term circulating in institutions, media style guides, and legislation well before any opposing term is coined at all, so that the “contest” for long stretches consists of a single label being smuggled into ordinary public use unopposed, quietly settling the question by attrition before a rival noun ever arrives to contest it.

These four are not hermetically sealed categories so much as four angles of attack on the same underlying move, and most real specimens combine more than one. “Enhanced interrogation techniques” is simultaneously a concealment (torture renamed) and a piece of jargon (a legal-sounding compound structure built to resist casual objection). “Right-sizing” is bureaucratic distancing built entirely out of the vocabulary of correction and fit, but it is also, in a modest way, jargon – borrowing a term from manufacturing and logistics to make a layoff sound like an engineering adjustment. The typology is a way of asking better questions of a given example, not a filing system it will consent to sit still for.

Balancing the Sample

If this mechanism is genuinely general, it should not present as a vice peculiar to one political tendency. Security-state concealment (“enhanced interrogation,” “neutralize”) sits recognisably on one end of a familiar spectrum; “tax relief” does comparable work from a third position, smuggling a policy conclusion into a noun before any argument has been offered for it. Take “equity” as the demonstration case: the word names a real and contested distributive question, but its public use routinely skips past that question rather than answering it – a policy document can commit an institution to “advancing equity” and secure broad assent, because the sentence has not yet specified whether it means equal treatment, equal outcomes, or targeted redistribution, three positions serious people disagree about sharply. The vagueness is not incidental to the word’s popularity; it is the reason a coalition that could not agree on any of the three specific policies can still agree on the noun. That is euphemism’s bureaucratic-naming-contest hybrid at work, not a special vice of one side of politics.

Two Phrases, Examined Closely

“Collateral damage”

The phrase is instructive precisely because it is not partisan; it has been used by every major military power for decades, regardless of the government in office. Its grammatical structure is doing specific work. “Collateral” means secondary, incidental, attached to something else – the phrase’s entire function is to assert, before any facts are examined, that civilian death is a side-effect rather than a foreseeable consequence of a targeting decision. “Damage” completes the operation by placing human death in the same category as damage to property or equipment – a category that can be tallied, minimised, and weighed against military objectives without the vocabulary ever being forced to acknowledge that a person, rather than a structure, has ceased to exist. What makes the phrase durable rather than merely cynical is that it is not always used in bad faith – militaries do distinguish, sometimes carefully, between intended and unintended casualties, and the distinction is not meaningless. The euphemism’s danger lies less in the distinction it draws than in how completely the phrase pre-empts scrutiny of that distinction: once “collateral damage” has been said, the sentence is grammatically finished, and the question of whether the targeting decision was in fact reasonable, proportionate, or avoidable has been quietly closed before it was opened.

“Undocumented immigrant vs. illegal alien”

This pair belongs to the naming-contest category, and it rewards close attention precisely because neither term is a neutral report of fact – each is an argument disguised as a description. “Illegal alien” foregrounds legal status as the single most salient fact about the person, and pairs it with “alien” – a word that is, in fact, a genuine term of art in immigration statute, defined there as any person who is not a citizen or national. That legal pedigree is precisely what makes the word useful for dehumanising purposes: its clinical legitimacy lends borrowed authority to a connotation the statute itself does not intend, since outside the code “alien” carries a primary sense of foreignness bordering on the inhuman, and the phrase invites the listener to conclude, before any further information is supplied, that the person’s presence is a violation and their belonging is fundamentally in question. “Undocumented immigrant” foregrounds migration and paperwork instead, reclassifying the same legal fact as an administrative gap – something one lacks – rather than a status one is; but this is not merely softer, it is frequently a misdescription, since many people the phrase names hold documents, issued by another country, and what they actually lack is not paperwork as such but a specific legal status the word “undocumented” quietly declines to name. Both phrases are grammatically complete sentences pretending to be neutral nouns. Both encode a conclusion about how the listener should feel – threatened or sympathetic – inside a two-word label, before any argument has actually been made. The instructive point is that this contest cannot be resolved by simply preferring the “softer” term, because softness is not the same as accuracy in either direction: the correct response to a naming-contest is not to pick a side’s preferred euphemism, but to notice that a contest is occurring at all, and to ask what specific, verifiable facts about the person’s situation are being smuggled past on the strength of a chosen noun.

The Missing Objection: Concrete Language Serves Cruelty Too

Orwell’s prescription – prefer the concrete word to the abstract one – is genuinely useful, but it is not a complete defence against propaganda, and Orwell himself, writing about totalitarianism elsewhere, understood this better than the tidy version of his argument usually credited to him. Concrete, vivid, image-laden language is not inherently honest. It is, in fact, the dominant register of dehumanising propaganda, which typically does not hide behind abstraction at all – it specifies, and specifies viciously. Calling a persecuted group “vermin,” “cockroaches,” or a “plague” is about as concrete and imagistic as language gets; these words are chosen precisely because they conjure an unmistakable mental picture, and the picture is the whole point – it recruits an instinctive, pre-rational disgust response that no abstraction could produce. Genocidal rhetoric across the twentieth and twenty-first centuries has relied overwhelmingly on this kind of vivid dehumanisation rather than on euphemistic vagueness; the concealment, where it exists, tends to arrive only later, in the bureaucratic paperwork that follows the concrete incitement.

This matters for the essay’s argument because it means Orwell’s stylistic cure – concreteness, plain nouns, the avoidance of ready-made phrases – is necessary but not sufficient. A political culture vigilant only against vagueness, and unsuspicious of vivid language as such, has defended against half the threat. The other half arrives dressed as clarity.

The Popular Mythos, and Its Problems

V for Vendetta enters this argument as a mythos rather than a single text, and it is worth being precise about the seam running through it. Alan Moore and David Lloyd’s original graphic novel does contain the core sentiment now attached to the character – that an idea, unlike a body, cannot be killed – spoken by V in a spare form at his own death. But the version that actually circulates, addressed to “Mr. Creedy” and building to “beneath this mask there is more than flesh,” is the 2005 film’s dialogue, written by the Wachowskis for a confrontation the book does not stage in that form. The film took a spare line from a considerably more ambivalent book and dramatised it into something closer to a manifesto – and Moore, uneasy with that transformation among others, publicly disowned the adaptation. What circulates as “V’s philosophy” is therefore a composite, and what follows engages that popular composite rather than claiming to represent Moore’s own, more guarded position.

Read as that composite, the popular V is not a straightforward counterexample to Newspeak’s evasions – a hero who simply speaks clearly where the Party speaks vaguely. He is a more troubling case, because his rhetoric borrows the exact grammatical shape Orwell warned against: grand, undefined abstractions – idea, symbol, the people – asserted with total confidence and never cashed out into anything specific enough to be argued with. “Ideas are bulletproof” sounds like an argument and functions as a slogan, inviting agreement rather than earning it, and the theatrical apparatus around the character – the mask, the anonymity, violence staged as communication – is itself a mythologising technology, not a neutral vehicle for clear thought; a mask obscures exactly as much as a euphemism does, it simply obscures a person instead of a policy. The line that should trouble a careful reader most is “happiness is the most insidious prison of all,” whose totalising shape forecloses, by its own grammar, the possibility that contentment might ever be genuine rather than manufactured – an unfalsifiable claim of exactly the kind Orwell distrusted, regardless of which side issues it. Resistance movements are not exempt from the temptation to mythologise. A movement convinced its own language is transparently truthful, simply because it opposes a regime that is transparently false, has not solved Orwell’s problem. It has relocated it.

Conclusion: A Narrower, More Demanding Vigilance

Vigilance against euphemism is not, by itself, vigilance against political harm. Concrete, vivid language can dehumanise as effectively as abstract language can conceal, and a reader trained only to distrust vagueness will walk directly past propaganda dressed in specific, imagistic nouns – including, sometimes, the propaganda of one’s own side.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

I. The Half-Hour Truce

There is a particular kind of quiet that only exists in the thirty minutes before you have to stop being quiet. This morning it belonged to the Royal Botanic Garden in Sydney, where spring sun sat on my face like something owed to me, where a coffee cooled slowly in my hand, and where a book lay open on my lap doing more work than I was. In half an hour I would be back at a desk, dealing with the ordinary weather of an office: emails demanding to be read as though they were weather warnings, meetings that exist mainly to schedule other meetings, and the small frictions that dress themselves up as urgent business because urgency is the only currency that gets attention anymore. For those thirty minutes, though, the city was still far enough away that I could hear the harbour and the birds instead of the inbox. That distinction – harbour versus inbox, birdsong versus notification – is not a small one. It is, I think, the difference between a life and a schedule.

The book responsible for the quiet was Joshua Hammer’s The Mesopotamian Riddle. On its surface it is a race – an archaeologist, a soldier, a clergyman, each chasing the same prize through the same century. But underneath the race is something considerably older and considerably stranger: the story of the moment human beings first learned to press thought into clay, and of what those first recorded lives actually sounded like once the script that held them was finally cracked open after the better part of two thousand years of silence.

Hammer’s opening has stayed with me since I read it, in the way certain sentences do – not because they are ornate, but because they ask a question you did not know you were carrying. He sets the scene in London in 1857, an era drunk on its own idea of progress, watching in fascination as strange palaces emerged from the sands of the Middle East. Assyria. Babylon. The mighty Persian Empire. For a Victorian public raised on the Bible and on Herodotus, these were not neutral names. They were the villains of two founding stories at once – the great antagonists of both ancient Greece and ancient Israel, the empires that sacked, exiled, and conquered the peoples whose own accounts had survived to tell the tale.

And so the question that animates the book, and that has been sitting with me ever since: what did these “bad guys” of Western history have to say for themselves? What were their values, their rituals, their sense of where they stood in the order of the universe? What was it actually like to be a human being at the dawn of recorded history, rather than a human being as described by the people who buried them?

That last question is the one that keeps catching me this morning, under a jacaranda not yet in flower, with a stolen half hour ticking down. We like to believe the present is uniquely noisy – that we, of all generations, are the ones drowning in information, obligation, and grievance. Then you sit under a tree in September with thirty minutes borrowed from an employer, and you remember how old the habit actually is. People building cities. Keeping accounts. Arguing. Praying. Writing their names into wet clay so that they would not simply vanish into the ground they walked on. The Victorians wanted to know what the “other side” of history had to say for itself. That is a reasonable ambition. Mine is smaller and, I suspect, more selfish: I want to know how much of this – the coffee, the borrowed quiet, the reluctance to go back inside – would have been recognisable to someone standing on a rooftop in Nineveh three thousand years ago, watching the light change over the Tigris before a day of ledgers and litigation began.

Probably more of it than we like to admit.

II. The Bad Guys of History

It is worth sitting with why Assyria and Babylon needed rehabilitating at all. For most of the last two and a half thousand years, the only sources available to the West on Mesopotamian civilisation were the sources of its enemies and its victims. The Hebrew Bible remembers Assyria as the rod of God’s anger, the empire that scattered the northern kingdom of Israel and never gave it back. It remembers Babylon as the city of exile, the place where a conquered people sat down and wept when they remembered Zion, and where a tyrant’s hand wrote judgment on a palace wall in the middle of a feast. Classical Greek historians, writing centuries after the fact and with their own civilisational anxieties to manage, remembered the Persian Empire chiefly as the vast, decadent, despotic power that Greek liberty had heroically turned back at Marathon and Salamis – the great foil against which an entire idea of the West could be defined.

None of this is exactly false. Empires did what empires do, and the Assyrians in particular built a reputation for calculated brutality that their own inscriptions do not entirely dispute – they boasted about it, which tells you something about propaganda being a much older art than we credit it for. But a civilisation described only by its enemies is a civilisation known only in silhouette – its outline against the light, without ever seeing what it looked like from the inside: what its people worried about at three in the morning, what they wrote to their mothers, what made them laugh.

The rediscovery of that inside view is one of the great detective stories of the nineteenth century, and it is the one Hammer is telling. It required, in short, three unlikely men: a soldier who moonlighted as a spy and a scholar, a clergyman with an obsessive streak, and an archaeologist willing to spend years of his life quite literally digging in the dirt on the strength of a hunch. Between them, working sometimes together and sometimes in bitter competition, they cracked cuneiform – the wedge-shaped script pressed into wet clay by a stylus, used across multiple unrelated languages for the best part of three thousand years – and in doing so they did something no army or empire had managed. They gave the dead their own voice back.

III. What the Clay Actually Says

Here is the part that never fails to unsettle me, the part I keep returning to on garden mornings like this one. Once cuneiform could actually be read, the material that came pouring out of the ground was not, for the most part, grand royal proclamation. It was correspondence – contracts, receipts, tax records, marriage agreements, court proceedings, school exercises where a child’s handwriting visibly improves tablet by tablet across a term, and, famously, complaints. There survives a tablet, nearly four thousand years old, in which a merchant named Nanni writes to a trader called Ea-nasir to complain, at length and with evident fury, that the copper he was sold was substandard and that he had been fobbed off by an underling. It is, by any reasonable definition, the oldest surviving customer complaint in the historical record, and it is also, read without the condescension we reserve for “ancient” people, completely and instantly familiar. Strip away the cuneiform and the Tigris and the four intervening millennia, and what is left is a man who feels he has been ripped off and wants someone to know about it in writing, on the record, forever if possible.

That is the thing the Victorians were, in their way, asking after, and it is the thing I keep asking after too. Not the palace reliefs of kings trampling enemies underfoot – those tell you what an empire wanted remembered – but the domestic residue: the letters between spouses, the prayers scratched by people who were frightened of the dark or of illness or of their children coming to harm, the school tablets of student scribes making the same mistakes a modern child makes learning long division. Once you read enough of that material, the distance of four thousand years starts to behave strangely. It does not close, exactly – I am not claiming a Babylonian merchant and a Sydney public servant share a worldview, a cosmology, or a set of assumptions about how the universe is structured. They plainly do not. But the distance thins in places, and through those thin places you can see something that looks very much like continuity: people trying to be honoured, trying to be loved, trying to make sure the ledger balances, trying to leave some mark that says I was here and this is what happened to me.

That, in the end, is what pressing a stylus into wet clay actually is. It is an act of protest against disappearance. It says: I refuse to be nothing more than what my enemies wrote about me, or nothing at all.

IV. A Neighbour’s Language

I did not expect the book to follow me home, but it did, in the particular way that ideas do when you are paying attention to them – they attach themselves to whatever is nearby and refuse to let go. That afternoon I collected my youngest daughter, Luda, from school. We ran into our neighbour Margaret in the car park, and after the usual pleasantries, Luda – with the specific gravity that children bring to reporting overheard adult conversations – informed Margaret that her mother considers the two of us “eccentric” for spending Saturday afternoons sitting around talking to each other in ancient Greek. Luda relayed her mother’s reasoning faithfully and, I suspect, with some private amusement: it is not, after all, as though either of us is likely to run into an ancient Greek any time soon, in circumstances where the language skills we keep honing would prove remotely useful. My wife had added, more charitably, that she understood Margaret’s fascination well enough – Margaret went to school in England during a period when Greek and Latin were still taught, in the particular stratum of English schooling where dead languages were considered essential furniture for a certain kind of mind. Her father, on the other hand – my wife concluded – was simply eccentric.

Luda wanted to know what “eccentric” meant. I told her to ask her mother, since her mother is the psychiatrist in the family and therefore, I said, better qualified than I am to diagnose the condition.

She was not satisfied with the deflection, which is one of the things I like best about her. She wanted to know, specifically, why Margaret and I would bother speaking to each other in a language neither of us would ever need for practical survival. I told her, as plainly as I could manage for an audience of one small, sceptical person: it is knowledge for the sake of knowledge, and there is nothing wrong with that. I told her that I like to try to understand different people and different cultures, and that this is a discipline, not a hobby – something you have to keep in practice, like a muscle. That was as far as the answer to why Greek went, and it was enough for her; she moved on to something about a friend’s rabbit before we reached the front gate.

It was not enough for me, walking back inside afterwards. What I did not say to an eight-year-old, because it did not need saying to her yet, is the harder version: that people today have enough trouble understanding and empathising with people from a slightly different culture, or from a different country only a few miles over a border they have never crossed. If that is where our empathy runs out – at a border, at an accent, at a religion we do not practise – then we have no chance whatsoever of empathising with people who lived and died four thousand years ago. And yet, whether or not any particular bloodline runs back that far, those people are ancestors of a kind that matters more than genealogy: the accounts, the contracts, the laws, the habit of writing things down so as not to be forgotten – all of it inherited, whoever our grandparents happened to be. If we want to understand where we are now, we need to understand what they built, and what it cost them to build it.

V. Eccentric

I want to stay with that word for a moment, because I think it is doing more work than my wife intended, and more work than Luda’s question let on.

“Eccentric” comes from the Greek ekkentros – off-centre, away from the centre. An eccentric orbit is one that does not describe a neat circle around the thing it is meant to be circling; it loops out, at times, uncomfortably far from where convention expects it to sit. It is not a coincidence that the word used to describe Margaret and me – half-affectionately, half-not – is itself a Greek word, dragged into English by exactly the kind of classical education Margaret received and I chased down later in life by other means. There is a small, private joke buried in being called eccentric, in Greek terms, for speaking Greek.

But the deeper point is this: everything genuinely worth knowing starts out looking eccentric to somebody. Cuneiform looked eccentric – worse, looked like decorative scratching, not writing at all – to the first European travellers who saw it on Persian ruins and assumed it was ornamental. It took a soldier obsessive enough to copy, at real risk, a trilingual inscription cut into a cliff face at Behistun two hundred feet above the ground, purely because he suspected it mattered, before anyone could read a word of it. That is eccentricity in the classical sense: an orbit that refuses to sit at the comfortable centre of what a given era considers useful. My wife is not wrong that there is no practical use, in the narrow sense, for two adults spending a Saturday afternoon conjugating Greek verbs on a suburban veranda. But “no practical use” and “no value” are not the same claim, and conflating them is one of the more expensive mistakes a society can make. It is, not coincidentally, the exact mistake that nearly lost us cuneiform altogether – nobody in London in the 1830s could see the use of deciphering wedge marks on broken pottery from a desert nobody important currently lived in. The use only became visible in retrospect, once the silence broke and several thousand years of human testimony walked back out of the ground.

VI. The Failure of Nearby Empathy

That was the harder thought, walking back inside.

We live in a period extraordinarily well equipped, technically, to understand distant people, and extraordinarily poorly practised at doing so. We can watch, in real time and high definition, the lives of people on the other side of the planet – their weddings, their funerals, their bombings, their elections. Yet this abundance of access has not produced a corresponding abundance of understanding. If anything, the opposite: proximity of information without proximity of relationship breeds a kind of compassion fatigue, or worse, a hardening – a suspicion that the stranger on the screen is performing their suffering, or exaggerating it, or simply less real than the people in our own postcode. Reading a four-thousand-year-old complaint letter is, oddly, easier practice than any of that: nobody’s vote or safety turns on whether you find Ea-nasir sympathetic. But I should be honest about what that ease actually is. It is also a refuge. Feeling for a dead Babylonian costs nothing and asks nothing further of me – no vote, no donation, no uncomfortable conversation with a living neighbour whose politics I dislike. It is possible to spend a great many Saturday afternoons being admirably empathetic toward the safely deceased while getting steadily worse at it with the people next door.

VII. Ancestors as Instruction, Not Nostalgia

There is a lazy version of “learn from the past” that I want to explicitly disown, because it is not what I mean. The lazy version treats the past as a museum of lessons already learned, safely closed off, available for quotation whenever it is rhetorically convenient – “those who forget history are condemned to repeat it,” trotted out at the end of an op-ed and then promptly forgotten again. That version of history is decorative. It flatters whoever cites it and demands nothing further.

What I mean is closer to the opposite. The Mesopotamians were not condensed into a moral for our benefit. Among the laws attributed to Hammurabi is one holding a builder liable with his own life if a house he built collapsed and killed its owner – not a metaphor about accountability, an actual clause, drafted by people trying to work out what a builder owes a stranger who will sleep under his roof long after the contract is signed. They were people, carrying the same basic architecture of hope, fear, ambition, and self-deception we carry now.

VIII. Going Down The Drain – Or Not

I did not soften any of this for Luda, because I do not think children are as fragile about it as we like to pretend, and because pretending otherwise teaches them adults cannot be trusted to describe reality. Standing by the car, more or less in these words, I told her: that grown-ups are worried about machines doing the work people used to do; that some of the people meant to be running the country are more interested in keeping what they have than in being honest with her about it; that a lot of what passes for news is built to make people angry rather than to tell them what happened. I told her it sometimes looks, from where I stand, as though things are going down the drain.

Assyria overextended, militarily and administratively, until the structure could not bear its own weight. Babylon, more than once, absorbed conquest and defeat and kept writing anyway – kept doing business, kept teaching children their letters – through catastrophes that must have felt, from the inside, exactly as final as ours sometimes feel to us. Civilisations end. People, mostly, do not stop showing up to work, arguing with their neighbours, teaching their children, and writing things down so they are not forgotten. That is not optimism. It is closer to evidence.

IX. Back to the Office

The thirty minutes are almost gone. I can hear the specific quality of quiet in the Botanic Garden start to thin out, the way it always does as the morning tips over into the part of the day that belongs to other people. Soon I will close the book, finish the coffee, and walk back toward the ordinary weather I described at the start – the emails, the meetings, the manufactured urgencies – none of it any less real for the half hour I spent with a dead Mesopotamian bureaucracy.

Luda asked why bother – why an afternoon on a dead language, a dead empire, a merchant four thousand years in his grave and still angry about copper. I told her it is knowledge for its own sake, and left it there, because eight-year-olds have limited patience for their father’s editorialising.

The book comes with me. Thirty minutes. Then the office.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Tony Mundine has died in Sydney at the age of 75, following a heart attack, with family around him. His son Anthony confirmed the news while flying home to say goodbye. The tributes have already started rolling in from every corner of Australian boxing – from Danny Green to Billy Dib to fighters two generations his junior who never saw him throw a punch but grew up knowing his name regardless. That is the measure of the man. You did not need to have watched Tony Mundine fight to understand what he meant. You only needed to have grown up Black in this country to know what it meant that he did.

Because before there was a story about a champion, there was a story about a mission.

Baryulgil

Tony Mundine was born on 10 June 1951 in Baryulgil, a small Aboriginal community on the Clarence River near Grafton in northern New South Wales. Baryulgil is not a place that features in the official mythology of Australian sport, and there is a reason for that. It was home to an asbestos mine, and for decades the men, women and children of that community – many of them Mundine’s own family – lived, worked and played in the shadow of it, breathing in a poison the state knew about and did next to nothing to stop. Tony worked that mine himself as a young man, alongside stock work, before boxing gave him another road out. Baryulgil would go on to become one of this country’s most devastating case studies in institutional negligence toward a Blak community, its asbestosis and mesothelioma death toll a quiet, ongoing scandal that never received a fraction of the national attention it deserved. It is worth saying plainly, in the week we lose him: the same nation now writing warm tributes to Tony Mundine spent his childhood poisoning the town he was born in and calling it employment.

He got out through rugby league first – a promising centre three-quarter for a Grafton side, good enough to be offered a start with the Redfern All Blacks in the South Sydney Junior Rugby League at seventeen. But it was boxing, not league, that would carry the Mundine name into Australian legend, and it started the way so many Blak fighters of his generation started: in Jimmy Sharman’s travelling tent shows, taking on all comers for five pounds for three or four rounds when the show rolled through Grafton each October. Half a dozen tent fights was enough to tell McQuillan, and eventually the whole country, that this kid had something. Ern McQuillan signed him to train out of Newtown instead of sending him back to the mine over the off-season, and the trajectory of Tony Mundine’s life changed for good.

To understand what Baryulgil did to the people who grew up there, and what it therefore took for a boy from that town to become a national champion, you have to sit with the scale of it. The mine at Baryulgil operated for decades, producing chrysotile asbestos, and the tailings from it were spread through the community – used, in some accounts, to surface the very roads the children of Baryulgil walked and played on. Aboriginal men made up the bulk of the workforce, doing the most dangerous jobs for the lowest pay, with none of the protective equipment or ventilation standards that would have been considered non-negotiable at a mine employing white workers anywhere else in the state. The dust followed them home. It followed their families.

Generations of Baryulgil people would go on to die of asbestosis and mesothelioma, diseases with decades-long latency periods, meaning the mine kept killing people long after it closed. It has never received the royal commission, the compensation scheme, or the national reckoning that a disaster of that scale would have received had it happened to a white country town. That is the environment Tony Mundine was born into and worked in as a young man before boxing offered him an exit. It is not incidental to his story. It is the foundation of it.

A Career Without Precedent

What Tony Mundine went on to do in the ring has genuinely no equal in Australian boxing history. He remains the only Australian fighter to win professional titles across four separate weight divisions – middleweight, light-heavyweight, cruiserweight and heavyweight – a feat of durability, discipline and sheer physical range that nobody before or since has matched. His final professional tally reads 96 fights: 80 wins, 64 of them by knockout, 15 losses and a single draw. And of those 15 losses, not one – not a single one – came at the hands of another Australian. In sixteen years as a professional, across four weight classes, no countryman ever beat Tony Mundine. Think about what that means for a Blak fighter turning pro in 1969, in a country that was not yet a decade past the 1967 referendum, fighting in front of crowds and judges and a boxing establishment that did not always extend him the respect his record demanded.

He won the Australian middleweight title in April 1970, knocking out Billy Choules at just eighteen years old. Two years later he stepped up to heavyweight – a division he had no business winning at roughly 74 kilograms – and stopped Foster Bibron, a man carrying over twenty extra kilograms on him, in the eleventh round in Brisbane. That win alone tells you everything about what kind of fighter Tony Mundine was: not the biggest man in the room, but the hardest to put away, and the hardest to keep down. He would reclaim a version of that heavyweight title again in 1977, just to prove the first time wasn’t a fluke.

In between, he added the Commonwealth middleweight title in 1972, stopping Bunny Sterling, and then in one of the genuinely great nights of his career, travelled to Paris in November 1973 and beat Emile Griffith – a three-time former world champion – on unanimous decision. Griffith was one of the finest fighters of his era; beating him, anywhere, against anyone, was a statement. Mundine made it on the road, in a foreign ring, as a Blak kid from a mission town nobody in Paris had ever heard of.

The following year, still in Paris, he suffered a knockout loss to Bennie Briscoe – a reminder that even a fighter of Mundine’s calibre was operating against genuinely elite international company on a regular basis, not simply cleaning up soft domestic opposition between world-title tilts. Seven months later came his one shot at a genuine world title: a challenge to the legendary Carlos Monzón for the WBA world middleweight crown in Buenos Aires, in front of a hostile Argentine crowd, against arguably the greatest middleweight of his generation. Mundine was stopped in the seventh round. It was the only world title fight of his career, and he did not win it – but he made it, which in itself was an extraordinary achievement for an Aboriginal fighter from northern New South Wales in 1974, and he never spoke of that night with anything but pride. In his own words, reflecting on that fight in later years: he was just a boy from Baryulgil who found himself travelling the world, doing something he loved, on the biggest stage the sport could offer. That a loss could sit in a man’s memory as a triumph tells you something about where he started and how far he had to travel to get there.

That willingness to keep testing himself against the best available, win or lose, is part of what separates a champion of Tony Mundine’s stature from a merely good fighter who padded a record against overmatched opponents. He kept fighting and kept winning titles well into his thirties – the Australian and Commonwealth light-heavyweight crowns in 1975, the Australian cruiserweight title in 1981 – taking on quality opposition throughout, including tough losses to genuinely world-class operators like Mate Parlov, Yaqui Lopez and Murray Sutherland. He finally hung up the gloves in March 1984, after a sixteen-year professional career, with a points loss to Alex Sua in Auckland.

Fighting in a Country That Wasn’t Watching Fairly

It is worth pausing on the era in which Tony Mundine built this record, because it shapes how remarkable it really is. He turned professional in 1969, two years after the referendum that finally counted Aboriginal people in the national census and gave the Commonwealth power to legislate for Indigenous affairs – a moment often mischaracterised as having granted citizenship, when in truth it changed far less, far more slowly, than the popular memory of it suggests. Aboriginal fighters had a long and largely uncelebrated history in Australian boxing by that point, going back through the tent-show circuits that gave men like Mundine their first taste of the ring – spaces where Blak fighters could earn a wage and prove themselves, but rarely on terms that offered dignity or safety. The tent show was, in its own brutal way, one of the only doors open to a talented Aboriginal teenager in regional New South Wales in the mid-1960s. That Tony Mundine walked through it, and kept walking, until he was fighting for world titles in Buenos Aires and headlining cards in Paris, is a story of individual will operating against a set of structural conditions designed to keep men like him contained, regional, and unseen.

He fought during a period when Australian sports media was not exactly generous in its coverage of Aboriginal athletes, when the assumption of Blak inferiority still shaped how commentators, promoters and judges alike approached a fighter who did not fit the mould of who a champion was supposed to be. And still he won – not once, not in a single division, but across four of them, against Australians and international opposition alike, for the better part of two decades. There is a reason his unbeaten record against fellow Australians carries particular weight in the way this week’s tributes have been framed: in a sport and a country that did not always extend him a fair hearing, the record book itself became the argument. Nobody could talk their way around ninety-six fights and eighty wins. Nobody could talk their way around a heavyweight title won by a middleweight-sized man. The numbers did the talking Tony Mundine was too busy fighting to have to do himself.

After the Ring

Retirement did not mean stepping away from the sport, or from his community. Tony Mundine took over the Redfern gym, right beside The Block – the beating heart of Blak Sydney – and spent decades training fighters out of it, most famously his own son. Anthony Mundine had been a rugby league star in his own right before his father brought him into boxing, and under Tony’s guidance he went on to become a genuine world champion, an IBO middleweight and WBA super-middleweight titleholder. Watching Tony in his son’s corner for those world title fights, you were watching something rare: not just a trainer, but a father passing down a craft he had spent his own life mastering against odds that should never have been there in the first place. That lineage runs three generations deep now, with grandson Rahim Mundine also fighting professionally – a young man who, only last week, won his fourth career bout from as many professional fights, a detail that lands with particular weight given the timing of his grandfather’s passing.

In 1986, Tony Mundine was awarded the Medal of the Order of Australia for his services to sport and to Aboriginal youth – recognition, official and formal, of a role he had already been playing informally for years out of that Redfern gym: mentor, role model, elder statesman of a sport that had given a mission kid from Baryulgil a way to be seen, on his own terms, by a country that too often refused to see Blak excellence at all. In 2004 he received the Ella Award for Lifetime Achievement in Aboriginal and Torres Strait Islander Sport, and the following year was inducted into the Australian National Boxing Hall of Fame. He was, by any honest reckoning, one of the finest fighters this country has produced, Blak or white, and one of the most consequential.

The Redfern gym Tony Mundine ran for decades sat, quite literally, in the shadow of The Block – the small cluster of streets that became the symbolic and actual heart of urban Aboriginal Sydney from the 1970s onward, a place of both fierce community solidarity and relentless state neglect and, at various points, outright hostility from police and government alike. A boxing gym in that setting was never just a boxing gym. For generations of young Blak men and women in Redfern and beyond, it was structure, discipline, mentorship and a place to put youthful energy and anger somewhere productive, run by a man who had lived every one of those pressures himself and come out the other side a champion. Tony Mundine did not lecture the kids who came through his gym about what was possible for them. He simply stood there as proof of it, sixteen years and four weight divisions deep into an answer to the question of what a Blak fighter from a mission town could become.

What he Leaves Behind

The tributes flowing in over the last day tell their own story about the space Tony Mundine occupied in Australian life. Danny Green, one of this country’s most respected boxers, called him a gentleman deserving of enormous respect, someone he drew inspiration from watching on television as a kid, a fighter his own late father admired. Billy Dib described him as one of Australia’s greatest fighters and, more simply, a genuinely good man. Anthony’s own words, posted as he flew home, carried the rawest grief of all – a son thanking a father for a lifetime of love and support, for showing him strength, promising there would only ever be one Tony Mundine.

He was right. There will not be another career like his – four weight divisions, unbeaten by any Australian across ninety-six fights, a Griffith win in Paris, a shot at Monzón in Buenos Aires, a heavyweight title won against a man twenty kilograms heavier than him. But the boxing record, extraordinary as it is, is not really the whole story, and Tony Mundine would probably be the first to say so. The whole story starts in Baryulgil, in an asbestos mine this country should never have allowed to operate the way it did in a community it never properly protected. It runs through Jimmy Sharman’s tents, through Ern McQuillan’s gym in Newtown, through Redfern, through three generations of a fighting family that turned a legacy of survival into a legacy of excellence.

I can add a personal note of my own here. I crossed paths with Tony a number of times over the course of my career, and every single encounter left the same impression: a man of honesty and integrity, straightforward in a way that was rare and always welcome. It was a genuine pleasure whenever our paths crossed, and that is not something I say lightly about many people in public life.

Tony Mundine did not just win titles. He proved, repeatedly and unanswerably, in front of a country that did not always want to watch, that a Blak kid from a mining town in northern New South Wales could be the best in the nation across four weight divisions and never once lose to a countryman. That record stands. It will keep standing long after this week’s grief has settled into something quieter. And there is something fitting, even in the grief of this week, in the fact that his passing comes days after his grandson Rahim won his fourth professional bout. The line runs unbroken now: Baryulgil to Newtown to Paris to Buenos Aires to Redfern, mission kid to Australian champion to father of a world champion to grandfather of a young professional just beginning to write his own record. Tony Mundine spent his life proving what a Blak fighter from a town this country tried to poison and forget could become. He spent his retirement making sure that proof kept multiplying, one fighter at a time, out of a gym in the heart of Blak Sydney. That is not a small legacy. It is not even, really, a boxing legacy, though the boxing alone would be enough to secure his place in this country’s sporting history. It is a legacy of a family, and in a real sense a community, refusing to be diminished by the conditions it was handed.

Vale, Tony Mundine. There was only one of you, and this country – however slow it has always been to admit it – is better for having had you in it.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

George Orwell’s Nineteen Eighty-Four contains no computers, no facial-recognition networks, no phone-extraction kits carried in a patrol car’s boot. Its instruments of control are posters, hidden microphones, and a two-way telescreen bolted to the wall of every room that matters. And yet the novel’s vocabulary of watching remains the language most of us reach for when a government proposes to see more of its citizens than it has seen before. That is not because Orwell foresaw silicon. It is because he described, with unmatched precision, what it feels like to live inside a system that can observe you at any time, that you can never confirm is switched off, and that treats the ordinary texture of human behaviour as potential evidence. New South Wales has just given that description a new and very local text to sit beside.

In August 2026 the NSW government introduced the Crimes and Other Legislation Amendment (Further Organised Crimes Reforms) Bill 2026 to State Parliament. Framed as a response to organised crime, identity fraud and the “evasive methods” of criminal networks, the bill does three things that matter far beyond the criminal syndicates it names as its target. It creates a framework for NSW Police to access unredacted images captured by cameras on public toll roads, beginning with the Sydney Harbour Bridge and the Harbour Tunnel. It allows Transport for NSW to share driver licence and photo card images through the Commonwealth’s National Driver Licence Facial Recognition Solution, making NSW the third state, after Western Australia and South Australia, to connect its citizens’ faces to that national system. And it introduces, in what the government calls an Australian-first, a new Digital Evidence Access Order (organised crime) that a judge of the Local Court can issue on sworn application without the device first being seized under a search or crime-scene warrant. Lawful seizure at the point of arrest or a roadside stop is enough to found the application.

Each of these measures is defensible in isolation, and the government has made the defensible case for each of them. Toll cameras already exist; the bill only asks that police be allowed to see clearly what those cameras have already recorded, and only, ministers say, in investigations into serious indictable offences or missing persons. The facial-matching database is sold as a shield against identity theft, a way of confirming that the person opening a bank account with your driver’s licence is actually you. The Digital Evidence Access Order is presented as a modernisation, a recognition that criminal syndicates now operate through encrypted apps and burner phones rather than through the kind of physical evidence a 1990s search warrant was written to reach. Taken piece by piece, this is how nearly every expansion of state power over the citizen has always been sold: narrowly, urgently, and against an enemy nobody is inclined to defend.

Orwell is useful here not because Oceania is a fair caricature of contemporary New South Wales – it plainly is not – but because he isolated the structural features of a watching state that survive any change of technology or any change of stated purpose. Five of those features are worth holding up against this bill: the normalisation of an instrument that watches even when serving you; the uncertainty that turns “they might be watching” into a permanent discipline; the shrinking of the space that belongs only to you; the conversion of ordinary presence into evidence; and the political question, prior to any of the technical detail, of who gets to plug in, on what terms, and with what memory.

Taking the Government’s Case Seriously

The government’s defence of the bill deserves to be stated in its strongest form before it is tested against Orwell, because the weakest version of an opponent’s argument is the easiest one to dismiss, and dismissing it proves nothing. Organised crime in New South Wales, as the Police Minister has argued in Parliament, has changed its methods faster than the law governing police access to evidence has changed. Encrypted messaging, disposable devices, layered intermediaries and stolen or synthetic identities are not hypothetical concerns invented to justify a power grab; they are the operating methods of the criminal networks the bill’s second-reading speeches describe, and a law written around the physical evidence of an earlier era genuinely may struggle to reach them. The facial-recognition database, on the government’s account, exists to defeat identity fraud, not to track lawful citizens. Its stated national design returns only a yes-or-no match against a submitted image, rather than handing over a browsable dossier, and Western Australia and South Australia have already connected to the same system without the kind of scandal that would suggest routine misuse. The toll-camera provisions are limited, in the government’s telling, to investigations into serious indictable offences or missing persons, with a staged rollout beginning at two specific crossings rather than a blanket switch-on across the state’s road network.

It is worth noting, without yet drawing a conclusion from it, that those limits are already wider than the press release. Under section 4 of the Crimes Act 1900, a serious indictable offence is any indictable offence carrying five years’ imprisonment or more, which reaches well past organised crime into fraud, larceny and a large share of the ordinary criminal calendar. The bill’s toll-image clauses also authorise use to prevent or lessen a serious threat to life, including a child at risk, and to support coronial investigations. None of this makes the government’s case a fringe argument. An essay that pretends otherwise is not making a serious case.

The difficulty is not that this account is dishonest. It is that every one of its reassurances – the narrow purpose, the yes-or-no response, the staged rollout, the “serious indictable offence” threshold – is a policy commitment rather than a legal guarantee written into a reporting structure the public can check. Orwell’s Party never announced an intention to watch everyone constantly either; it relied on citizens being unable to verify the difference between the stated limits of a power and its actual use. A government can mean every word of its own justification and still hand a future minister, a future police commissioner, or a future set of budget pressures a tool whose only real limits are the ones nobody is required to publish. Taking the government’s case seriously does not mean accepting that good intentions at the moment of drafting settle the question of how a power will be used a decade later, once the syndicates it was built for have moved on and the infrastructure remains.

The Instrument That Serves and Watches at Once

The most famous sentence in Nineteen Eighty-Four does two jobs simultaneously. BIG BROTHER IS WATCHING YOU announces an authority, and it trains a habit: assume you are seen. The telescreen that broadcasts Party propaganda into Winston Smith’s flat completes the picture, because it cannot be switched off and it receives as well as transmits. It serves the citizen – it is, notionally, part of the furniture of ordinary life – and it also generates a permanent, searchable record of that citizen’s conduct.

The toll camera occupies exactly this double role, and that is precisely why it is such an effective vehicle for expanding police access. Nobody designed the Harbour Bridge’s tolling infrastructure as a surveillance network; it was built to bill motorists. But a camera that already exists, already photographs every vehicle that passes, and already stores that image for administrative purposes is a far easier thing to redirect toward policing than a camera built for that purpose from the start, because the redirection can be described as merely “unlocking” data that was collected anyway. In the second-reading speech, the Police Minister put the point more plainly than the talking points do: unredacted images will help police “establish cultural links” in serious and organised crime investigations. That is not a description of a billing system. It is a description of a record being asked to identify people.

The same logic underwrites the facial-recognition database. The driver’s licence photograph was taken so that a police officer or a bottle-shop clerk could confirm you are who your card says you are. Folding that photograph into a national face-matching system does not require building anything new; it only requires deciding that a record kept for one purpose may now be searched for another. The government’s national story is a one-to-one check: a submitted image, a yes or a no. That is not the whole machinery. Transport for NSW has separately been building a licence-register system capable of one-to-many identification – comparing a face against the state’s customer base to find duplicate identities. A bank-account verification and a lineup are different tools. Once both sit on top of the same photograph, and once that photograph can be set beside an unredacted image from the Bridge, the distinction is easier to announce than to keep.

This is the telescreen’s real lesson for a debate about toll cameras and licence photos: the instrument does not need to be built as an instrument of control to become one. It only needs to already be watching, for some other reason, when the state decides that the watching is useful. New South Wales did not build a surveillance network to catch organised crime. It looked at a billing system and an identity-verification system it already had, and asked what else they could be made to do.

Uncertainty as a Method of Government

Orwell’s sharpest passage on this subject does not describe constant observation. It describes the impossibility of ever knowing whether you are being observed at a given moment, and the way that impossibility becomes a habit, then an instinct: you live as though every sound is overheard and every movement is watched, because the Thought Police could be listening on your particular wire at any time, and you have no way of finding out. The Party does not need the resources to watch everyone continuously. It only needs citizens to behave as if it might.

Nothing in the NSW bill, as currently drafted, requires the government to publish how often the new toll-camera access is used, how many devices are unlocked under a Digital Evidence Access Order, which categories of offence trigger a request, or how long the harvested images, biometric templates and extracted phone data are retained before deletion. The new device-order provisions do require an issuing officer to record the grounds relied on. An internal file is not a public count. Civil liberty observers have pointed to the gap directly: there is no statutory reporting obligation and no public data mandate attached to any of the three new powers. The public is asked to trust that access will be used only for the purposes ministers name, with no external mechanism to confirm that the promise is being kept.

This is Orwell’s guesswork, translated into administrative law. A motorist crossing the Harbour Bridge cannot know whether their unredacted image has been pulled for a database check, whether their face has been run against the national facial-recognition system for an unrelated inquiry, or whether a routine roadside stop will end with a device order that no longer needs a prior search warrant to reach their phone. The uncertainty is not a side effect of imperfect drafting. It is close to structural, because a reporting regime is precisely the thing that would let citizens replace “they might be watching” with a known figure – and it is precisely the thing the bill does not provide. Storage plus search plus the absence of a public audit trail turns “the cameras are there” into “the cameras could be looking at me, and I will never find out if they were.” That is not the same claim as “NSW Police are watching everyone all the time.” It is the older and, Orwell suggests, more corrosive claim: that nobody outside the system can tell the difference between an agency that never overreaches and one that does, because neither publishes the numbers that would let anyone check.

The Shrinking of What Is Yours

Winston Smith allows himself one piece of comfort as the walls close in around him: nothing is his own except the few cubic centimetres inside his own skull. The line still assumes a residual private territory. The rest of existence has already been made observable.

A phone is not a mind. It is, for most people, the closest thing that exists to an externalised archive of a life: search history, private messages, location trails going back years, photographs never meant to leave the device, banking apps, medical appointments, contacts kept in confidence. The Digital Evidence Access Order presses directly against that archive. The order is not warrantless. A Local Court judge still has to be satisfied, on oath or affidavit, that the device was lawfully seized, that data connected to an organised-crime offence is likely to be on it, and that the specified person has relevant knowledge of it. The more accurate word for what changes in 2026 is warrant-untethered. Previously, an order could only attach to a device already seized under a search or crime-scene warrant – a warrant that itself required a magistrate to have turned their mind to that specific search before the device was ever in police hands. The bill removes that precondition for offences connected to organised crime, so a lawful seizure incidental to an ordinary arrest or a roadside stop is now enough to ground the application. The judge’s sign-off has not disappeared. The independent check that used to sit in front of it, at the point the device was taken, has.

The toll-camera provisions extend a version of the same shrinkage to people who were never driving at all. New sections 261D to 261F of the Roads Act, inserted by the bill, authorise a toll camera to capture an image of the entire vehicle, not only its number plate. Every passenger in frame, including a child in a booster seat who holds no licence, has never consented to a photograph, and appears in no government identity database, is captured in the same unredacted image and held under the same access rules as the driver under investigation. Nothing in the bill’s exemption provisions carves passengers, or minors, out of that collection.

A face captured on the road, a face matched against a government photograph, and a device reached after a field seizure are three different technologies solving three different stated problems. Together they describe a citizen – and anyone travelling with that citizen – whose location, identity and private communications can each be reached through a chain of steps that is now one link shorter than it was.

Whose Ordinary Life Becomes Evidence

Orwell’s Party does not simply punish forbidden speech. It punishes “facecrime” – an unguarded expression, a nervous tic, a habit of muttering – because any sign of abnormality is treated as evidence of concealment. The demand is not obedience to a clear law so much as the continuous performance of a loyalty that can never quite be verified.

That is not what this bill does, and the difference is worth keeping precise. Facecrime still requires Winston to have done something, even if that something is only an unguarded flicker of expression. Nothing in the licence-photo database, the toll-camera framework, or the device order requires a citizen to look like anything in particular. A driver crossing the Harbour Bridge on an ordinary Tuesday has done nothing resembling suspicious behaviour and is captured in a record that becomes available to an investigation weeks or years later, for reasons that had nothing to do with them at the time the image was taken. The echo is not that ordinary behaviour is read as concealment. This bill makes no claim to detect concealment at all. It is that ordinary presence, with no behaviour attached to it, becomes searchable evidence by default.

The NSW Council for Civil Liberties has named the cultural shift that follows from that design. Its president has argued that the reforms move NSW from a system that treats citizens as citizens, entitled to move through public space and use their own devices without becoming data points in a police investigation, toward a system that treats them as automated suspects, whose movements, faces and devices are available to be checked by default and explained only if something goes wrong. The council has also pointed to the absence of independent safeguards around the national facial-recognition system, and to an accountability gap that leaves a driver on a toll bridge, or a person whose phone is unlocked during an unrelated stop, with no practical way of knowing whether they were treated as a person of interest or swept up as a byproduct of someone else’s search.

What the Ombudsman Already Knows

Nineteen Eighty-Four offers one genuine, if thin, consolation: the Party can watch continuously and still never master the secret of what another person is actually thinking. Correlation of traces is not the same as reading a mind, and it is worth resisting the more breathless claims made about what modern surveillance tools can actually do. The comfort is thinner than it looks. A state does not need to read minds if it can already watch a life closely enough, and act on the pattern it sees. Australia’s own oversight bodies have already documented what happens when police forces are given intrusive digital powers and the checking around them is left thin.

The Commonwealth Ombudsman inspects how agencies use telecommunications interception, data-access and industry-assistance powers. In 2023–24, NSW Police accounted for 53 of the 69 voluntary technical assistance requests issued nationally – by far the heaviest use of any agency. The Ombudsman did not find a conspiracy. It found that authorising officers had not adequately demonstrated they had weighed reasonableness and proportionality before issuing the requests, often adopting the applying officer’s own reasons and relying on pre-ticked boxes. Those findings were suggestions, not formal recommendations, and they concerned a request to a company rather than compelled access to a phone. They still describe a high-volume power whose internal checking was thinner than the statute required.

The same oversight regime has gone to purpose, not only paperwork, elsewhere. In its 2022–23 inspection of covert electronic surveillance powers, the Commonwealth Ombudsman found that a state police force had issued prospective telecommunications-data authorisations for offences that did not meet the statutory threshold Parliament had set for that power, and raised comparable non-compliance across three of the agencies it reviewed that year. NSW Police was not the force named in that particular finding. But it is inspected under the same regime, and, as the TAR figures above show, it was already that year’s heaviest user of a neighbouring surveillance power with compliance gaps of its own. The pattern the Ombudsman keeps finding, across whichever agency happens to be the year’s outlier, is not that any one police force is uniquely careless. It is that a “serious offence” threshold, once written into a statute, does not enforce itself. It requires active auditing to keep it from drifting toward whatever the case in front of an officer seems to require – and that is precisely the auditing this bill does not build in.

That is the warning this bill invites the public to set aside. Unredacted toll images, a national face search and a warrant-untethered device order are each a larger step than a technical assistance request or a metadata authorisation. Nothing in the bill is built to notice if the same pattern – thin demonstration of the legal test, then use below the purpose originally sold – repeats at that larger scale.

A National Pattern, Not a Local Experiment

New South Wales is not inventing this architecture. It is joining one already built. Western Australia and South Australia are already connected to the National Driver Licence Facial Recognition Solution, and the Commonwealth’s identity-matching framework was designed from the outset to expand state by state until national coverage was complete. Each state’s decision to join is presented, as NSW’s is, as a narrow local step: that state’s fraud problem, that state’s crime concern, that state’s toll network. Taken together, the individual decisions describe a national capacity to match a face against a government-held photograph, assembled through debates that treated the national system as if it did not already exist and were not already being built around them.

The same incrementalism applies to the powers themselves. The Digital Evidence Access Order does not appear from nowhere. It follows years of expanding access to stored communications and metadata, the powers with the compliance record described above. Each new measure is narrower, in the moment it is proposed, than the sum of the measures that will surround it. That is how a watching state is built in a jurisdiction that would reject the idea if it were ever put as a single, explicit proposal: not “police may now see everything,” but a toll camera here, a facial-recognition link there, a seizure precondition quietly uncoupled from a device order, each addition sold on its own terms and assessed as though it were the last one that would ever be needed.

The Political Question Underneath the Technical One

It would be a mistake, and the kind of mistake that empties Orwell’s warning of its force, to treat every camera or database as evidence that Macquarie Street has become the Ministry of Love. The Party’s aim in Nineteen Eighty-Four is not public safety. It is power maintained through fear, language and the erasure of history, sustained for its own sake. NSW’s stated aim – disrupting organised crime networks that genuinely do exploit encrypted technology, stolen identities and cross-border anonymity – is real. Flattening that distinction cheapens the comparison.

Underneath the technical detail sits an older question, and the novel states it more plainly than any policy paper: who may plug in, on what terms, with what memory of what they have seen, and with what power to act on what they find. This bill loosens the check at the point that used to matter most – not the judge’s sign-off on the access order, which remains, but the requirement that a magistrate have already weighed a specific search before the device was in police hands. A lawful seizure at arrest or a roadside stop now does the work that warrant used to do. Nothing in the bill replaces that removal with published counts, defined retention limits, or consultation before the architecture was brought to Parliament. The NSW Council for Civil Liberties makes the same argument when it says the community should have been asked first, and that the facial-recognition system lacks the safeguards needed to justify the trust being demanded of the public.

None of this requires believing that 2026 New South Wales is Oceania. It requires refusing to forget what Orwell took a novel to make vivid: that a watching system does not need to announce its purpose as control for it to function as control, and that the safest way to lose a freedom is to have it withdrawn one administratively reasonable step at a time, each step individually defensible, until the cumulative shape of the thing is one nobody would have voted for if it had been put to them all at once, in a single sentence, on the first day. The telescreen was fiction built around a political problem Orwell could describe but had no way to build. The unredacted toll camera, the national facial-recognition database and the warrant-untethered device order are not fiction. The question the novel leaves standing – on whose terms the watching happens, and who is answerable for it afterwards – is the one this bill has not yet answered.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Introduction

Every few months, someone reaches for Slobodan Milosevic to make a point about Israel. Usually the comparison is put crudely – Hamas as the Kosovo Liberation Army, October 7 as an internal uprising, the whole apparatus of 1999 waiting to be reassembled over Gaza – and it is not hard to dismantle that version, because Hamas is not the KLA and October 7 was not a secessionist revolt. But the crude version is not the analogy anyone serious is actually making. The analogy that matters, and the one worth answering honestly, is state-to-state: two governments – Belgrade then, Jerusalem now – accused by international bodies of grave violations against a civilian population under their power, one subjected to sanctions, bombardment, and a dedicated tribunal, the other shielded at the Security Council, resupplied throughout, and never coerced. That comparison does not depend on treating Hamas as anyone’s moral equivalent. It depends only on comparing how the international system has treated two states accused of comparable categories of harm, and asking why the coercive machinery moved so differently. This essay tries to answer that question honestly, without either flattening the two wars into the same event or using their real differences to dissolve the pattern in how power, not law, has determined who gets isolated and who gets protected.

A note on timing: the active war in Gaza paused under a ceasefire that took effect on 10 October 2025, brokered as part of a twenty-point plan. Fighting has not fully stopped – violations have been reported on both sides, and by August 2026 well over a thousand Palestinians had been killed in Gaza since the ceasefire began – but the character of the conflict has shifted from open war to a fragile, contested truce with disarmament, Israeli withdrawal, and reconstruction all substantially stalled. An essay written as though the war were still at full intensity would misdescribe where things now stand, so what follows treats the active-war period and the ceasefire period as distinct phases of the same unresolved conflict.

The Yugoslav Precedent: Isolation, Bombardment and The Hague

The wars that accompanied Yugoslavia’s dissolution – Croatia from 1991 to 1995, Bosnia from 1992 to 1995, and Kosovo in 1998 and 1999 – produced some of the best-documented atrocities of the post-Cold War era. Serb forces, acting with material and political support from Belgrade, carried out campaigns of ethnic cleansing across multiple theatres: the expulsion of non-Serb populations from towns and regions, the systematic killing of civilians, and, at Srebrenica in July 1995, a massacre later ruled genocide by both the ICTY and the International Court of Justice. This is not a contested characterisation in international law; it is a settled one, established through years of forensic exhumation, survivor testimony, and documentary evidence presented to multiple tribunals.

The international response escalated in step with the atrocities, though rarely fast enough to prevent them. In 1992 the UN Security Council imposed comprehensive sanctions on the Federal Republic of Yugoslavia, including an oil embargo – a measure aimed squarely at the state apparatus prosecuting the war. A parallel arms embargo applied nominally to all parties in Bosnia, but in practice disadvantaged the Bosniak government, which had far less pre-existing access to weapons than the Serb forces it faced, a fact that remains one of the more uncomfortable footnotes of the West’s engagement. UN peacekeepers were deployed under a mandate that proved catastrophically inadequate, most infamously at Srebrenica, where a lightly armed Dutch battalion was unable to prevent the massacre it was meant to deter. It took the shock of Srebrenica to produce a harder response: NATO airstrikes against Bosnian Serb positions in the second half of 1995 helped bring the parties to the negotiating table at Dayton.

Kosovo followed a different and more radical trajectory. In 1999, after a year of violence and failed diplomacy, NATO conducted a seventy-eight-day bombing campaign against Serbia itself – an act of war against a sovereign state, undertaken without UN Security Council authorisation, because Russia and China would have vetoed any resolution permitting it. NATO governments framed the campaign as a humanitarian intervention to halt the mass expulsion of Kosovo Albanians – Human Rights Watch put the number driven from their homes during the 1999 campaign at roughly 863,000. The campaign was not bloodless for the population it claimed to protect: the same organisation estimated roughly five hundred civilian deaths resulted directly from the NATO bombing.

The legal reckoning was equally unusual, and also less complete than its reputation suggests. The UN Security Council created the International Criminal Tribunal for the former Yugoslavia in 1993, purpose-built for the conflict, and in May 1999 – while NATO’s bombs were still falling and while Milosevic remained the head of state of a country at war with the alliance prosecuting him – the tribunal indicted him. It was the first time a sitting head of state had been indicted by an international court. By the time the charges were finalised they ran to sixty-six counts spanning Kosovo, Croatia, and Bosnia: genocide, crimes against humanity, and war crimes, including the deportation of the roughly 863,000 Kosovo Albanians already noted above. Milosevic was ousted in a popular uprising in October 2000, transferred to The Hague the following year, and died in his cell in March 2006 before any verdict was reached.

But the tribunal that indicted Milosevic also, in the same period, examined and closed the file on NATO. After complaints from Yugoslav lawyers, Russian parliamentarians, and human rights groups covering the full range of allegations raised against the bombing campaign – deliberate targeting of civilians, the choice of unlawful military targets, the bombing of Serbian state television that killed sixteen civilians, the use of cluster munitions – ICTY Chief Prosecutor Carla Del Ponte’s office conducted an extensive internal review and announced in June 2000 that there was no basis to open an investigation into any of those allegations or into other incidents connected to the campaign, finding no deliberate targeting of civilians or of unlawful military targets and no evidence of the crime base needed for genocide or crimes-against-humanity charges, which had been the loudest complaint from Belgrade and Moscow but far from the only one reviewed. NATO welcomed the decision as vindication; critics, including Amnesty International, had already argued in a contemporaneous report that NATO’s targeting choices did not always meet its legal obligations. Whatever the merits of that specific legal call, the episode is itself instructive: the same institutional machinery capable of indicting a sitting head of state for war crimes reviewed serious allegations against the alliance that created and sustained it, and declined to proceed on any of them. Even the tribunal held up as the model of even-handed international justice drew a line around the conduct of the powerful actor in its own theatre of operations.

It is worth separating that finding from a second and distinct lesson the ICTY’s history teaches, because the two are often collapsed into one point when they support different arguments. Milosevic’s actual transfer to The Hague depended on a specific and narrow sequence of political conditions that had nothing to do with the tribunal’s own authority. The indictment sitting on paper in May 1999 did nothing to move him; what moved him was his defeat in Serbia’s own domestic uprising in October 2000, more than a year later. Even then, transfer required a successor government in Belgrade willing to hand him over – a government that had its own strong incentive to cooperate, since EU accession talks and the lifting of sanctions were explicitly conditioned on cooperation with the tribunal. Take away the electoral defeat, the cooperative successor government, or the EU membership carrot dangled in front of it, and Milosevic very plausibly dies as a sitting head of state who was never tried, indictment or no indictment. None of those three conditions exists, or shows any sign of emerging, in the Israeli case: there is no domestic political defeat of the current government in prospect on this issue, no successor government waiting to hand over indicted officials, and no external incentive on the scale of EU accession that Israel’s government has reason to trade for compliance with the ICC. The lesson is not that the ICC is a structurally weaker court than the ICTY was – legally, the two operate on different bases, as the following section discusses – but that even the ICTY’s celebrated success required a political alignment that was largely a matter of luck and defeat rather than of law, and that alignment is simply absent here.

Gaza After October 7: A Record Of Diplomatic Friction Without Coercion

The current phase of the Israeli-Palestinian conflict began with the Hamas-led attack of 7 October 2023, in which approximately 1,200 people in Israel were killed, the overwhelming majority of them civilians, and more than 250 people were taken hostage. Hamas is designated a terrorist organisation by the United States, the European Union, and a number of other governments; it governs Gaza while operating militarily from within its dense civilian population, using tunnel networks and, according to extensive reporting and Israeli military claims, positioning fighters and infrastructure in and around hospitals, schools, and residential buildings.

Israel’s military campaign that followed, waged at full intensity until the October 2025 ceasefire, produced very high Palestinian casualties. By August 2026, Gaza’s health ministry – which operates under Hamas authority but whose broad casualty figures have been treated as a reasonably reliable baseline by the UN and independent researchers, even as its precise breakdown by combatant status is disputed – had recorded more than 73,000 confirmed deaths since October 2023, including tens of thousands of children, alongside satellite assessments finding the large majority of structures in Gaza damaged or destroyed. Israel maintains that its targeting was directed at Hamas’s military capacity and that the civilian toll is substantially attributable to Hamas’s practice of embedding among the population it governs. Independent analyses of the resulting civilian-to-combatant casualty ratio diverge widely, and the question remains genuinely contested rather than settled.

It matters here to separate two legal problems that are often run together under the single heading of “the war in Gaza,” because they raise different questions and rest on different evidence. The first is the conduct of urban combat operations themselves: whether specific strikes on specific targets met the requirements of distinction and proportionality under the law of armed conflict, a question inseparable from the reality that Hamas fights from within a densely populated civilian area. The second is the siege: the restriction of food, fuel, medicine, and humanitarian access into Gaza, and whether that restriction amounted to starvation used as a method of warfare. These are not the same allegation. The ICC’s November 2024 arrest warrants against Prime Minister Benjamin Netanyahu and then-Defence Minister Yoav Gallant were built substantially around the second question – starvation as a method of warfare, alongside murder, persecution, and directing attacks against civilians – rather than around a claim that any individual strike was itself unlawful. Conflating the two blurs a case about the legality of a blockade with a much harder, strike-by-strike proportionality analysis that depends on operational detail rarely available to outside observers in real time.

The diplomatic and legal response to both sets of allegations was extensive in volume but limited in coercive force. The UN Security Council passed only a handful of resolutions on the war, with the United States vetoing or otherwise blocking several ceasefire-related drafts before eventually backing the negotiated truce. The General Assembly passed multiple non-binding resolutions critical of Israel’s conduct, continuing what has for decades been a disproportionately high level of General Assembly attention to Israel relative to other, often deadlier, conflicts. The International Court of Justice, hearing South Africa’s genocide case, issued provisional measures in January 2024 ordering Israel to take steps to prevent genocidal acts and permit humanitarian access – an interim order on a lower evidentiary threshold than a final judgment, not a finding of genocide. Written pleadings are scheduled to continue into 2029, and no merits judgment has been issued. Separately, and predating the war by more than a year in its legal groundwork, the ICJ issued a non-binding advisory opinion in July 2024 finding that Israel’s decades-long occupation of the Palestinian territories, including Gaza and the West Bank, is unlawful and must end as rapidly as possible – a ruling about the underlying occupation rather than about the conduct of the war itself, but one that forms part of the same body of international judicial findings against the Israeli state during this period.

What has not happened is, in a sense, the more revealing part of the record. There has been no military intervention against Israel of any kind. There has been no Yugoslavia-style comprehensive sanctions regime – no Security Council oil embargo, no coordinated international isolation of the state apparatus. The United States continued to provide military and diplomatic support throughout the war, at times attaching conditions or expressing public frustration, and it was Washington that ultimately brokered the ceasefire – a reminder that the same patron relationship that shielded Israel from coercive multilateral action was also the vehicle through which the war was eventually paused. What has been intense is public and civil-society pressure: mass protest movements across Western capitals, sustained campus activism, the Boycott, Divestment and Sanctions campaign, and a scattering of arms-export restrictions among European governments – measures that register political discomfort without approaching the coercive weight of a Security Council sanctions regime.

Five Structural Asymmetries

The disparity between these two records is real, but several structural facts help explain it without requiring a claim that international law was applied consistently in either case – and without requiring the strawman version of the Milosevic analogy that the introduction set aside.

The first asymmetry has to be built correctly, because it is the one most often argued badly on both sides. The honest comparison is not Milosevic-to-Hamas; it is Serbia-the-state to Israel-the-state, both accused of grave violations against a civilian population under their effective control. On that comparison, context matters that a Hamas-as-Milosevic framing conveniently skips: Gaza has been under an Israeli and Egyptian land, sea, and air blockade since 2007, following Hamas’s takeover of the territory, and in July 2024 the International Court of Justice found – in a non-binding but authoritative advisory opinion – that Israel’s occupation of the Palestinian territories generally is unlawful and must end. Those findings are part of the legal and political backdrop against which October 7 occurred, and any honest accounting of “who started what” has to include them rather than treating the war as beginning on a blank slate. None of that, however, erases what October 7 itself was: a cross-border attack that killed roughly 1,200 people, most of them civilians, and took more than 250 hostages, carried out by a group that governs Gaza and rejects Israel’s existence outright. Occupation and blockade help explain the conditions Hamas emerged from and operated within; they do not convert a mass-casualty attack on civilians into a legitimate act of resistance, any more than decades of grievance converted the Srebrenica massacre into anything other than what the tribunals found it to be. The two facts sit together, uncomfortably, without cancelling each other out: Israel entered this war carrying an adverse international-law finding about its underlying control of Palestinian territory, and the war itself began with an atrocity against Israeli civilians that Israel did not provoke on the day it happened, whatever the deeper history around it. Milosevic’s forces, by contrast, were not responding to an attack of that kind; they were the ones expelling and killing to consolidate ethnic control over contested territory. That remains a real difference in the two states’ postures at the point coercive action was considered, even once the occupation and blockade are placed on the scale.

The second asymmetry is alliance structure and relative power. In 1999, NATO could bomb Serbia with very limited risk of triggering a wider war between great powers; Yugoslavia had no patron capable of matching NATO’s capability or willing to risk direct confrontation to protect it. Israel occupies the opposite position: it is a close U.S. ally with an advanced conventional military and an undeclared nuclear deterrent, embedded in a decades-old bilateral relationship built on sustained military financing, intelligence cooperation, and a domestic U.S. political consensus that treats support for Israel’s security as a bipartisan baseline. There is no bloc today willing to underwrite coercive action against Israel the way NATO underwrote action against Belgrade – and, as the ICTY’s own decision not to investigate NATO shows, even the most powerful actor’s conduct within a successful war-crimes tribunal’s jurisdiction can end up outside the tribunal’s practical reach. The pattern repeats itself: powerful actors get investigated less thoroughly than weak ones, whether the tribunal in question is prosecuting Belgrade in 2000 or being asked to reach Jerusalem and Washington today.

The third is the legal architecture available in each case. The ICTY was a bespoke instrument, created by the Security Council specifically to address the Yugoslav wars, with jurisdiction that was never seriously contested by the government it ultimately prosecuted once Milosevic was out of power. The International Criminal Court, by contrast, is a treaty body whose jurisdiction over Israeli nationals is genuinely disputed as a matter of international law, given that Israel is not a party to the Rome Statute; the Court’s jurisdictional theory rests on Palestine’s accession to the Statute, a basis the United States and Israel reject as illegitimate. The asymmetry in enforceability between a Security Council-created tribunal and a contested treaty court is a structural feature of international law, not a special exemption invented for Israel – but it does mean the two proceedings are not comparable in their coercive weight, whatever the strength of the underlying allegations.

The fourth is the tactical terrain of urban combat itself. Gaza is among the most densely populated urban combat environments in modern warfare, and Hamas’s documented practice of operating from within civilian infrastructure raises genuinely distinct legal questions of distinction and proportionality – questions the Yugoslav tribunals rarely had to confront in the same form, since Serb forces were generally not fighting an adversary embedded within the attacking force’s own civilian population in the way Hamas is embedded within Gaza’s. This is not a claim that urban density excuses any particular strike; it is a claim that strike-by-strike proportionality analysis in Gaza depends on operational facts – who was in a building, what military use it had, what alternatives existed – that are far harder to establish from outside than the largely undisputed facts of 1990s ethnic-cleansing campaigns.

The fifth, and analytically separate, is the siege and access question. Restricting the flow of food, fuel, and medicine into a besieged territory is a distinct legal category from the conduct of strikes, governed by different rules – the law on starvation as a method of warfare and on humanitarian access, rather than the law of targeting. This is the category the ICC warrants centred on, and it is also the category where the post-ceasefire record has continued to generate friction between two irreconcilable accounts. Gaza’s Government Media Office has reported that only a fraction of the humanitarian trucks specified under the ceasefire agreement have actually entered the territory, with crossings periodically closed and restrictions on specific food categories persisting well after the guns fell silent; the UN’s own crossing-point tallies have likewise run well below Israeli figures for months at a stretch. COGAT, the Israeli military body that controls the crossings, reports a very different picture over the same period – tens of thousands of trucks and hundreds of thousands of tons of food and supplies delivered, several hundred trucks entering daily, and food prices in Gaza falling sharply since the ceasefire began – while disputing that the UN’s own delivery statistics capture the bulk of what it says has crossed. Neither side’s figures have been independently verified at the scale claimed, and, exactly as with the combatant-casualty question raised earlier, this essay is not in a position to adjudicate between them. What can be said is that the siege question has continued to be litigated in the court of documented, if contested, fact well into the ceasefire period, in a way the targeting question – largely frozen in the historical record of 2023–2025 – has not.

The Double Standard, Examined From Both Directions

None of this dissolves the double-standard argument; it only clarifies what the argument can and cannot support, and the strongest single piece of evidence for it may be the ICTY’s own history rather than anything unique to the Israeli case. A tribunal created by the Security Council specifically to prosecute the perpetrators of the Yugoslav wars reviewed credible allegations against the very alliance that had created the political conditions for its work, and declined to open an investigation – a decision NATO’s own leadership welcomed as vindication of a campaign it insisted had been conducted lawfully throughout. Whether or not that legal conclusion was correct on its own terms, the sequence illustrates something the Gaza comparison only extends: even functioning, well-resourced, broadly respected international tribunals have historically drawn their coercive force against weak or isolated states, and have handled allegations against powerful ones – NATO in 2000, Israel and the United States today – with considerably more caution, deference, or practical unenforceability. Israel’s position is not a novel exception to how international law works; it is closer to the rule, made visible because the case is unusually high-profile.

Critics of Israel’s treatment are correct, then, on a specific and defensible point: Western governments were willing to deploy military force and construct a dedicated international tribunal against a weaker, non-aligned state, while extending sustained diplomatic and material protection to a close strategic ally facing serious allegations of its own, and while quietly declining to pursue serious allegations against the alliance doing the prosecuting. The UN system’s decades-long pattern of disproportionate General Assembly attention to Israel cuts the other way, but the Security Council’s use of the veto to shield Israel from binding action is itself a form of double standard that predates October 2023 and continued through the war.

But critics of the Milosevic comparison, properly stated, also have a defensible point. Even accounting for occupation and blockade, Hamas is not the recognised Bosnian government NATO ultimately backed, and October 7 was a cross-border massacre of civilians by a group that also governs a civilian population and rejects the state it attacked – a legally distinct starting posture from an internal ethnic-cleansing campaign by a state government, whatever one concludes about the proportionality of what followed. And the world of 1999 was considerably more unipolar and Western-led than the multipolar landscape of the 2020s, in which a Global South-majority General Assembly, a more assertive Russia and China, and a less automatically deferential Western public opinion all pull against the kind of unchallenged Western consensus that made the NATO-ICTY combination possible in the Balkans.

There is also a third front in the double-standard argument that gets less attention than either of the first two: the selectivity of moral urgency itself. This is not a claim that international legal mechanisms have ignored Sudan or Syria – the ICC issued an arrest warrant for Omar al-Bashir over Darfur as early as 2009, and Syrian perpetrators have faced both the residual mechanisms built to preserve evidence of atrocities and a growing number of national prosecutions in European courts under universal jurisdiction. The selectivity is narrower and more specific than “no accountability”: it is a gap in protest intensity, General Assembly ritual, and Western street politics. Many of the same governments and activist movements that treat Gaza as a uniquely urgent moral emergency have shown markedly less sustained public mobilisation over comparably or more deadly conflicts in Sudan, Syria, and Yemen – wars that have produced casualty figures rivalling or exceeding Gaza’s, with far fewer mass protests in Western capitals, far less General Assembly floor time, and none of the sustained campus and civil-society campaigning that has attached to Gaza specifically. The same asymmetries that protect Israel from Security Council action also, in a different register, help explain why conflicts involving no Western-aligned party at all struggle to hold the same volume of Western public attention, whatever their formal legal treatment.

Conclusion: Not the Same War, Not the Same Enforcement

Two things can both be true, and the honest version of this comparison depends on holding them together rather than collapsing one into the other. The first is that these are not the same war. Milosevic’s forces launched and sustained campaigns of ethnic cleansing to consolidate territorial control; Israel’s campaign followed a cross-border massacre and hostage-taking by a non-state actor governing the territory it struck from, even as Israel entered that war under an adverse international-law finding about the underlying occupation, and even as the siege and targeting questions raised by its conduct since remain separately and seriously contested, at the ICJ, at the ICC, and in the documented record of the ceasefire that followed. Equating the two wars requires either ignoring how the current war began or ignoring the decades of occupation and blockade that preceded it, and a comparison that only manages one of those omissions is not more honest for having picked the more convenient one.

The second truth is that these have not been the same enforcement. Milosevic faced comprehensive sanctions, NATO bombardment, and a purpose-built tribunal because he led a militarily weak, diplomatically isolated state with no great-power patron willing to shield it – and even that tribunal, when the question turned to NATO’s own conduct, declined to press the case. Israel has faced ICJ proceedings, ICC arrest warrants, and diplomatic isolation across large parts of the UN system, but it has retained the sustained military and political backing of the United States throughout, has faced no coercive multilateral force of any kind, and reached its current ceasefire through American mediation rather than international pressure. That difference in enforcement is not primarily a difference in the underlying facts of civilian harm – Gaza’s death toll and destruction are not in serious dispute, whatever the argument over method and cause – it is a difference in what the international system has been willing, or able, to compel. Holding both truths at once means resisting two opposite temptations: treating the enforcement gap as proof that Israel’s conduct must therefore be broadly comparable to Milosevic’s, and treating the real differences between the two wars as proof that the enforcement gap does not matter. Neither equation survives contact with the actual record. What the record shows, instead, is a single consistent finding across both cases: international law’s coercive machinery moves against the isolated and the weak far more readily than it moves against the protected and the strong, regardless of how the underlying war began.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

An Essay on Disappearance, and the Politics That Could Reverse It

After a poem written a year ago, itself built on the frame of Pete Seeger’s “Where Have All the Flowers Gone”

A poem asks a question it does not expect to have answered. That is its power and its limit. An essay owes the reader more: it must try to answer, or at least show its working. This essay follows the turns of the poem it grew from – villages, children, mothers, voices, hearts, justice, conscience – and asks, in each, not only where the Palestinians have gone, but how a people can go missing in plain sight, tracked by satellites, itemised in UN reports, and still be spoken of in the passive voice, as if disappearance were weather rather than policy. It then adds an eighth turn the poem, written before any of this had a shape, could not have made: not only what has been lost, but what would have to happen to answer it.

It is worth stating the counter-case at the outset, because an argument that will not face its strongest objection is not an argument, only a mood. Israel’s actions since October 2023 did not begin in a vacuum: Hamas’s attack that month killed around 1,200 Israelis and took hostages, and no state is expected to absorb that without response. Security concerns in a region with a genuine history of attacks on Israeli civilians are real, not manufactured. The question this essay asks is not whether Israel had cause to act, but whether what has followed – measured now in the ceasefire’s own violations, not just the war that preceded it – can still be described as security, or whether it has become something else.

I write this as the child of a Holocaust survivor, and I hold, without qualification, that Israel has the right to exist within secure, internationally recognised borders, safe from the annihilationist threats that have shadowed Jewish existence within living memory. I hold, with equal and unreserved conviction, that the Palestinian people have the right to life and to self-determination. These are not two competing claims to be traded off against one another. They are the same claim, made twice, in two languages, and a politics that answers one by denying the other has already failed both.

I. The Villages

The poem’s first disappearance is of place: people torn from where they lived. This is not a metaphor drawn from 1948, however much it echoes it. Throughout 2025 – before any new legal mechanism existed to formalise it – the Israeli human rights organisation B’Tselem documented at least twenty-one Palestinian communities forcibly uprooted, fully or partially, by state-backed settler violence. Then, beginning in December 2025 and culminating on 8 February 2026 in a security cabinet decision formalised the following week by government resolution, Israeli authorities added a bureaucratic mechanism to that violence: the registration of West Bank land as Israeli state property wherever Palestinian ownership cannot be formally proven. Israel’s own finance minister has described this as a fundamental change to the legal reality on the ground; his defence minister has called it, without euphemism, a strengthening of Israel’s hold on the territory. The International Court of Justice found in July 2024 that the occupation itself is unlawful under international law and called for its end. The villages are not disappearing by accident, and they were not waiting for a new law to begin disappearing.

II. The Children

More than a million people were displaced during the two years of war in Gaza before the October 2025 ceasefire, and the ceasefire has not returned them home so much as relocated the danger. Satellite assessments published by the UN in August 2026 recorded that the destruction of buildings in Gaza has continued to rise – by nearly ten per cent – since the guns were supposed to have gone quiet. Aid agencies now describe Gaza as divided by a so-called “yellow line,” with well over half the territory under continuing Israeli military control and the population compressed into the smaller, already devastated remainder. Children are not abstractions in these figures; UN humanitarian reporting through 2026 continues to record them among the dead in strikes on tents and shelters designated as safe. A ceasefire that still produces child casualties is not, functionally, a ceasefire for the people it is supposed to protect.

III. The Mothers

Grief that cannot be witnessed does not stop being grief; it simply loses its audience. In a report published in February 2026, Amnesty International quoted a mother of three from Ras Ein al-Ouja, near Jericho, who said the fear of attacks had forced her family to put their children to bed with their shoes on, in case they had to flee without warning. She and her family were among more than six hundred people displaced from that single community after being driven out into the winter cold in January 2026. This is not rhetorical mothering, offered up for sympathy; it is a description of a specific, adapted survival behaviour, the kind that only exists because return is not assumed. Where the poem hears silence, the record shows something more precise: testimony that exists, is collected, is published – and is not acted upon. The silence is not the mothers’ absence of voice. It is the world’s absence of response.

IV. The Voices

Here the poem’s target is closest to home, and hardest to write about honestly, because it implicates the writing itself. Palestinian dead are frequently reported through passive constructions – people “were killed,” buildings “were destroyed” – that let the sentence forget its subject. Casualty figures accumulate in the tens of thousands, reported by Gaza’s Ministry of Health and increasingly corroborated rather than dismissed by UN agencies, yet public attention cycles past them in days. This is not a claim that journalism has been dishonest; it is a claim, harder to rebut, that scale and repetition dull attention in a way that individual atrocity does not, and that headline culture is not built to sustain seven hundred consecutive days of the same emergency. A voice buried in headlines has not been silenced by censorship. It has been silenced by habituation.

V. The Hearts

Turning away is a policy choice dressed as fatigue. Nearly twenty governments have formally condemned Israel’s West Bank land measures as de facto annexation; a wave of states – including Australia, the United Kingdom, France, and Canada – moved in 2025 to recognise Palestinian statehood, bringing recognition into the majority of UN member states. And yet recognition has not yet translated into consequence: the annexation measures it condemns have continued, indeed accelerated, in the months since. There is a difference between a heart that has not noticed and a heart that has noticed, spoken, and then declined to act. The latter is colder, not warmer, for having spoken first.

That turning away acquired an unambiguous vocabulary in August 2026. Itamar Ben-Gvir, Israel’s National Security Minister and a sitting member of the security cabinet, said in a podcast interview that surfaced that month that Israeli forces should carry out nightly killings of “30 to 40” people in Gaza, extending beyond anyone posing an immediate threat, because, in his words, the people in question are “not even people” and “not worthy of life.” The remark was reported consistently across outlets from Al Jazeera to ABC News and CBS News, and drew condemnation even from some of Israel’s own supporters. Whether the nightly toll he named has ever been enacted as policy is beside the point the remark actually proves: a minister who controls the country’s police and prisons judged it safe, standing where he stands, to say that a whole people are not people. Dehumanising language of this kind is not a rhetorical excess that merely accompanies violence. It is the permission structure that precedes it and outlives it.

VI. Justice

The poem’s sixth stanza asks where justice has wandered to; the honest answer is that its address is known, but no one has gone to collect it. The ICJ’s 2024 advisory opinion was unambiguous: the occupation is unlawful and must end. Advisory opinions, by design, carry no enforcement mechanism, and that design choice is itself a form of politics – international law that pronounces judgment but withholds the means of compliance is not absent justice so much as justice deliberately declawed. Impunity here is not the state of nature. It is a maintained condition, upheld by the states with the power to withdraw it and the will not to.

VII. What Answering Both Would Require

A dual-rights claim that stops at diagnosis has not yet earned its conclusion. If Israeli security and Palestinian self-determination are, as this essay has argued, the same claim made twice, then something more than moral witness is owed: an account of what actually answering both would look like, in the specific terms of borders, force, reconstruction, governance, settlers, and Hamas. To leave that unwritten is to have diagnosed a crime more carefully than one has imagined a settlement – and a settlement, unlike a diagnosis, has to survive contact with the people who would have to live inside it.

Some of this is no longer only hypothetical, though it remains contested by the parties who would have to carry it out. The UN Security Council endorsed the Trump administration’s twenty-point framework and the creation of a Board of Peace in Resolution 2803, adopted in November 2025. Building on that framework, Hamas and the other Gaza factions agreed in late July and early August 2026 to a fifteen-point roadmap under which they would surrender heavy weapons and tunnel networks in verified phases to a technocratic Palestinian body, the National Committee for the Administration of Gaza, while a multinational International Stabilization Force assumed security functions and Israeli forces withdrew from the Strip on a phased timetable. Israeli Prime Minister Benjamin Netanyahu rejected that roadmap days later, telling his Cabinet in early August that Israel would not withdraw from its current positions until Hamas was, in his own words, completely disarmed, and that the version of the agreement made public did not reflect Israel’s position. So the agreement that exists is a document Hamas has accepted and Israel has not: a genuine advance on having no document at all, but not yet the mechanism its drafters describe it as.

Reconstruction under the roadmap is meant to run through the National Committee, financed chiefly by Gulf states including Saudi Arabia and the UAE, rather than around Gazan institutions – a design choice that matters, because reconstruction imposed over the heads of the people it rebuilds for reproduces the dispossession this essay has already traced, only in concrete rather than in columns of the displaced. What the roadmap does not specify, and what this essay holds it should, is an end date for technocratic rule: a committee with no elected mandate cannot govern indefinitely without becoming its own kind of occupation, however better-intentioned. That is this essay’s own position, not a term of the agreement – the case for it is that Palestinian self-determination, the right this essay has argued for throughout, means eventual Palestinian government by election, in Gaza and the West Bank together, not permanent administration by committee.

Borders and settlers are the harder sentence, and the essay will not soften it, nor pretend anyone has agreed to it. The ICJ’s 2024 opinion is not ambiguous: the settlements are unlawful, they should be evacuated, and Israel owes reparations for their construction. No party at the Gaza negotiating table has put settler evacuation, land swaps, or financed relocation on the table for the West Bank; this is the essay’s own prescription, following directly from the ICJ’s finding, not a report on anything agreed. More than seven hundred thousand settlers now live across the West Bank and East Jerusalem, woven into services, roads, and law in ways that make evacuation politically ferocious to propose and harder still to execute – but difficulty is not a counter-argument to a legal finding, only a description of the cost of ignoring one. A negotiated route exists in outline: phased Israeli withdrawal from settlements outside the main blocs, agreed one-for-one land swaps to resolve the blocs that remain, and international financing for settler relocation, on the same model the Gaza roadmap uses for disarmament and reconstruction – costed, verified, and sequenced, rather than indefinitely deferred. Whether that route is politically survivable for any Israeli government is a genuine, open question. That it is legally and morally the correct one is not.

None of this forecloses disagreement about sequencing, guarantors, or the durability of any given ceasefire, and a reader who thinks the Board of Peace roadmap will collapse under Israel’s rejection of it – or that Hamas’s factional rivals would simply inherit any weapons it did surrender – is arguing from evidence, not from bad faith. What can fairly be said is narrower than a prediction and harder to dismiss than a wish: for Gaza, a mechanism specifying force, governance, and reconstruction together now exists in text, accepted by one party and rejected by the other, which is further than the war ever got on its own. For the West Bank, no comparable text exists at all; the essay’s own claim there is normative, not diplomatic. What both halves share is that the absence of a finished settlement is not evidence that none is possible. It is evidence of what has not yet been demanded.

VIII. Conscience

There is scripture, too, that will not let this rest as merely a matter of politics. The opening chapter of Genesis records that humanity was made “in the image of God” – not this or that nation before another, but the whole of it, each person carrying the same likeness. The rabbis of the Mishnah drew the ethical conclusion from that verse centuries before international law existed to draw it in secular terms: humanity descends from a single ancestor precisely so that no one could ever say to another, my lineage is greater than yours, and so that whoever destroys a single life is accounted as though he had destroyed an entire world. A tradition that grounds human worth in the image of God carries no exception clause for Gaza or the West Bank. If the doctrine holds anywhere, it holds there, and a minister who calls a people “not even people” has not merely made a political error. Measured against that inheritance, it is a theological one – and the inheritance does not stop at rhetoric. A conscience that will not look steadily at Ras Ein al-Ouja is the same conscience that will not pay for settler relocation, or insist that Hamas’s weapons actually leave Gaza rather than change hands. The theology and the roadmap are the same test, asked twice.

The poem’s final turn addresses the reader, and so must the essay. Conscience is not a spectator’s emotion, felt and then filed away; it is only conscience if it changes what a person or a state is willing to do next. The evidence assembled here – from UN human rights bodies, from Amnesty International, from the International Court of Justice, from Israel’s own ministers describing their own policy in their own words – does not require faith to accept, only attention. The people, the villages, the children, the mothers, and the voices this essay traces have not vanished. They have been made difficult to keep looking at. That is a different thing, and it is reversible in a way that disappearance is not. Where conscience goes, if nothing changes, is exactly where the poem feared: gone with Palestine, every one. The question the poem could only ask, this essay has tried to answer: a contested mechanism for Gaza, a normative prescription for the West Bank, and elections as the measure of whether either people is actually being allowed to govern itself. The reader’s task now is not to invent a plan of their own. It is to decide whether this one – or any plan that actually answers both claims – is worth demanding.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

I. A Letter and a Disclosure that Cannot Both Be True

At the centre of a twenty-three-year pattern of institutional failure sit two documents written by the same man, on substantially the same subject, eighteen months apart. On 9 May 2002, Angel Marina wrote to Howard Ronaldson, then Chief Executive of ACT Treasury, attaching the curriculum vitae submitted by the Commissioner in support of his application for his substantive SOGA role. On 19 December 2003, Marina lodged a formal Public Interest Disclosure again addressing what is, on its face The Commissioner’s bond fides. Yet, the two accounts do not align. Read side by side, they describe different qualifications, different chronologies, and present conflicting conclusions.

This was not lost on the Commonwealth Ombudsman’s Office. In a statement that deserves to be read carefully, an employee of that office put the contradiction plainly: the two documents “cannot coexist, and both be correct,” and it was her assessment that the material Marina presented on 9 May 2002 was the correct material. That is a significant finding. It is, in effect, an acknowledgment by an independent Commonwealth oversight body that one of two sworn or quasi-sworn accounts by Angel Marina is unreliable. Yet the same officer went on to say that her office was unable to pursue the matter further, because the relevant material had passed into the hands of the Australian Federal Police – and the AFP had made it clear that it would not investigate Marina, nor take any action that might question his integrity.

That sentence is worth sitting with. An oversight body identified a documented inconsistency capable of supporting a criminal referral, and stopped, not because the matter lacked substance, but because a law enforcement agency had already decided, for unspecified reasons (OF A PERCEIVED BIAS), that the subject of that inconsistency was untouchable. This essay sets out, in sequence, the documentary basis for that concern: the substitution of the Commissioner’s Ernst & Young application, the racial vilification recorded in contemporaneous correspondence, the AFP’s own confirmed statements about its refusal to act, a wholly fabricated document later relied upon in a criminal prosecution, and the peculiar conduct of the officer who brought that prosecution. None of this is offered as proof of a conspiracy in the cinematic sense. It is offered as a chronology, drawn from the documentary record, that raises questions no single agency has yet been willing to ask.

II. The Vanishing Curriculum Vitae

The starting point is a simple factual question: what qualifications did the Commissioner actually hold, and when? Marina’s 9 May 2002 letter to Ronaldson attached what he described as the Commissioner’s application for his substantive role, a document Marina said he had discussed with Tanya Taylor of Ernst & Young. On the face of the correspondence, this ought to have settled the question of the Commissioner’s qualifications for the record. It did not. Within roughly eighteen months, the curriculum vitae attached to the Commissioner’s personnel file in ACT Treasury had changed in its entirety, and the qualifications Marina referenced in his December 2003 Public Interest Disclosure no longer matched those in his own May 2002 letter.

There are two separate application documents at issue here, and they should not be conflated. The first is the application the Commissioner made to Ernst & Young in 2000. The second is the Commissioner’s application for the substantive ACT Treasury role in 2001 – the subject of a letter written by Meredith Whitten, the Director of Corporate Services, to the Commissioner on 13 October 2003, stating that she was returning his original application for his substantive position. In a statement to the Australian Federal Police on 8 August 2006, Whitten confirmed she had signed that letter and had returned the original document to the Commissioner. Whitten’s letter concerns the Treasury application only; it does not address, and should not be read as accounting for, what happened to the separate Ernst & Young application.

By physically returning the original Treasury application to the Commissioner rather than retaining it on the department’s own file, Whitten ensured that the one document capable of corroborating his account no longer existed within institutional custody. When the Commissioner later produced his own copy of that original to police in the course of disputing Marina’s claims, it was discounted as coming from him personally rather than from the department’s own records – police instead relied on whatever version the department itself held. The practical effect was to strip the Commissioner’s authentic original of institutional corroboration, leaving the department’s own record as the only version police were prepared to accept. The intent is clear: the intended to dismiss the Commissioner due to ongoing tensions between him and Marina, but did not wish to alert the Commissioner until it was fully prepared. Whitten was preparing the Commissioner’s personnel file.  When evidence of an application was required from ACT Treasury, Whitten used material from a secondary application for which the Commissioner had been unsuccessful, proved to be a forgery as the selection criteria did not match. This discrepancy was ignored by the AFP.

The Ernst & Young application follows an entirely separate and, on the assessment of the Commissioner’s barrister, considerably murkier trajectory. What was ultimately produced as the Commissioner’s Ernst & Young application was not his application at all. It was a copy of an application letter with a photocopied signature, that bore little resemblance to the Commissioner’s actual signature – closer, by description, to an unformed scribble than an authenticated mark. On any fair reading, what the AFP produced cannot be, the Commissioner’s actual Ernst & Young application. The barrister observed that what happened to this application remains very murky and noted – as more than coincidental – that the murkiness recurring across several distinct parts of this matter tends to trace back to meetings Angel Marina held privately, outside the knowledge of the other parties involved.

None of this proves, on its own, that either document was deliberately manipulated. Returning a file to its owner, or losing track of an application a public servant made years before, are both explicable through negligence rather than design. But across both threads the same shape recurs: at the exact point an application’s authenticity became contested, the genuine version proved unavailable to institutional scrutiny, while a substitute – either a self-sourced copy discounted for its origin, or a plainly mismatched document – stood in its place. The same shape recurs again a decade later, in starker form, in a matter that should never have produced any document at all.

III. Documented Racial Vilification

The qualifications dispute would be a matter of contested professional record if it existed in isolation. It does not. It sits alongside a documented and, on its face, extremely serious pattern of racial vilification directed at the Commissioner by Marina over the same period, corroborated contemporaneously in writing rather than reconstructed after the fact.

On 3 October 2003, the Commissioner wrote directly to the then Chief Executive, describing what he called Marina’s “unrelenting campaign of racial hatred” – a campaign serious enough that the Commissioner had, by his own account, sought the assistance of a clinical psychologist, Dr Jillian Fleming, to manage its effects. The letter refers back to an earlier written finding by the Chief Executive himself, dated 4 July 2003, in which the Chief Executive stated that allegations that Marina had assaulted and racially vilified the Commissioner had been investigated and that he was “satisfied that these events did take place,” a finding he said he had referred to the Director of Corporate Services for action. That is not an unsubstantiated grievance. It is a formal admission, by the person with statutory responsibility for the workplace, that the racial vilification occurred.

The 3 October letter goes on to describe a specific incident on 12 September 2003, in which the Commissioner found Marina alone, with the door locked, going through what turned out to be the Commissioner’s own personnel file in a colleague’s office. When confronted, Marina is recorded as having said: “there’s no room in Treasury for fucking boong cunts,” followed by “wait till you see what we’ve got in store for you.” The Commissioner swore a statutory declaration about the incident on the same day and, on the advice of his solicitor, Ms Leonie Kennedy, and his psychologist, ceased further direct interaction with Marina.

The significance of this incident extends beyond the vilification itself. Marina was found, by the Commissioner’s account sworn in an affidavit, going through the Commissioner’s personnel file – the same file whose contents changed materially in the months surrounding this period. A racially motivated threat, made while the perpetrator was in unsupervised possession of the very record later found to have been altered, is not decisive proof of who altered it. But it is precisely the kind of circumstantial connection that a genuine, independent investigation exists to test, and it is precisely the kind of connection that twenty-three years of institutional inertia has left untested.

IV. Cronyism as Policy: The AFP’s Refusal to Investigate

It would be one thing if these matters had simply fallen through administrative cracks. The record indicates something more deliberate: a considered institutional decision, made and maintained over more than two decades, not to investigate Angel Marina. The Commonwealth Ombudsman’s own account, quoted above, records the AFP stating in terms that it would not investigate Marina or take any action that might compromise him as a witness in proceedings against the Commissioner. That is not an oversight. It is a policy, articulated by the agency itself, of protecting one party to a dispute because that party had cronies in the police.

The AFP’s own statement record supports this reading. By 2006, the AFP had obtained a statement from Howard Ronaldson (which has never been provided to the Commissioner’s legal team) confirming that Marina’s 9 May 2002 letter had in fact been received by ACT Treasury and processed through normal departmental channels. That confirmation should have been the beginning of an inquiry, not the end of one: it established, from the mouth of the department’s own Chief Executive, that the qualifications Marina described in 2002 were on the official record, which made the mismatch with Marina’s own December 2003 account a documented, agency-confirmed anomaly crying out for explanation. No such inquiry followed. Attempts to report Marina’s conduct to the AFP at the Civic Police Station were repeatedly refused.

This is what cronyism looks like in institutional form: not a single corrupt act, but a standing arrangement in which an agency’s cooperation with one line of prosecution becomes the reason to foreclose an entirely separate line of inquiry into the conduct of its own witness. The effect is that a public servant making racist threats and interfering with his victim’s personnel file, who provides as variable written account of supposed facts, has never been required to explain any of it – because the agency that would ordinarily do the asking had already decided he was on its side of the ledger.

V. The ACAT Affidavit: A Document that Was Never Lodged

The consequences of that pattern were not confined to the original Treasury dispute. They resurfaced a decade later in a criminal prosecution built on a document that was never lodged with ACAT – not as an original, and not as a copy. The ACAT matter in question was one that I had a deliberate strategic interest in losing: an adverse ACAT outcome was the necessary precondition for pursuing the underlying matter before the United Nations, and my evidence in that proceeding was never finalised for that reason. The deadline for lodging an affidavit passed without anything being filed, in any form, by anyone acting for me. No affidavit, and no copy of one, was lodged by me, my solicitors, or my barrister, because no final version of the document was ever produced – the drafting was still incomplete when the deadline lapsed.

Notwithstanding this, a document purporting to be an affidavit sworn by me on 19 September 2013, together with annexures, subsequently surfaced and was treated by the AFP as though it were a genuine, lodged court document – the evidentiary basis for the charges laid against me in April 2015. Given that ACAT’s own registry holds no original record of anything lodged in this matter, the document police relied upon could not have originated from the ACAT file at all – a point never satisfactorily explained. This is not a case of an authentic document existing in two versions, a sound original and a flawed copy. It is a case of a document that never existed. Its construction was poor enough to embarrass a first-year law student –an approximation built to resemble a legal document rather than a genuine one. The dating supports this: it bears a date of 19 September 2013, yet the drafting it claims to finalise was, on the documentary record, still in progress well beyond that date and was never completed by anyone acting for me – placing its authenticity beyond serious defence rather than merely in doubt.

As with the qualifications documents discussed earlier in this chronology, no original of this affidavit has ever been produced – because there was not such document. Only a copy exists in the record relied upon by police, and a copy cannot be forensically tested for fingerprints, DNA, or the physical characteristics – pen pressure, ink transfer, genuine signature formation – that distinguish an authentic document from an invented one. The unavailability of an original here is not a matter of an authentic document being carelessly lost. It is the necessary consequence of there having been no authentic document, and indeed no lodgement of any kind, to lose.

There is a further, directly observed detail worth placing on the record. Following an ACAT hearing in this matter, a legal representative present noted Angel Marina in agitated conversation with the ACT Government’s legal representative outside the hearing room – described as visibly agitated and speaking rapidly. Whatever the explanation for that exchange, its proximity to the matter at hand, and to the man at the centre of the broader pattern described in this essay, is the kind of detail that an independent investigation would ordinarily want to explore rather than ignore.

VI. The Officer Who Prosecuted, then Sought Evidence that Could Not Exist

Perhaps the most striking single fact in this chronology concerns the conduct of the AFP officer responsible for the resulting prosecution, Senior Constable Mike Harris. Harris charged me in April 2015 with offences of using a false document and using false evidence, arising from the September 2013 document described above. Yet on 30 January 2016 – some nine months after laying those charges – Harris wrote to my former solicitors, Chamberlains, asking whether the firm held the original sworn affidavit, because, in his own words, he did not have it.

Given that no such affidavit was ever finalised or lodged, Harris’s request was for something that did not exist. Either Harris was unaware, nine months into the prosecution, that the document’s claimed provenance did not withstand scrutiny – meaning charges were laid on an evidentiary foundation never properly tested – or he suspected as much and was still attempting, after the fact, to locate something that might retrospectively support a charge already laid. Neither reading reflects well on the evidentiary base for the prosecution, and both fit the broader pattern in this chronology in which the document capable of resolving a contested question is precisely the document that does not exist.

When Harris first contacted me about the matter prior to charges being laid, he was candid that all he then possessed were poorly visible scanned copies, and he asked directly whether I held the original. I declined to engage without legal representation present, citing the family’s prior dealings with the AFP – dealings in which the AFP had consistently taken Marina’s side and declined to examine contrary evidence. Given everything documented above about the AFP’s own stated position on investigating Marina, that caution reads as reasonable rather than obstructive.

VII. Independent Agencies Acting As One

There is a structural point buried in this chronology that is more important than any single document, and it was only recently put to me in terms that crystallised it. The matters described here span multiple agencies – ACT Treasury, ACT Policing, the Australian Federal Police, the Commonwealth Ombudsman’s Office, the Director of Public Prosecutions, and ACAT itself. Each of these bodies is, in constitutional theory, independent of the others. Each has its own statutory mandate, its own decision-making processes, and its own duty to assess the evidence before it on its own terms.

In practice, on the record set out above, they did not operate that way. Instead, they behaved as extensions of a single institutional will, generally following the lead set by the AFP. The Commonwealth Ombudsman identified a genuine, documented inconsistency in Marina’s own evidence and declined to pursue it, not because the inconsistency lacked substance, but because the AFP had already signalled it would not act against Marina. ACT Treasury’s own personnel and disciplinary processes, having formally found that racial vilification occurred, appear not to have produced any lasting consequence for Marina. The prosecution built on the 2013 document proceeded despite an evidentiary gap – the fact that no affidavit was ever lodged by me – that should have been resolved before charges were laid, not chased down nine months afterward.

This is the deeper failure. Had even one of these agencies exercised genuine independence – had the Ombudsman pressed its own finding regardless of the AFP’s stated position, or had ACT Treasury’s disciplinary process run its natural course irrespective of the AFP’s parallel interest in Marina as a witness – this chronology could plausibly have unfolded very differently. The system of checks that separate agencies are meant to provide against one another’s blind spots did not function, because in this case, the several agencies were not checking each other. They were converging.

VIII. The Numbers Behind The Silence

None of the above proves that race was the operative reason for the pattern described in this essay. But it does not need to be examined in a vacuum, and the broader statistical context of Indigenous experience with the ACT justice system is not favourable to the proposition that these were simply unconnected administrative failures. Recent Report on Government Services data places the ACT’s Indigenous-to-non-Indigenous imprisonment disparity ratio at around 25.4 – meaning an Indigenous person in the ACT is imprisoned at roughly twenty-five times the rate of a non-Indigenous person – against a national average closer to 18.8. On this measure, the ACT has one of the highest disparity ratios in the country, notwithstanding that its overall, and non-Indigenous, imprisonment rate is comparatively low.

That combination is worth pausing on. A jurisdiction can produce an extreme disparity ratio in one of two broad ways: by imprisoning Indigenous people at an unusually high rate, or by imprisoning non-Indigenous people at an unusually low rate, or some mixture of both. The ACT achieves its extreme ratio substantially through the second path – a low non-Indigenous imprisonment rate sitting alongside a high Indigenous one. One plausible contributing explanation, consistent with everything documented in this essay, is that offences committed by non-Indigenous people against Indigenous people in the ACT are less likely to be investigated and prosecuted in the first place, which would depress the non-Indigenous imprisonment rate without reflecting any genuine difference in offending. This essay does not claim to have proven that mechanism. It claims that the mechanism is consistent with, and would help explain, the specific twenty-three-year pattern of non-investigation documented above – a pattern in which an agency openly declined to pursue serious allegations against a non-Indigenous public servant because of an unrelated prosecutorial convenience.

IX. Conclusion: What Independent Investigation Would Actually Require

Nothing in this essay depends on assuming the worst interpretation of every ambiguous fact. Documents can be lost through negligence rather than design. Prosecutors can seek evidence months after laying charges through ordinary case-management delay rather than malpractice. Colleagues can have heated exchanges outside hearing rooms for reasons that have nothing to do with the matter at hand. Each individual fact in this chronology admits of an innocent explanation, considered on its own.

What is far harder to explain innocently is the accumulation: a Treasury application whose original was handed back to its owner and then discounted by police for that very reason, while the department’s own retained version went unquestioned; a separate Ernst & Young application whose fate the Commissioner’s own barrister called very murky, replaced in the record by a plainly mismatched substitute; a formal, written finding that racial vilification occurred, followed by no visible consequence; a threat recorded verbatim in a contemporaneous, solicitor-advised statutory declaration; an Ombudsman’s officer stating plainly that a documented inconsistency could not be pursued because a second agency had ruled the subject off-limits; a criminal prosecution built on a 2013 document that could not have been genuine, because no such affidavit – not even a copy – was ever finalised or lodged by me or my lawyers; and a prosecuting officer seeking, nine months after laying charges, the original of a document that never existed to begin with.

A genuinely independent investigation – one not filtered through an agency that has already declared an interest in protecting a witness – would need to do a small number of concrete things that have not yet been done in twenty-three years. It would need to establish why the Commissioner’s own copy of his Treasury application was discounted while the department’s retained version was not, and to locate and examine the original Ernst & Young application, establishing why a mismatched document was substituted in its place. It would need to establish who produced the 2013 document relied upon by police, given that no genuine affidavit was ever finalised or lodged, and how a document absent from ACAT’s own registry came to be treated as a lodged court record. It would need to reconcile the qualifications in Marina’s 2002 letter against his 2003 Public Interest Disclosure and require him to account for the discrepancy. It would need to ask why a formal finding of racial vilification produced no recorded disciplinary consequence. And it would need to explain the AFP’s own stated policy of declining to investigate a serving witness regardless of the evidence against him.

None of these steps require speculation. They require only that the various agencies with jurisdiction over pieces of this chronology be permitted, for the first time, to act as the independent bodies they are constitutionally supposed to be. Twenty-three years is a long time for that not to have happened. It should not take a twenty-fourth.

– – –

Post updated 30 August 2026.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Every constitutional democracy eventually confronts a moment when the ordinary machinery of law seems inadequate to the crisis at hand. A pandemic outstrips existing public health statutes. A terrorist atrocity exposes gaps in surveillance and detention powers. An economic collapse demands executive action faster than parliament can legislate. In each case, the instinct of government is the same: draft an emergency provision, grant the executive extraordinary and temporary authority, and promise that the powers will lapse once the danger has passed. This instinct is not unreasonable. Genuine emergencies do sometimes require flexibility that ordinary legislative process cannot supply quickly enough. But the historical record offers a sobering counter-lesson: emergency powers rarely behave as promised. They tend to outlive the emergencies that justified them, and in the hands of a government less scrupulous than the one that enacted them, they become instruments not of protection but of domination. The danger is structural, not incidental – it inheres in the very nature of law as a durable text that survives the intentions of its drafters.

The Logic of the Trap

The trap operates through a predictable sequence. First, a crisis creates political consensus that ordinary constraints on power must be loosened, if only briefly. Second, the legislation drafted to meet that crisis is written broadly and vaguely, because urgency leaves little time for precision and because broad language is easier to agree upon than narrow language that might exclude some contingency the drafters have not foreseen. Third, the law is passed with an implicit or explicit understanding that it is exceptional – a deviation from the constitutional baseline rather than a new baseline itself. Fourth, and most dangerously, the law is rarely accompanied by mechanisms robust enough to guarantee its own expiry. Sunset clauses, where they exist, are often extended rather than allowed to lapse. Judicial review is frequently deferential precisely because courts, too, are reluctant to second-guess executive judgment during a declared emergency. Parliamentary oversight, meanwhile, depends on a legislature willing to reassert itself against an executive that has just been granted extraordinary authority – a dynamic that consistently favours the executive, since incumbency, information asymmetry, and the political cost of appearing “soft” on the crisis all work against reversal.

Once these conditions are in place, the statute becomes available to any future government, regardless of that government’s fidelity to the values that produced the original law. This is the deepest danger: the emergency provision does not merely persist as dead text. It persists as a live grant of power, fully legitimated by its provenance in ordinary legislative process, waiting to be picked up by hands very different from those that forged it. A later government does not need to overthrow the constitutional order to acquire dictatorial capacity; it need only reinterpret and intensify an instrument that democratic process has already sanctioned. This is what makes the danger so much harder to see coming than an outright coup. There is no dramatic rupture, no visible seizure of power – only the quiet redeployment of an existing legal tool toward purposes its authors never intended and might have found abhorrent.

Weimar Germany: The Archetype

No case illustrates this mechanism more starkly than the collapse of the Weimar Republic, and it is worth dwelling on because it supplies the template against which every subsequent instance of emergency-power abuse can usefully be measured. Article 48 of the 1919 Weimar Constitution empowered the Reich President, whenever public security and order were “seriously disturbed or endangered,” to take whatever measures were necessary to restore them, including the suspension of core civil liberties – personal freedom, freedom of expression, the right of assembly, and the inviolability of the home and of correspondence. This was not a cynical provision. It reflected the genuine anxieties of a constitutional convention meeting in the aftermath of a lost war, a revolutionary uprising, and the collapse of the old imperial order. Its drafters wanted a democracy resilient enough to survive its own birth pangs, and they trusted that a president elected by the whole nation would use such power sparingly and in good faith. Friedrich Ebert, the Republic’s first president, invoked Article 48 more than a hundred times during the 1920s, mostly to address currency crises, regional uprisings, and administrative deadlock – disruptive, but recognisably within the spirit of the provision.

That good faith was not transferable. On 28 February 1933, one day after the Reichstag fire, President Paul von Hindenburg – by then an elderly figure increasingly detached from the machinations around him – signed the Decree for the Protection of People and State under the authority of Article 48. The decree suspended, without any fixed end date, precisely the liberties the article had been designed to protect in the ordinary run of politics: freedom of the press, freedom of assembly, the secrecy of the post and telephone, the inviolability of property and the home. It authorised “protective custody,” a euphemism for indefinite detention outside any judicial process. Nothing about the constitutional text had changed. The words of Article 48 in March 1933 were identical to the words that Ebert had once used to stabilise the Republic. What had changed was who held the pen, and what they intended to do with it. Within weeks the decree had become the legal foundation for the mass arrest of Communist and Social Democratic politicians, the closure of opposition newspapers, and the establishment of the first concentration camps at Dachau and elsewhere – all of this accomplished, notably, without a single line of new emergency legislation. The Enabling Act that followed in March 1933 compounded the damage by allowing the cabinet to legislate without the Reichstag altogether, but it is worth stressing that the initial and most consequential seizure of extra-constitutional power required no new statute at all. It required only an old one, applied without restraint by people who did not share the assumptions of those who wrote it.

Paragraph 175: The Ordinary Statute Repurposed

A second, quieter example from the same period shows that the danger is not confined to grand constitutional emergency clauses; it extends equally to ordinary criminal law drafted for entirely different purposes. Paragraph 175 of the German Criminal Code, dating from the unification of the Reich in 1871, criminalised sexual acts between men. It was a product of nineteenth-century moral regulation, enforced inconsistently and, by Weimar standards, relatively rarely – a statute more often invoked to police conventional morality than as an instrument of mass persecution. When the Nazi regime came to power, it did not need to invent a new category of criminal offence in order to persecute homosexual men; the category already existed, sanctified by six decades of legal continuity. In 1935 the regime simply broadened Paragraph 175’s language, widened the scope of prohibited conduct, and directed the police and courts to enforce it with unprecedented severity. Convictions increased more than fivefold. Tens of thousands of men were imprisoned, and a significant number were subsequently transferred to concentration camps, where they were marked with the pink triangle and subjected to conditions designed to kill.

The lesson here is distinct from, though complementary to, the lesson of Article 48. Emergency clauses invite abuse because their language is deliberately elastic – “public security,” “order,” “necessary measures” are terms built to flex under pressure. Ordinary criminal statutes invite a different kind of abuse: not reinterpretation of ambiguous language so much as escalation of an already-settled category. Once society has accepted that a certain class of conduct may legitimately be criminalised, an unscrupulous regime need only redefine the boundaries of that class and intensify enforcement to convert a statute of modest, targeted application into an engine of systematic persecution. The mere fact that a prohibition already exists lowers the political and rhetorical cost of expanding it. Legislators inherit not a blank page but a foundation, and foundations are far easier to build upon than to lay from scratch.

The Pattern Repeats: Comparative Cases

Germany’s experience is extreme, but it is not unique, and the recurrence of the pattern across very different political systems and eras is what should trouble us most, because it suggests a general vulnerability in the architecture of emergency and quasi-emergency legislation rather than a peculiarity of Weimar or of Nazism.

India’s Emergency of 1975–77 offers a democratic-era parallel. Prime Minister Indira Gandhi, invoking Article 352 of the Indian Constitution on grounds of “internal disturbance,” suspended fundamental rights, jailed opposition leaders and journalists without trial, imposed press censorship, and ruled by decree for nearly two years. The provision she invoked had been drafted by the framers of India’s constitution with external aggression and genuine internal breakdown in mind; it was not designed as a mechanism for a sitting prime minister to entrench her own rule against an adverse court judgment and a mobilising opposition. Nonetheless, the constitutional text supplied exactly the tool required, and India’s judiciary – with a few honourable dissents – largely deferred to executive discretion during the crisis, most infamously in the Supreme Court’s 1976 ruling that even the right to life could be suspended under the Emergency.

Egypt supplies an example of emergency law becoming not an episode but a permanent condition of governance. A state of emergency, first declared in 1958 and renewed almost continuously – with only brief interruptions – for over six decades, provided successive Egyptian governments with sweeping powers of arrest, detention without charge, and restriction on public assembly and the press, all justified initially by external threat and later by domestic insurgency. What began as a response to specific security conditions became, through uninterrupted renewal, the ordinary operating framework of the Egyptian state, such that emergency governance and governance itself became difficult to distinguish.

Even mature, stable democracies are not immune. The USA PATRIOT Act, passed six weeks after the attacks of 11 September 2001 with almost no dissent and minimal debate, dramatically expanded surveillance authority, permitted indefinite detention of non-citizens, and lowered the evidentiary threshold for search warrants under the banner of counter-terrorism. Several of its provisions carried sunset clauses – a safeguard the Weimar and Egyptian examples lacked – yet those clauses were repeatedly reauthorised by successive Congresses for close to two decades, and the surveillance infrastructure the Act helped legitimate was later revealed, through Edward Snowden’s disclosures, to have been extended by intelligence agencies to bulk data collection on ordinary citizens far beyond anything the original counter-terrorism rationale could justify. The United Kingdom’s post-2000 counter-terrorism legislation followed a comparable trajectory, and here the figures are precise enough to be worth stating. Control orders, introduced under the Prevention of Terrorism Act 2005 after the House of Lords struck down the preceding regime of indefinite detention without trial, were imposed on fifty-two individuals between 2005 and 2011; by the time the regime was replaced, only nine orders remained in force, a gap the Independent Reviewer of Terrorism Legislation cited as evidence the power had been significantly over-drawn relative to its actual operational need. Their 2011 replacement, Terrorism Prevention and Investigation Measures, was deliberately capped at a maximum of two years’ duration for any individual – a genuine, hard-edged sunset provision built into the statute itself. That cap held for a decade. In 2021, the Counter-Terrorism and Sentencing Act removed it, allowing TPIMs to be renewed indefinitely provided the original statutory conditions continued to be met. The episode compresses the entire argument of this essay into a single decade: a hard sunset clause was written, it worked exactly as intended for ten years, and it was then quietly dismantled by ordinary legislative amendment, with the power that had once been temporary by design becoming permanent by amendment.

Australia’s own experience, though less dramatic than these examples, follows the identical structural logic and deserves attention precisely because it demonstrates that the danger is not confined to authoritarian regimes or societies in acute crisis. The tranche of counter-terrorism legislation passed in the years following 2001 and 2005 – preventative detention orders, control orders, expanded ASIO questioning and detention powers, and later the broadened metadata retention regime – was justified in each case by reference to a specific and pressing security concern. Successive Independent National Security Legislation Monitors have since documented how elements of that framework have been retained, and in some cases extended, well beyond the period in which the originating threat assessment applied, with oversight and review mechanisms frequently criticised as inadequate to the scope of the powers granted. None of this amounts to a Weimar-scale catastrophe. But the mechanism is the same mechanism, and again the detail is instructive. Control orders under Division 104 of the Criminal Code Act 1995 carry a sunset clause of their own – five years, renewable by ordinary parliamentary vote rather than supermajority. Following the most recent review in 2023, the regime was extended to December 2026, the latest in a sequence of routine renewals stretching back to the provision’s original enactment in 2005. A sunset clause of this kind imposes almost no real constraint: renewal requires nothing more than the same simple majority that created the power in the first place, and the political cost of voting against renewal – appearing to relax counter-terrorism settings – is far higher than the cost of a routine, largely unscrutinised re-tick. The mechanism is broad drafting, weak sunset provisions, deferential review, and a political incentive structure in which no government wishes to be the one that “weakened” national security by allowing a power to lapse – even when the specific threat that justified it has receded or transformed.

Hungary’s response to the COVID-19 pandemic offers a more recent and more compressed illustration of the same dynamic. In March 2020, the Hungarian parliament passed the Authorisation Act, permitting Prime Minister Viktor Orbán’s government to rule by decree, suspend the operation of existing legislation, and postpone elections for the duration of the declared state of danger – with no fixed end date written into the law itself. The stated justification was the pandemic, a genuine public health emergency shared by every country in the world. Yet the government simultaneously used its decree powers to criminalise the publication of “false” information about the epidemic in terms broad enough to chill ordinary journalism, and it retained significant elements of the expanded executive authority well after the immediate public health justification had receded, illustrating within the span of a single parliamentary term the entire arc that took Germany fourteen years to complete: emergency declaration, executive rule by decree, and quiet retention of powers whose original rationale had already lapsed.

When the Safeguards Held

The pattern is not universal, and it is worth pausing on the exceptions, because they show that the containment this essay calls for is not a purely theoretical proposition – it has happened, under real political pressure, and it is useful to see precisely what made it possible.

The origin of the UK’s control order regime is itself one such case. The indefinite detention without trial of foreign terrorism suspects at Belmarsh prison, authorised under Part 4 of the Anti-Terrorism, Crime and Security Act 2001, was struck down by the House of Lords in A and Others v Secretary of State for the Home Department (2004), which held that indefinite detention limited to foreign nationals was a disproportionate and unlawfully discriminatory response that could not be justified even under a declared public emergency. The ruling did not end executive counter-terrorism power in the UK – it forced its reformulation into the control order regime discussed above – but it stands as a genuine instance of a senior court refusing to defer to the executive’s own assessment of necessity, and it is precisely the kind of independent judicial check this essay argues is chronically underused.

A cleaner case of outright lapse comes from the United States. Section 215 of the PATRIOT Act, the provision underpinning the NSA’s bulk telephone metadata collection exposed by Edward Snowden in 2013, was first narrowed by the USA FREEDOM Act of 2015 and then, when Congress could not agree on reauthorisation terms, allowed to expire altogether on 15 March 2020. No replacement was enacted. The authority simply lapsed, and the underlying bulk-collection program had, by the government’s own later admission, already been quietly shut down for operational reasons some months earlier. It is the rare example in this essay of an emergency-derived surveillance power ending not through political drama but through the ordinary, unglamorous failure of Congress to agree on its extension – precisely the outcome a hard sunset clause is designed to make possible.

A third example brings the pattern into the pandemic era and answers the case for a genuinely contemporary, digital-age instance. In March 2020, Israel’s government authorised its domestic intelligence service, Shin Bet – an agency whose ordinary legal mandate is national security, not public health – to track the mobile phones of COVID-19 patients and those who had crossed their paths, doing so by emergency regulation rather than primary legislation. Civil rights groups petitioned immediately, and on 26 April 2020 Israel’s High Court of Justice ruled that the General Security Service Law provided no lawful basis for the Shin Bet to be turned to a purpose so far removed from its statutory function, and that continued surveillance of this kind required the government to go to the Knesset and legislate openly rather than govern by emergency decree. The court’s language is worth noting: it warned explicitly of a “slippery slope” in the use of “extraordinary and harmful tools” against ordinary citizens. The episode is not an unqualified success – the Knesset went on to authorise a narrower, time-limited version of the same tracking power, repeatedly renewed in three-week increments through subsequent case surges – but it demonstrates that even a powerful security agency’s emergency mandate can be halted by a court applying ordinary principles of legality, and it shows that the digital character of a twenty-first-century emergency power does not place it beyond the reach of the same safeguards that constrained Article 48 or Section 215.

What unites these three episodes is not that the underlying power disappeared for good – in the UK and Israeli cases it did not, and even in the American case adjacent surveillance authorities under other statutes remained available. What they share is that some part of the machinery this essay recommends – a court willing to test proportionality against a declared emergency, a sunset clause with a genuine possibility of lapsing, a judiciary insisting that novel powers be legislated openly rather than governed by decree – actually functioned as designed, at least once. The lesson is not that containment is easy. It plainly is not, given how quickly the UK Parliament removed the TPIM cap once it had proved inconvenient. The lesson is that containment is possible, that it depends on specific, identifiable mechanisms rather than good intentions, and that those mechanisms only work when something or someone is prepared to use them against a government that would rather they went unused.

Why the Danger Persists

Four structural features recur across every one of these cases, and understanding them is essential to understanding why the danger is so difficult to legislate away.

First, urgency and precision are in permanent tension. Legislation drafted in the shadow of a crisis is, almost by definition, drafted quickly, and speed is the enemy of careful boundary-setting. Terms like “public security,” “national emergency,” “unnatural conduct,” or “reasonably necessary” are chosen because they command consensus across a legislature that may otherwise disagree about almost everything else – but that same elasticity is precisely what permits a later government, operating in entirely different political circumstances, to pour new content into old words.

Second, the institutional mechanisms that might constrain misuse – sunset clauses, mandatory reauthorisation, independent judicial review – are chronically underused or insufficiently robust, and where they exist, they are vulnerable to the same political dynamics that produced the original law. A sunset clause that requires only a simple parliamentary majority to renew provides little more protection than no sunset clause at all, particularly when opposing renewal can be characterised, however unfairly, as indifference to public safety.

Third, all of these arrangements rest on an unspoken assumption of institutional continuity and good faith: that whoever next occupies the relevant office will share, more or less, the values and restraint of those who wrote the law. History supplies no basis for that assumption. Constitutions and statutes are inherited by people the original drafters never met and could not have vetted, and the text does not carry the drafters’ intentions forward with it – only their words, available to be read however a new government chooses to read them.

Fourth, mere existence breeds normalisation, and this process has a bureaucratic engine that is worth examining on its own terms rather than treating as a vague cultural drift. An emergency power is rarely administered by the politicians who voted for it; it is administered by an agency, a division, a unit of officers trained in its use, and that apparatus does not disappear when political attention moves elsewhere. Budgets are allocated, personnel are recruited and promoted on the basis of their expertise in wielding the power, and internal reporting lines and performance metrics come to assume the power’s continued existence as a baseline condition of the agency’s work. Officials whose professional standing depends on a power’s continuation have every incentive to argue, in the technical and unglamorous language of annual reviews and risk assessments, that the threat has not really receded, or that the power now serves purposes subtly broader than those for which it was first granted – the fourteen-day detention regime extended by the states beyond the Commonwealth’s original forty-eight hours, the TPIM cap quietly removed once a decade of officials had grown accustomed to indefinite renewal being merely one legislative amendment away. Each annual reauthorisation, each five-year sunset review, becomes progressively easier to wave through precisely because it has been waved through before: path dependence operates not because anyone consciously decides the power should become permanent, but because reversing course requires an affirmative act of political will against an entrenched administrative status quo, while renewal requires only inertia. What begins as an extraordinary, closely scrutinised departure from constitutional baseline gradually becomes an unremarkable feature of the administrative landscape – invoked routinely, defended reflexively by the very apparatus built to invoke it, and eventually so embedded in ordinary governance that its removal comes to look like the radical step, rather than its original enactment.

Toward Durable Safeguards

None of this counsels abandoning emergency powers altogether; genuine crises do occur, and a state entirely incapable of rapid, flexible response is not obviously safer than one that retains such capacity under strict conditions. The task is to design emergency and quasi-emergency legislation so that its temporary character is structurally enforced rather than merely asserted in a preamble.

Several safeguards recur, in varying combinations, wherever emergency powers have been successfully contained. Automatic and genuinely hard sunset clauses – requiring an affirmative supermajority vote to extend, rather than a simple majority, and lapsing by default if that vote fails – shift the political burden from those who would end a power to those who would prolong it. Precise, narrowly drawn triggering conditions, rather than open-textured phrases like “public order” or “national emergency,” reduce the interpretive room available to a later government seeking to repurpose the provision. Mandatory, meaningful parliamentary reauthorisation on a short cycle – months rather than years – keeps the political cost of renewal visible and recurring, rather than allowing a power to fade into administrative background noise. Independent judicial review with a genuine capacity and willingness to strike down or narrow executive action, rather than the reflexive deference courts have historically shown during declared emergencies, supplies a check that does not depend on the same political incentives that constrain the legislature. Sunset provisions and reauthorisation requirements should also be paired with independent, statutorily empowered monitors – bodies modelled on arrangements such as the Independent National Security Legislation Monitor – tasked specifically with assessing whether the original threat still justifies the retained power, and with public reporting obligations that make quiet extension harder to accomplish unnoticed.

Beyond formal mechanisms, something less tangible but equally important is required: a constitutional culture that treats emergency power as inherently exceptional and provisional, never as a convenient permanent addition to the ordinary toolkit of governance. This is ultimately a matter of civic vigilance as much as legal design. The drafters of Article 48 and of Paragraph 175 did not write those provisions with Hindenburg’s 1933 decree or Himmler’s 1935 police directives in mind. That is precisely the point, and precisely the danger: they did not need to. A statute, once enacted, does not require its authors’ complicity in order to be misused by their successors. It only requires that it continue to exist, unrepealed, unrefined, and available.

Conclusion

The through-line connecting the Weimar Republic’s Article 48, the expanded Paragraph 175, and their contemporary analogues in India, Egypt, the United States, the United Kingdom, Hungary, Israel, and Australia is not that emergency legislation is always drafted in bad faith. Quite the opposite – nearly every example canvassed here began as a good-faith, often genuinely necessary response to a real and pressing danger. The tragedy is structural rather than moral: legislation outlives the political context and the personnel who produced it, and its formal legitimacy – the fact that it was passed through ordinary democratic process, by people who meant well – travels forward with the text, ready to be claimed by anyone who next controls the levers of the state. A concentration camp system did not require the invention of new legal categories in 1933; it required only the redeployment of an existing one. The persecution of homosexual men under the Third Reich did not require Parliament to create a new crime in 1935; it required only the intensification of an old one. This is the enduring risk of any legislation whose original purpose is narrow but whose textual reach is broad: the gap between purpose and text is exactly the space in which tyranny finds room to work. Guarding against it demands more than good intentions at the moment of enactment. It demands structures – hard sunsets, narrow triggers, genuine reauthorisation, independent review – built with the explicit and uncomfortable assumption that the next hand on the lever may not be a trustworthy one.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

My uncle was a Holocaust survivor and a humanist – Jewish, obviously, though that fact is almost incidental to this story. As a boy I was lucky enough to spend time with him in Paris, where I received a first-rate education in humanism, classical languages, and the moral seriousness of literature. He was exacting. At Pompeii, if I could not ask for a glass of water in Latin, I did not get one. It sounds like a small thing, a pedant’s game, but it tells you something about the man: knowledge and ethics were, for him, inseparable disciplines, and both had to be earned. The first Greek play he gave me to read was Aeschylus’ Suppliants. It has stayed with me ever since, and I return to it now to think through our obligations to refugees and to the homeless of the earth.

Aeschylus’ Suppliants (also known as The Suppliant Women or Suppliant Maidens), produced around 463 BCE, remains one of the most direct dramatic explorations in surviving ancient literature of the ethics and politics of receiving refugees. The play stages the arrival in Argos of the fifty Danaids – daughters of Danaus – who have fled Egypt to escape forced marriage to their cousins, the sons of Aegyptus. They arrive as foreign women, perform the ritual of hiketeia (supplication), and petition King Pelasgus for protection. What follows is not a simple morality tale but a sustained examination of competing claims: the sacred duty owed to the vulnerable stranger, the practical risks to the host community, and the difficult, distinctly political process of collective decision-making under uncertainty. In an era marked by large-scale displacement, the tragedy offers a framework for arguing that societies carry genuine moral obligations to those fleeing persecution, while refusing to sentimentalise the dangers that accompany acceptance. The play insists that both the obligation and the dangers are real, and that responsible action requires confronting both without collapsing into either absolutist openness or reflexive exclusion. This is, I think, its permanent value: not as a policy manual but as a discipline of honest reckoning.

The Plot and Structure

The plot centres on the Danaids’ flight and their appeal. Having left “the delicate soil bordering Syria,” in the words of one common rendering, they cross the sea and reach the shore of Argos, taking refuge at the altars and invoking Zeus Hikesios, the protector of suppliants. Their father Danaus, who has accompanied them, advises restraint and humility: they are to present themselves as helpless, modest, and respectful of Argive customs, aware that their situation as unmarried foreign women arriving unescorted might easily be misread. When King Pelasgus appears, the women advance both a moral and a genealogical claim. They emphasise their vulnerability and invoke a distant kinship through the Argive princess Io, who – transformed into a heifer and driven by a gadfly across the known world in an earlier myth – had wandered to Egypt generations before and become their ancestress. The claim of kinship is real but attenuated; centuries and a change of country separate the Danaids from any straightforward Argive identity.

Pelasgus faces an immediate and structurally difficult dilemma. To reject the suppliants risks the wrath of Zeus and the ritual pollution (miasma) of the land – a danger the Greek audience would have understood as neither superstitious decoration nor mere plot device but a live theological and civic hazard. To accept them, however, invites war with the pursuing Egyptian force and potential division within Argos itself. Rather than decide unilaterally, the king does something notable for a monarch in early Greek myth: he refers the matter to the Argive assembly, refusing to let the fate of a city rest on his private judgment or his private virtue. The people vote to grant the women asylia – protection from seizure – along with a form of resident status. When the Egyptian herald arrives and attempts to drag the women away by force, in one of the play’s most physically violent scenes, the Argives stand by their collective decision, accepting the near-certainty of conflict. The surviving play ends with the Danaids under Argive protection, their immediate safety secured but their future radically unresolved. The larger trilogy, of which only this first play survives complete, apparently continued into far darker territory: the forced marriages eventually proceed, and – according to later mythographic tradition – the Danaids kill their husbands on their wedding night, all but one of them, Hypermnestra, who spares her husband Lynceus out of love. The trilogy’s final play seems to have dealt with her trial and eventual vindication. We should not read Suppliants in isolation from this trajectory, because Aeschylus almost certainly wrote it with the sequel already in view, and the audience, familiar with the myth, would have watched the first play’s welcome with the second play’s violence already shadowing it.

The Ground of Obligation

This structure allows Aeschylus to dramatise moral obligation with unusual clarity, and to root it in something firmer than sentiment. The primary ground of duty is religious and customary. Zeus protects those who supplicate at the altars; to drive them away is an offense against the god and against dik? (justice) itself. The Danaids repeatedly appeal to this higher law, reminding Pelasgus and the audience that hospitality to the stranger is not civic generosity extended at will but a binding claim with cosmic sanction. Pelasgus acknowledges its force even as he weighs its costs; he never denies the obligation exists, only agonises over how to discharge it without destroying the city he is bound to protect. In the Greek world, xenia (guest-friendship) and the protection of hiketai (suppliants) formed part of a shared ethical vocabulary that transcended the boundaries of any single polis. The gods themselves were understood to wander the earth in disguise, testing human generosity – a motif recurring from Homer’s Odyssey, where inhospitality to the stranger is treated as one of the gravest civic failures, through later Greek and Roman folk tradition. Refusal of the stranger therefore carried not only political but cosmic risk. Crucially, the play does not treat this obligation as optional charity, a matter of the host’s private virtue. It presents protection of the suppliant as a binding claim that a community cannot ignore without diminishing itself – without ceasing to be the kind of community that can claim justice for itself in turn.

Solidarity Across Difference

Beyond the divine sanction, the tragedy gestures toward a broader human solidarity that anticipates later philosophical universalism. The Danaids are women, foreigners, and powerless relative to the armed men pursuing them. Their plight invites recognition of shared vulnerability that does not depend on shared citizenship. Although they claim Argive ancestry through Io, the play pointedly does not reduce their case to a simple matter of repatriating kin. Their Egyptian origin, appearance, and customs mark them as other; Pelasgus initially questions their identity, their dress, their manner of supplication, wondering aloud whether they are Egyptian, Libyan, or some other foreign people entirely – a moment of genuine uncertainty Aeschylus does not resolve quickly. The decision to protect the Danaids therefore involves extending protection across difference, not merely welcoming home a lost branch of the family. In this respect the drama anticipates later articulations of cosmopolitan duty: the idea that human beings owe something to one another simply by virtue of shared humanity, independent of citizenship, blood, or custom. Terence’s later line from Roman comedy – that nothing human is alien to the speaker – finds an earlier, more politically charged expression here, in the collective choice of a city to treat foreign women as entitled to safety on grounds that reach beyond kinship. The Stoics would later formalise this intuition into a doctrine of cosmopolis, a single moral community of rational beings; Cicero would adapt it into a Roman theory of natural law binding on all peoples regardless of civic status. Aeschylus, writing more than a century before the Stoa was founded, dramatises the intuition before it acquires its philosophical vocabulary – which is, arguably, exactly what tragedy is for: staging the moral experience that philosophy will later try to systematise.

The Reality of Danger

Yet Aeschylus refuses to present acceptance as costless or risk-free, and it is this refusal that gives the play its enduring seriousness rather than turning it into propaganda for open borders avant la lettre. The dangers are stated repeatedly and with real dramatic force, not as a rhetorical concession quickly brushed aside. Pelasgus fears, explicitly and at length, that welcoming the Danaids will bring war upon Argos. The Egyptian cousins are not abstract villains conjured only to be defeated; they arrive, in the person of their herald, as an armed and determined force convinced of the legitimacy of their claim. Protecting the women means accepting the possibility of bloodshed and the deaths of Argive citizens who bear no personal stake in the Danaids’ quarrel. There is also the danger of internal division. The king worries aloud that the people will later blame him for endangering the city on behalf of people who are, after all, strangers – a fear that speaks directly to the perennial political problem of asking citizens to bear costs on behalf of non-citizens. The assembly’s eventual unanimity does not erase the underlying tension between moral aspiration and self-preservation; it merely transfers responsibility for that tension from one man to the collective body of the polis, where, arguably, it belongs.

A third and more uncomfortable danger concerns the character and long-term trajectory of the newcomers themselves. The Danaids are not idealised innocents, and Aeschylus does not ask us to pretend otherwise. Even within the surviving play, their desperate threat to hang themselves from the altars if denied protection reveals a capacity for extremity that should give any audience pause – a will capable of drastic, even violent, self-assertion. Later tradition, and apparently the lost plays of the trilogy, shows forty-nine of the fifty sisters murdering their bridegrooms on their wedding night, a mass act of premeditated violence that complicates any simple narrative of grateful refugees quietly integrating into their host society. Acceptance, the trilogy as a whole suggests, carries the risk of importing conflict that does not end with the initial act of welcome, and of discovering that the protected may not share, or may only partially share, the host community’s deeper values and constraints. A dramatist less serious than Aeschylus could have ended the story with the Argive vote and let the audience leave the theatre reassured. Aeschylus, we can reasonably infer, did not.

Pelasgus’s Method

These dangers are not dismissed, and the play’s power lies precisely in holding the moral claim and the practical risks in unresolved tension rather than resolving them prematurely in either direction. Pelasgus never claims that Argos has unlimited capacity or that acceptance will be painless; his agonised deliberation on stage is itself an argument against both naive welcome and reflexive refusal. He proceeds by democratic deliberation, forcing the community as a whole to own the decision rather than allowing a single ruler to absorb the responsibility, or to escape accountability by hiding behind an unaccountable decree – a significant political choice, given that Aeschylus was writing in Athens in the decades after the Cleisthenic reforms, when the practice of collective deliberation was being actively worked out. The partial claim of kinship through Io softens the pure otherness of the Danaids, offering a bridge that makes acceptance more psychologically palatable to an anxious citizenry, reaching for whatever thread of commonality is available rather than resting obligation on abstraction alone. Yet the core decision remains one of extending protection to people who are, in the first instance, foreigners fleeing a specific and gendered form of coercion. The tragedy thus models a form of political seriousness that modern debate too rarely achieves: the obligation is real, the dangers are real, and neither can be wished away by rhetoric.

Modern Parallels

Modern refugee policy confronts analogous tensions, even if the scale, legal architecture, and technologies of displacement differ enormously from anything available to a fifth-century Argive assembly. Contemporary international law, particularly the 1951 Refugee Convention and its associated principle of non-refoulement, codifies an obligation not to return people to places where they face persecution or serious harm. This principle rests on a recognition of human vulnerability and the moral claim of those fleeing violence, political oppression, or targeted threats – claims that echo the Danaids’ appeal at the Argive altars almost exactly. Historical experience broadly reinforces the underlying intuition. Societies that have absorbed refugees have, over the long run, often gained real cultural and economic benefit from doing so; societies that have systematically refused protection to people in genuine danger have frequently incurred lasting moral injury and, in the most extreme cases, direct complicity in the harms that followed from turning people away. The refusal of Jewish refugees by numerous states in the 1930s, my own uncle’s history among them, is the paradigm case that any honest contemporary argument about asylum must reckon with.

But the obligation, as Aeschylus already understood, is not absolute or unlimited, and treating it as such does not honour the play’s argument but flattens it. States retain a legitimate interest in controlling their borders, in distinguishing genuine refugees from those seeking migration for other reasons, and in setting reasonable conditions for entry and integration. Capacity is finite in any real polity, ancient or modern. Rapid, large-scale inflows can strain housing, welfare systems, social trust, and public order, particularly where cultural distances are wide or integration policy is inadequate. Security risks – including the possibility that some arrivals may bring, or come to develop, hostility toward elements of the host society – cannot be dismissed merely as prejudice dressed up in policy language; Aeschylus himself does not dismiss them, dramatising them through the herald’s violence and the Danaids’ own capacity for lethal extremity. The herald’s attempt to seize the Danaids by force has modern parallels in the challenges of managing failed asylum claims and returns, and of responding honestly when protected populations become, in some instances, sources of further conflict rather than simple beneficiaries of hospitality.

What the Play Offers

The play’s value for contemporary argument lies precisely in its refusal of simplification. An argument for moral obligation that ignores danger becomes utopian and, over time, politically brittle – it cannot survive contact with a single bad outcome, because it has never prepared its adherents for the possibility of one. An argument that elevates danger into a blanket rationale for exclusion becomes callous and, over time, corrosive of the host society’s own ethical self-understanding – it purchases safety at the price of the very civic identity it claims to be protecting. Aeschylus stages the intermediate position, and it is a harder position to hold than either extreme, which is presumably why it requires an entire tragedy to dramatise rather than a slogan to state. The Argives accept the Danaids because the alternative – driving desperate people from the altars of the gods – would violate a fundamental norm on which their own claim to civic legitimacy rests. They do so with open eyes, knowing that war may follow and very possibly will. The decision is collective rather than the fiat of a single leader, which distributes both the risk and the responsibility across the whole citizen body rather than concentrating either in one man’s conscience. It is conditioned by claims of shared humanity and limited, partial kinship, not by a demand for total cultural erasure on the part of the newcomers or by a fantasy of frictionless, cost-free open borders on the part of the host. Subsequent complications in the mythic cycle – the murdered bridegrooms, Hypermnestra’s trial – remind us with real dramatic weight that acceptance does not guarantee harmony, gratitude, or a clean resolution; it is the beginning of a relationship, not its conclusion.

Applying the Framework

Applying this framework honestly to the present day requires distinguishing categories that the play itself, in its way, already distinguishes. Not every person crossing a border is a refugee in the strict sense of fleeing persecution or mortal danger. Economic migration, while frequently driven by real hardship, raises different ethical and practical questions from the protection of those facing targeted violence or the collapse of basic security. The Danaids’ case, fleeing a coercive forced marriage backed by armed pursuit, sits closer to the latter category. Modern states can, and in my view should, maintain robust and fair procedures for assessing claims, precisely because false or exaggerated claims undermine political support for genuine ones – a dynamic Pelasgus would have recognised, given how much of his anxiety concerns the Argive citizenry’s willingness to trust his judgment. Integration, meanwhile, is never automatic in myth or in life. Successful inclusion requires both the willingness of newcomers to adapt to the host society’s core civic norms, and the willingness of the host society to extend meaningful opportunity rather than a permanently conditional welcome. Where either side fails, the dangers Aeschylus identified twenty-five centuries ago – resentment, division, secondary conflict – reappear in recognisably contemporary form.

Objections

Critics of expansive asylum policy sometimes argue that ancient examples are simply irrelevant to modern conditions, because contemporary welfare states, mass communication, and demographic scale create pressures entirely unknown to a small classical polis. The objection carries genuine force and should not be dismissed lightly, in keeping with the play’s own insistence on steelmanning the difficult case rather than caricaturing it. Argos, whatever its mythic population, was by any modern measure a small community with a comparatively simple administrative apparatus; today’s nation-states manage vastly larger numbers of people and more complex bureaucracies than an assembled citizen body voting in person at a single meeting. Scale genuinely changes the calculus, and it would be intellectually dishonest to pretend that a decision Argos made about fifty women translates in any straightforward way to a modern state’s decision about hundreds of thousands arriving over years.

Yet the underlying ethical structure remains recognisable even once these differences are granted their full weight. The claim of the person in genuine fear of persecution still carries real moral weight, whatever the surrounding administrative complexity. The risk to the receiving community’s security, cohesion, and finite resources remains a legitimate consideration, not a euphemism that can simply be unmasked as prejudice and set aside. Democratic deliberation – however imperfect, however captured at times by demagoguery or bad information – remains preferable in principle to unilateral decree from above or to the quiet abandonment of the vulnerable at the border, because it distributes both the moral credit and the moral cost across the whole community that must live with the consequences. Aeschylus does not resolve the tension by declaring that obligation always overrides danger, nor the reverse. He presents a community that accepts the refugees, accepts the associated risks with clear eyes, and thereby defines itself, through that act, as one that takes both the stranger and its own citizens seriously at once.

Conclusion

The enduring force of Suppliants is that it treats the arrival of the refugee as a test of character for the host, not merely a logistical or security problem to be managed. Refusal may preserve short-term safety at the cost of moral coherence – a bargain that looks attractive in the moment and corrosive in retrospect. Acceptance may preserve moral coherence at the cost of real hardship, real risk, and, as the trilogy’s later plays suggest, potentially real violence still to come. Neither path is free, and any account of asylum that pretends otherwise, in either direction, has stopped being honest. The tragedy’s achievement is to make both the obligation and the danger visible at the same time, without allowing either to cancel the other out or to provide a comfortable alibi for avoiding the harder judgment. In that respect it remains a more rigorous guide for contemporary argument than either pure humanitarian sentiment, which forgets that communities have finite capacity and legitimate fears, or pure realist exclusion, which forgets that communities also have obligations that precede and exceed their own self-interest.

Societies confronting large-scale displacement will continue to face versions of Pelasgus’ choice, dressed in modern legal and administrative language but structurally unchanged. The play does not dictate the precise policy outcome for any given crisis, and it would be a misreading to extract from it a simple prescription. It does insist, with the full force of tragic form, that the choice cannot be made honestly without acknowledging both the weight of the moral claim and the gravity of the risks. To accept refugees under appropriate conditions is not an act of naivety; it is an act that recognises shared human vulnerability while remaining clear-eyed about the costs that recognition may carry. To refuse them without serious, individualised examination of their claims is not prudence; it is a narrowing of the moral imagination that the Argives, for all their fears and for all the violence still to come in the trilogy, ultimately declined to accept for themselves. My uncle, who survived what the century’s worst refusal of hospitality made possible, understood this without needing the philosophical vocabulary to state it abstractly; he simply handed a boy a play and let the play do the teaching. Aeschylus leaves us with that difficult, unresolved, and still entirely necessary balance – and, more than two thousand years on, we are still, rightly, being asked to hold it.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Waxing and waning over the years, the friendships of our youth can re-emerge at the most unexpected of times. Attending a funeral this week, I reconnected with several friends of days now long in my past, recalling a community that wrapped its arms wide around immigrants and Australian-born alike. It had me thinking about “Australian values”, about the woman whose funeral I was attending and the legacy that family has lived, continues to build and their impact on this country as “new Australians”.

Rosa was born in Albania, her family driven out by Tito’s Yugoslav regime during World War II due to her father, Luke’s peaceful activism. The family initially escaped to Austria and then Italy where they remained for several years, before coming to Australia in 1950. Rosa’s family embedded themselves in the community and along with the many other survivors of the war, brought with them some of their culture – the smallgoods, preserves, music, dance, but more than anything else a fierce gratitude for finding a safe haven, a place to call home. Luke gave back to this country. He raised his children and spurned a line of descendants who have become teachers, health care workers, small businessmen and women, to mention a few. Luke embraced this country, inviting the Australians into his home as much as the immigrants to celebrate birthdays and the turning of the year, playing his balalaika and feeding everyone. When Luke was murdered whilst working in 1980 in the Supreme Court of Victoria along with two others, his family prayed for the murderer rather seeking vengeance, a behaviour he publicly counselled against. A man who fled conflict only to be taken by another’s narrow mind, was the impetus for extraordinary change that keeps many people safe today. I remember that day, the stunned silence of my parents. Another mourner at Rosa’s wake recounted seeing the news report on the television and his mother recognising the shoes. Funerals are rarely any larger and in death, legacies rarely more deservedly earned.

Rosa’s family is like so many others. Ben came to work on the Snowy Mountains project. With the physique of tank, Ben was a Lithuanian man who built his own home in Melbourne and later a second in rural Victoria. He overcame a brutal upbringing of poverty and abuse, having been sold at the age of five. When the war was over, he wanted to get as far away from Europe as possible and Australia was further than the United States. Ben made his rural property available to the Scouts for Jamboree, provided a home to other immigrants and refugees, taught music to anyone who wanted to learn, including my brother, and upon his death, donated his rural property to the state. He too, was grateful for the peace and opportunity he found after the horrors he had left behind.

The Department of Home Affairs defines our values as:

• ?respect for the freedom and dignity of the individual
• freedom of religion (including the freedom not to follow a particular religion), freedom of speech, and freedom of association
• commitment to the rule of law, which means that all people are subject to the law and should obey it
• parliamentary democracy whereby our laws are determined by parliaments elected by the people, those laws being paramount and overriding any other inconsistent religious or secular “laws”
• equality of opportunity for all people, regardless of their gender, sexual orientation, age, disability, race, or national or ethnic origin
• a ‘fair go’ for all that embraces:
  • ?mutual respect
  • tolerance
  • compassion for those in need
  • equality of opportunity for all
• recognising the English language as the national language, and as an important unifying element of Australian society.

Australian values promoted by Crimestoppers notes that the “fair go”, highlighting that achievements should be earned on merit rather than the product of cronyism or nepotism, aims to avoid classism.

I draw attention in particular to parliamentary democracy. Pauline Hanson, intent upon winning leadership at any cost, breaches this value repeatedly when she mocks Muslims, most especially when she does so wearing a burqa in the senate. Thumbing her own nose at the values she so stridently seeks to enforce, she demonstrates her own hypocrisy.

Luke and Ben and their family built this country, as did so many others like them. From the Snowy Scheme to the postal workers, the cleaners, the brickies and the restaurant owners, much of what we cherish now would simply not exist had they never come to this country.

What did Pauline or her family build? A fish and chip shop for a few years. What does she leave in her wake? Division, backbiting. As a parliamentarian of years standing, it would be reasonable to expect that Hanson would have realised something more than her frequently espoused malcontent. What private members bills has she sponsored? What productive legislative advice has she put forward? In short, what positive actions has she instigated to the benefit of the broader community? She sides with the Coalition to attack the incumbent Labor Government about cost of living relief, but undermines the measures proposed to ease pressures. She votes against measures that support housing affordability, including public housing. Conversely, she believes that the tax free threshold for retirees should be raised so that they can earn more without penalty – a fine means to avoid raising the aged pension. She supports nuclear energy, which some argue is a solution to climate change, but consistently votes against other measures such as renewable energy.

Hanson promotes free speech, but ostracises some media outlets who ask her uncomfortable questions. She throws a major hissy-fit at reporters with the temerity to ask about how she spends donor funds or why she isn’t using the plane Gina gifted her party to travel around the country. Most concerningly, she claims to be a survivor of domestic abuse, but repeatedly argues that women bring it on themselves and should simply leave, demonstrating a complete lack of comprehension of the complexities of domestic violence that should come with lived experience.

Pauline Hanson finds it far easier to divide that to the unite. She is the crowbar separating the people from Australian values, not the galvanising support of the structure. Born with a chip on her shoulder for a perceived slight, she is a wrecker who will marginalise many with her “gutful” of hypocrisy. If Hanson was to sit the citizenship test, she would fail the values component. That should tell you all you need to know about her litany of whinges.

– – –

© Watershedd, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

ACT Policing serves as the community policing arm of the Australian Federal Police (AFP), responsible for law enforcement in the Australian Capital Territory under a service agreement with the ACT Government. Operating in a relatively small, high-visibility jurisdiction of around 450,000 people, it handles tens of thousands of incidents each year while balancing community expectations of professionalism, fairness, and accountability. In recent years a run of independent reports, annual statistics, court findings, and journalistic investigations has exposed persistent structural problems: rising allegations of misconduct and corruption, concerning patterns in the use of force, deficiencies in complaint handling, specific incidents of alleged excessive force against First Nations people, shortcomings in the investigation of sexual offences, and operational pressures including understaffing and ageing infrastructure. ACT Policing leadership has consistently maintained that the overwhelming majority of interactions meet high standards and that problems are confined to a small number of officers rather than reflecting systemic failure. Independent oversight bodies, the courts, and the ABC’s own investigative journalism nonetheless paint a picture of recurring accountability gaps that continue to erode public confidence, particularly among the Territory’s First Nations community.

This essay draws on publicly available material from the ACT Ombudsman, the Commonwealth Ombudsman, ACT Policing’s own annual reporting, ACT Supreme Court proceedings, and contemporary journalism spanning 2024 through mid-2026. It aims to set the evidence out factually, including the official responses of ACT Policing and the AFP, without assuming that individual failures define the whole organisation. The picture is a genuinely mixed one: officers operate in a demanding environment shaped by high volumes of mental-health and intoxication-related callouts, and evolving community expectations of transparency mean scrutiny is more intense now than at any point in the force’s recent history.

Rising Allegations of Misconduct and Corruption

One of the clearest indicators of pressure on ACT Policing comes from its own internal reporting. According to the force’s 2023–24 annual reporting, discussed publicly in late 2024, the AFP recorded 220 allegations against ACT Policing members that year – nearly double the 122 recorded in 2022–23. Allegations of serious misconduct more than tripled, from 32 to 103, while corruption-related allegations more than doubled, from 8 to 17, with ten of the latter arising from a single complaint. Serious misconduct in this framework typically covers significant breaches of use-of-force policy or those causing injury; corruption covers matters such as abuse of office and perverting the course of justice.

All such matters are investigated by the AFP’s Professional Standards unit, with the Commonwealth Ombudsman providing additional oversight of serious misconduct and the Australian Commission for Law Enforcement Integrity taking referrals on corruption. Of the matters formally established in the relevant period, only a small number – roughly ten serious misconduct findings and two corruption findings – were substantiated, leading in at least one case to dismissal. The majority were either not established or finalised under a discretion not to proceed further.

Chief Police Officer Scott Lee attributed part of the increase to improved data capture following an internal audit: previously, allegations dismissed at initial triage were not consistently recorded, and the revised process now captures them, inflating the headline totals. Lee has repeatedly said he has no concerns about systemic corruption within the force, stressing that the corruption allegations involved a cohort of only five or six officers and that appropriate processes exist to deal with matters as they arise.

Legal practitioners and oversight bodies take a more sceptical view. Even allowing for improved recording, they argue, the volume of allegations – particularly those touching on force and potential corruption – coincides with a wave of external reviews that increasingly question whether internal processes are adequate to identify and manage risk before it escalates into the kind of conduct examined below.

Use of Force and Unprofessional Conduct

The most detailed independent examination of ACT Policing’s operational practice to date is the ACT Ombudsman’s own-motion investigation into use of force, commenced in April 2024 and released on 10 June 2025 under the title Use of force by ACT Policing: more to do to lessen harm. Covering the five years from January 2019 to December 2023, the 132-page report found that ACT Policing responded to 445,736 incidents in that period, of which 5,902 – just 1.3 per cent – involved a reportable use of force. Those incidents generated 6,255 individual use-of-force reports, because a single incident can involve more than one type of force. Handcuffs featured in 63 per cent of these incidents and ground restraints in 46 per cent; officers drew, aimed, or discharged a taser more than 1,600 times over the period, used a firearm in almost 320 incidents, and deployed a baton on close to 260 occasions. Roughly 47 per cent of the force incidents involved a person under the influence of alcohol or drugs, and around 26 per cent involved a person experiencing mental-health distress. Across the five years, 1,159 individual officers were recorded in at least one reportable use-of-force incident.

To test how these reports corresponded to reality, Ombudsman Iain Anderson’s investigators went beyond the paperwork: they reviewed 201 pieces of body-worn camera and CCTV footage relating to 54 selected incidents, a mix of randomly chosen and complaint-related cases. The results were uneven. The report documented genuine examples of skilled, compassionate, de-escalatory policing – among them a case in which officers handled two distressed and intoxicated teenagers on a suburban street with evident care. But in roughly a third of the 54 cases examined in depth, the footage showed officers behaving unprofessionally: impatience, aggression, and foul or abusive language that the Ombudsman found had unnecessarily inflamed already difficult situations. In one previously unreported case, an officer told a 16-year-old under arrest that he had “no rights” and then refused the boy’s requests for something to wash pepper spray from his face. In another, a man who had tried to assist police in restraining someone ended up in custody with a broken hand.

Perhaps more troubling than the conduct itself was what the report found when it compared body-worn footage against the paperwork meant to record it. Written use-of-force reports were frequently found to be inaccurate – understating a subject’s aggression, omitting an officer’s own inflammatory conduct, or, in the case of the 16-year-old, misstating when he became aggressive and in which direction he had spat. Supervisors who had themselves been present at an incident sometimes signed off on reports describing it, creating an obvious conflict of interest. The Ombudsman also found “widespread inconsistencies” in how officers completed the reports, incomplete data fields, insufficient mechanisms for the organisation to learn systematically from both good and bad examples, a pattern of misconduct allegations being dismissed before proper investigation, and gaps in the consistent use of body-worn cameras themselves.

The Ombudsman made 13 recommendations. ACT Policing accepted two in full, partially accepted eight, and rejected three outright. The response from AFP and ACT Policing leadership was notably defensive. Before the report’s public release, AFP Commissioner Reece Kershaw wrote to Anderson objecting that several recommendations went “beyond the scope of the review,” and Chief Police Officer Lee separately warned that the report’s “generalisations and assertions” risked leaving readers with the false impression of systemic problems. After publication, Kershaw went further, arguing publicly that broad characterisations drawn from a very small sample of interactions – 1.32 per cent of all incidents – unreasonably eroded community trust in law enforcement. The Australian Federal Police Association echoed this, with president Alex Caruana criticising the Ombudsman for examining only 54 of 6,255 reports, objecting that the AFPA had not been consulted or given an embargoed copy before media were, and arguing that reviewing footage from behind a desk could not fairly capture the complexity of a callout at two o’clock in the morning.

Others read the same numbers differently. Police Minister Marisa Paterson told budget estimates that while the incidents highlighted were “disappointing,” use of force remained a small part of ACT Policing’s overall work, and pointed to the existence of oversight mechanisms as evidence the system was functioning as intended. ACT Greens leader Shane Rattenbury argued instead that the government needed to confront what he called a broken system of police misconduct investigation, with far greater transparency required – not, he stressed, because most officers were the problem, but because a system that fails to hold the minority who abuse their power accountable will continue to erode public confidence in the whole. A Canberra Times editorial put the underlying tension bluntly: the question is not whether an Ombudsman’s report damages trust in police, but whether the conduct the report uncovers is what does the damage in the first place.

High-Profile Incidents and Allegations of Excessive Force

Individual cases have given the statistical picture a human face, and none more so than the case of a First Nations man – referred to under pseudonym in different reports as either “Daniel” or “Shane” for legal reasons, whose treatment at the Canberra Watch House in March 2024 is similar to that shown in a four corners investigation about NSW Police – an internal AFP finding of corrupt conduct, and an ongoing civil claim. According to court documents, the man was in a Canberra hotel room when police arrived; he was handcuffed, sprayed in the face with capsicum spray while restrained in a police van, and later taken into a cell at the Watch House, where several officers pinned him against a wall and stripped him naked. He alleges he was kneed and punched while restrained on the floor, in breach of legislation requiring that only officers of the same sex be present during a strip search – a female officer helped hold him down. He was charged with resisting and assaulting police; those charges were dismissed by the ACT Magistrates Court in November 2024 after the Director of Public Prosecutions failed to produce evidence to support them.

An internal AFP Professional Standards investigation subsequently found that the sergeant most directly involved, Scott Budd, had used excessive force and separately engaged in corrupt conduct – the latter finding relating to an email in which Budd pressured a colleague not to charge the man, apparently in an effort to manage the fallout from the incident rather than to serve justice. Budd is no longer employed by ACT Policing. Despite this internal finding, no criminal investigation into the assault has been pursued. In court proceedings seeking access to the man’s counselling records, his barrister described the case as “a very serious instance of institutional failure” and told the court that CCTV footage of the incident was “several orders of magnitude more disturbing” than footage from the Don Dale Youth Detention Centre in Darwin, which prompted a royal commission in 2016. Counsel for the Commonwealth and the named officers rejected the characterisation as “grandstanding.” The Aboriginal Legal Service (NSW/ACT), which represented the man in the original criminal matter, has described the episode as symptomatic of a “deeper disease” in ACT Policing rather than an isolated failure, and says it will monitor the ongoing civil proceedings closely.

The case sits alongside a broader pattern of concern about the treatment of First Nations people in ACT custody. The ACT Legislative Assembly’s Aboriginal and Torres Strait Islander Elected Body reported in 2026 that Indigenous over-representation in detention had continued to deepen, reaching 22.3 times the non-Indigenous rate for adults and 14.3 times for youth, and characterised this as evidence of “entrenched systemic factors rather than isolated failures.” The ACT Government has nonetheless declined to hold an independent inquiry into the treatment of First Nations detainees at the Watch House, pointing instead to existing oversight arrangements – AFP Professional Standards, the Commonwealth and ACT Ombudsman, the Commonwealth’s National Preventive Mechanism, and the National Anti-Corruption Commission – along with an Operational Practices Committee established by the Chief Police Officer in August 2024 to capture and share lessons internally. Separately, in Williams v Director-General of the Justice and Community Safety Directorate, the ACT Supreme Court found in 2025 that force used to strip-search a Ngunnawal woman in custody, along with the manner of the search itself, was incompatible with her rights to humane treatment, privacy, and protection from degrading treatment under the ACT’s Human Rights Act – a judicial finding, rather than an internal or Ombudsman one, that use of force and search practices in the Territory’s custodial system have crossed a legal line.

Other incidents reinforce the pattern without reaching the same severity. In 2025, officers stopped a bus and detained an Aboriginal teenager at gunpoint after mistaking him for a knife-wielding suspect; his family alleged racial profiling and lasting trauma, while police rejected suggestions of racism, apologised for the case of mistaken identity, and referred the matter to Professional Standards while defending the underlying decision to treat a reported knife threat as dangerous. Separately, the ACT courts have criticised officers for “bullying” a child with autism and misleading his family in order to seize his devices during an investigation, resulting in the evidence obtained being ruled inadmissible. None of these cases is representative of the tens of thousands of routine, unremarkable interactions ACT Policing has each year. But taken together, they illustrate a recurring set of concerns: contested and sometimes clearly excessive force, questions about cultural competence in encounters with First Nations Canberrans, and a persistent preference for internal rather than independent criminal investigation of the most serious allegations.

Complaint Handling, Transparency and Accountability Mechanisms

Oversight of how complaints themselves are handled has become a parallel front of criticism. In July 2025, the Commonwealth Ombudsman released its annual report on the AFP’s administration of Part V of the Australian Federal Police Act 1979 – the legislation governing complaint handling for the AFP, including ACT Policing – covering the 2023–24 financial year. Ombudsman Iain Anderson found that the AFP was not delivering a complaint-handling system that met the requirements of the legislation, in particular through its disproportionate use of a statutory discretion to take no further action on complaints that, in the Ombudsman’s assessment, ought to have been investigated. For minor misconduct complaints, the AFP’s Workplace Issues and Complaints Resolution team finalised 85 per cent of matters using this discretion. The report also found the AFP had, in some instances, applied the same discretion inappropriately to more serious matters, had made decisions not to investigate based on incomplete information without adequately seeking evidence from complainants or subject officers, and – in a finding the Ombudsman noted it had now made in every review conducted since 2009 – continued to communicate inadequately with both complainants and the officers subject to complaints.

The Ombudsman issued 19 recommendations; the AFP accepted 12 in full and partially accepted the remaining seven, and separately committed to an external review of its complaints management system. Commissioner Kershaw described this commitment as evidence the organisation was taking the findings seriously; by mid-2025 that external review was reportedly under way, with Deputy Commissioner Lee telling ACT budget estimates that the force was considering whether ACT Policing needed to “adjust our arrangements” for disclosing information about internal misconduct probes.

Legal practitioners working with complainants have been less sanguine, describing the Professional Standards process as fundamentally opaque – “Caesar judging Caesar,” in the words of one – with substantive outcomes rarely made public in any detail. This lack of transparency compounds the problem the Ombudsman identified: even where a complaint is properly investigated and a finding made, the public and often the complainant have limited means of verifying that the outcome was fair or proportionate. The combination of rising raw allegation numbers, a pattern of premature discretion not to investigate, and non-public findings creates a structural gap between the Territory’s stated commitment to police accountability and the lived experience of people who make complaints against officers.

Additional Structural and Operational Challenges

Beyond use of force and complaint handling, other long-standing problems persist. An independent Sexual Assault (Police) Review examining reports made between mid-2020 and the end of 2021 identified a “failure to properly and appropriately investigate” as the predominant reason for the Territory’s low charge rate in sexual offence matters. The review pointed to an over-reliance on early “meet and greet” or evidence-in-chief interviews that sometimes closed cases prematurely, limited follow-up engagement with identifiable suspects, adherence to outdated assumptions about how genuine victims of sexual assault are expected to behave, and insufficient victim-centred practice more generally.

Resourcing remains a persistent pressure point underlying many of these problems. Former Chief Police Officer Neil Gaughan has noted publicly that more than 48 per cent of uniformed officers at some key stations were probationary constables, a staffing profile he linked to suboptimal outcomes, avoidable court dismissals, and costs awarded against police. Ageing and sometimes non-compliant infrastructure – including facilities affected by contamination or requiring temporary closure – has also been documented. Historical non-compliance with legislative safeguards around access to telecommunications location data, involving more than 1,700 recorded instances of which only a small number were found fully compliant, resulted in no officer being disciplined. Internal workplace inspections have separately flagged safety risks, inadequate privacy protections in custody areas, and inappropriate imagery or humour circulating within stations – cultural indicators that, while less dramatic than a Watch House assault, tend to correlate with the kind of unprofessional conduct the Ombudsman documented in its use-of-force review.

None of this absolves individual misconduct, but it does provide necessary context. ACT Policing officers face genuine occupational hazards: physical assaults and threats, an intense volume of mental-health and intoxication-related callouts that other jurisdictions increasingly route to health services rather than police, and a level of public and media scrutiny disproportionate to the Territory’s comparatively low crime rate – the ACT recorded 612 offenders per 100,000 residents against 1,556 in New South Wales, according to the latest official figures. Successive ACT governments have responded with additional recruitment funding, and ACT Policing has said it is working with relevant health agencies to trial a new model for responding to mental-health-related calls from 2025.

Balancing the Record and Looking Forward

ACT Policing operates in a demanding environment in which the great majority of its more than 50,000 annual incidents are resolved without force, complaint, or controversy. Leadership has accepted a substantial number of the oversight recommendations directed at it, invested in recruitment and training, and consistently maintained – not without some statistical justification – that the problems documented above are neither systemic nor representative of the Territory’s police force as a whole. The willingness of successive Chief Police Officers to engage publicly, if defensively, with adverse findings is itself a form of accountability that should not be dismissed.

Yet the accumulation of Ombudsman findings across two separate 2025 reports, a rising trend in serious internal allegations, an ACT Supreme Court finding of rights violations in a strip-search case, an unresolved civil claim arising from an internal finding of corrupt conduct and excessive force at the Watch House, and a consistent institutional preference for internal rather than independent investigation of the most serious matters together point to genuine and ongoing problems of culture, supervision, investigation quality, and transparency. Public trust in a police service depends not only on the volume of good, unremarkable work it does each day, but on whether the minority of serious failures are handled with the rigour, independence, and openness the community has a right to expect. On the evidence reviewed here, that standard is not yet consistently being met.

In a self-governing territory that prides itself on progressive values and a codified human rights framework, the standards applied to those entrusted with significant coercive power over the public must be correspondingly high – and higher still where that power is exercised over a community, First Nations Canberrans, already vastly over-represented in custody. Greater independence in the investigation of serious force complaints, more consistent public reporting of substantiated outcomes consistent with individual privacy, deeper cultural competence training, and a genuine willingness to treat critical oversight findings as an opportunity for reform rather than a reputational threat would go a considerable way toward closing the gap between ACT Policing’s stated standards and the record examined in this essay. Sustained attention to these issues – from the Ombudsman, the courts, the media, and the community itself – remains essential if confidence in policing across the Territory is to be fully restored.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010

Introduction

On 13 December 1838, readers of The Australian newspaper in Sydney encountered a poem unlike anything the colonial press had yet published. Written by a recent Irish immigrant, Eliza Hamilton Dunlop, and printed as the fourth instalment in her serial “Songs of an Exile,” “The Aboriginal Mother” gave voice – however imperfectly, and however mediated by a white settler pen – to an Aboriginal woman mourning a husband and a beheaded son, fleeing with a surviving infant through the bush at night. It appeared five days before seven white men were hanged for the Myall Creek massacre, the killing of at least twenty-eight Wirrayaraay people at a cattle station near present-day Inverell in northern New South Wales six months earlier. The poem is not, in the first instance, a literary artefact to be admired for its craft. It is a documentary and political act, composed in the narrow window between a jury’s verdict and a public execution, and it tells – in the actual words of the mother it constructs – one of the most concentrated stories colonial Australia has to offer about the mechanics of frontier violence, the fragility of settler conscience, and the price of speaking on another’s behalf.

This essay reads the poem closely, quoting its key passages at length rather than only describing them; sets those passages against the specific, documented language used against Dunlop by her critics; and situates both within the existing scholarship on the poem, before arguing for a tighter account of what story it actually tells. All quotations below follow the poem’s first printing in The Australian, 13 December 1838, as reproduced in the standard modern transcriptions; a revised song text prepared for Isaac Nathan’s 1841 setting differs from the original in minor but occasionally telling ways, and is treated separately in the discussion of reception below rather than conflated with the 1838 text.

The Massacre Behind The Poem

The Myall Creek massacre occurred on 10 June 1838. A group of twelve stockmen – assigned convicts and ex-convicts working the pastoral frontier – rode to a hut on Myall Creek station where a group of Wirrayaraay people, mostly women, children and old men, had gathered under an informal arrangement of protection with the station’s overseer. The stockmen roped the group together, marched them a short distance from the huts, and killed them with swords and cutlasses, then attempted to burn the bodies. Several children were decapitated. Colonial authorities in Sydney, under the recently arrived Governor George Gipps, pursued prosecution – an unusual step on a frontier where killing Aboriginal people rarely carried legal consequence. Eleven men were tried; an initial trial produced acquittals, but a second trial, on a different charge, convicted seven of murder. They were hanged on 18 December 1838 – the only occasion in the nineteenth century on which white colonists were executed for the mass killing of Aboriginal people.

The verdict provoked a ferocious backlash in sections of the settler press. As the historical record shows, the Sydney Herald did not merely disagree with the executions in measured editorial language; in October 1838 it declared that Aboriginal Australians were “not worth the money the colonists will have to pay for printing the silly documents” generated by their legal protection, and the following month, referring to Aboriginal people as “ferocious savages,” instructed settlers that if such people threatened property or life, colonists should “do to them as you would do to any white robbers or murderers – SHOOT THEM DEAD.” Not every paper took this line – John Dunmore Lang’s Colonist argued on 12 December 1838, the day before Dunlop’s poem appeared, that the killings were “chargeable upon us as a nation” – but the Herald’s rhetoric establishes precisely the climate of opinion into which Dunlop published: a colony in which prominent voices were arguing, in print, that Aboriginal life did not warrant legal protection, using language that denied the victims full human standing altogether. It is against this backdrop that a lullaby given to a grieving Aboriginal mother becomes a political act rather than a literary indulgence. Dunlop had arrived in Sydney only months earlier, in February 1838; her husband David Dunlop was a police magistrate and, from 1839, one of Gipps’s newly appointed Protectors of Aborigines. Evidence given at the Myall Creek trials referenced a woman and child who had escaped the massacre; this detail, more than anything else, appears to have furnished the poem’s narrative frame, carried in the epigraph later attached to the poem: “Only one female and her child got away from us” – evidence before the Supreme Court.

Form: The Lullaby As Elegy

The poem’s governing device is formal and devastating in its simplicity: it is a lullaby that cannot lull. It opens:

“Oh! Hush thee – hush my baby,
I may not tend thee yet,
Our forest-home is distant far,
And midnight’s star is set.
Now, hush thee – or the pale faced men
Will hear thy piercing wail,
And what would then thy mother’s tears
Or feeble strength avail!”

A lullaby promises safety, rhythm, the eventual quiet of sleep. Here the hushing is not comfort but concealment: the mother silences her child not to soothe him but to keep him alive, because his cry might bring “the pale faced men” down on them both. The genre convention of tenderness is turned into a survival tactic, and the poem’s closing stanzas return to and complete this inversion – “Oh hush thee, dear – for weary / And faint I bear thee on” – so that the lullaby which opened the poem as an act of protection closes it as an act of exhaustion. The frame does not resolve; it collapses.

The poem is written in ballad-adjacent common metre, quatrains rhyming abcb – a form associated with hymn and popular narrative verse, already familiar to a colonial newspaper readership. It was the fourth in a serial Dunlop titled “Songs of an Exile,” and the frame of exile is not incidental. Dunlop was born Eliza Hamilton in County Armagh in 1796, into an Anglo-Irish family with Ulster Protestant roots on both the Hamilton and Dunlop sides, and had already published verse in the “sentimental” tradition associated with Felicia Hemans before she ever reached Sydney. Anna Johnston’s research into Dunlop’s Irish and Australian writing argues that the poet’s lifelong preoccupation with elegy – mourning what was left behind, whether a homeland or a murdered child – let her use a single, well-worn literary form to hold together grief for Ireland and grief for Aboriginal Australia, and that “the bloody history of revolution and its suppression in Ireland” supplied a recurring, if largely submerged, frame of reference across her Australian poems. “The Aboriginal Mother” thus arrives already carrying an Irish colonial memory of dispossession and suppressed rebellion, transposed onto a new frontier – not as a direct analogy (Dunlop never claims equivalence between Ireland and Myall Creek), but as an inherited emotional grammar for writing about a people forced from their land by an occupying power. This is itself worth registering as part of the poem’s ambivalence: the sympathy it extends to the Wirrayaraay was assembled, in part, out of the poet’s own inherited experience of colonial upheaval in Ireland, filtered through a genteel Anglo-Irish sensibility rather than a shared position of dispossession.

The sentimental mode itself – a poetic technology, proven effective by the British and American antislavery movement, for producing sympathy through the suffering of an idealised, feminised, maternal figure – is the other formal debt the poem carries. That Dunlop deployed this thoroughly European apparatus on behalf of an Aboriginal woman is itself part of the story the poem tells: even sympathy for Indigenous suffering had to be translated into forms already legible to, and built by, a white settler audience.

Close Reading: Violence Rendered In The Body

The poem does not abstract the massacre; it renders it in exact, bodily detail evidently drawn from courtroom testimony – a debt that Duncan Wu’s Oxford Review of English Studies article on Dunlop has traced directly to newspaper reports of the trials. The central image is unflinching:

“I saw my firstborn treasure
Lie headless at my feet,
The goro on his hapless breast,
In his life-stream is wet!
And thou! I snatched thee from their sword,
It harmless pass’d by thee!”

This is not poetic invention. Decapitation was among the documented horrors of Myall Creek. By placing this fact inside a mother’s voice rather than a magistrate’s deposition, Dunlop moves the massacre out of the register of legal record and into the register of grief – a move that drew explicit criticism at the time for its perceived indecorousness, precisely because it worked.

The husband and father figure, named Toon Bakra and called “my bold and stately mountain-bird,” occupies the poem’s emotional centre almost as much as the child does, and the stanza describing his death is the poem’s clearest statement about the mechanics of the massacre itself:

“For thy young life, my precious,
I fly the field of blood,
Else had I, for my chieftan’s sake,
Defied them where they stood;
But basely bound my woman’s arm,
No weapon might it wield:
I could but cling round him I loved,
To make my heart a shield.”

This detail tracks the historical record precisely: the Wirrayaraay people at Myall Creek were roped together before they were killed, disarmed and immobilised, unable to flee or resist. The poem is therefore not depicting a “battle” or a “skirmish,” the euphemisms contemporaries often reached for; it depicts an active, resisting community – a chieftain, a woman prepared to fight “for my chieftain’s sake” – that is bound and then executed. The mother’s only remaining weapon is her own body, offered as “a shield” that fails. This is Dunlop’s most precise indictment of the massacre’s actual method, expressed not through commentary but through the physical grammar of the verse itself: short, blunt monosyllables (“bound,” “no,” “cling”) standing against the poem’s more lyrical passages elsewhere.

The poem’s Aboriginal vocabulary – goro (spear), koopin, boommerring – signals Dunlop’s atypical linguistic engagement with communities around Wollombi, work she pursued with her husband and in correspondence with the missionary-linguist Lancelot Threlkeld at Lake Macquarie. These words function doubly: they lend a specificity that resists the generic, interchangeable “native” of most colonial writing, while simultaneously marking the poem as an act of translation, in which the mother’s language is never simply allowed to be itself, but arrives italicised and glossed for settler consumption.

The Turn To God: Colonial Christianity Indicted

The poem’s final movement is its most pointed political argument:

“Yes! O’er the stars that guide us,
He brings my slaughter’d boy:
To shew their God how treacherously
The stranger men destroy;
To tell how hands in friendship pledged
Piled high the fatal pire;
To tell, to tell of the gloomy ridge!
And the stockmen’s human fire.”

Having exhausted grief, the mother imagines her dead son’s spirit travelling to “bring thy people’s murder cry / Before the Christian’s God” – to testify, in heaven, to what was done on earth. The imagined testimony is specific: it will “shew their God how treacherously / The stranger men destroy,” and will name the betrayal precisely – “hands in friendship pledged” that “Piled high the fatal pire.” This detail is historically exact: the killers at Myall Creek had extended a pretence of protection to the group before rounding them up, a betrayal contemporaries found especially shocking. The irony Dunlop constructs is devastating and deliberate. She does not ask whether Aboriginal people can be redeemed by Christian civilisation – the era’s dominant humanitarian question – but instead stages a scene of ultimate judgment in which the murdered child, not the coroner or the jury, becomes the accusing witness before the God the killers themselves professed to worship. Heaven becomes the court that colonial law refused fully to be.

Reception: Two Kinds Of Attack, And A Musical Afterlife

The poem’s reception is not merely a footnote to its content; it is where the poem’s political stakes become fully visible, and it deserves to be shown rather than summarised – but the scholarship behind it needs correct attribution. The most detailed account of the Sydney Herald’s campaign against the poem is Duncan Wu’s article “‘A Vehicle of Private Malice’: Eliza Hamilton Dunlop and the Sydney Herald” (Review of English Studies, 2014), which documents a sustained attack that intensified after the poem was set to music and performed publicly in 1841. Wu’s central finding is that this animus was not simply a reaction to the poem’s content but was entangled with the Herald’s wider political war against Governor Gipps’s protective policies toward Aboriginal people, and specifically with the paper’s repeated attacks on Dunlop’s own husband, David Dunlop, in his role from 1839 as a Protector of Aborigines at Wollombi. The literary judgment and the political vendetta, in other words, were the same fight wearing two faces.

The attack itself came in more than one register. When the Sydney Herald printed the newly composed song version of the poem on 15 October 1841, ahead of its concert premiere, the paper conceded that the words were “pathetic” and displayed “much poetic feeling” – but immediately qualified the praise by objecting that the language given to the Aboriginal mother was of a generic, imported kind, more characteristic of a North American literary Indian than of anyone the paper’s “very slight acquaintance with the natives of this colony” would recognise as authentic. This is a subtly different charge from simple hostility to sympathy: it questions Dunlop’s authority to speak for a specific Aboriginal woman at all, even while admitting the poem’s emotional power. A separate, later attack held that Dunlop had given “an entirely false idea of the native character,” a claim that denied, in principle, that Aboriginal people were capable of the depth of feeling the poem attributed to them; as later scholarship has recorded, Dunlop answered with a pointed letter to the editor, published 29 November 1841. Read together, the two charges are double-edged: one accuses the poem of literary inauthenticity, the other of emotional overreach, but both work to discredit exactly the faculty the poem depends on – a settler woman’s claim to have imagined her way into an Aboriginal mother’s grief.

Dunlop did not retreat. She continued publishing sympathetic verse on Aboriginal subjects for roughly another decade, moving between newspapers and editors as some outlets tired of the controversy and others carried her work regardless. The poem also found an unlikely second life in music. It was set by Isaac Nathan, an English-born Jewish composer sometimes called the “father of Australian music,” best known before his 1841 emigration for his Hebrew Melodies collaboration with Byron; Nathan reached Sydney only months after the poem’s original publication and premiered the song version at the Royal Victoria Theatre on 27 October 1841, sung by his own daughter with full orchestral accompaniment. That a poem born from courtroom testimony about a frontier massacre ended its first decade of life as a concert piece, performed in evening dress to a paying Sydney audience, is itself a measure of how thoroughly the sentimental mode could absorb even the most damning colonial subject matter into polite entertainment. Dunlop also continued her ethnographic collaboration at Wollombi during these years, compiling vocabulary lists and transcribing song under the name “Mrs David Milson” – placing her, however incompletely and however shaped by the era’s paternalism, inside networks of exchange with Aboriginal informants rather than writing about Aboriginal people only from a distance. That combination of public advocacy, concert-hall celebrity, and private linguistic labour is unusual enough in the colonial record that scholars – Johnston chief among them, alongside Wu and the contributors to the 2021 Sydney University Press volume Eliza Hamilton Dunlop: Writing from the Colonial Frontier – have, after a century of near-total neglect following Dunlop’s death in 1880, substantially revived critical interest in her work.

What Story Does The Poem Tell Of Colonial Australia?

Read against this evidence, the poem’s contribution is best stated as two claims, not a list of overlapping ones.

First: the poem insists that frontier “conflict” was, in the specific case it documents, an execution of the disarmed, and it proves this through the physical grammar of the verse rather than through argument. The bound arm, the headless child, the sword that “harmless pass’d by thee” – these are not generalised images of suffering but a reconstruction, drawn from trial evidence, of exactly how a group already pledged friendship and already stripped of the means to resist was killed. Placed beside the Herald’s contemporaneous language – “ferocious savages,” “SHOOT THEM DEAD” – the poem functions as a direct rebuttal in the same public arena: where the Herald denied Aboriginal people the capacity for feeling in order to excuse their killing, Dunlop’s poem supplies precisely that interior life, scene by scene, in the deliberately familiar and popular form of the ballad.

Second: the poem discloses, more than it perhaps intends to, the structural limit on how far settler sympathy could travel in 1838. “The Aboriginal Mother” is not an Aboriginal woman’s testimony; it is an Irish immigrant’s reconstruction of one, assembled from newspaper accounts and courtroom evidence, metred to a British hymn form, glossed with italicised vocabulary, and eventually arranged for parlour and concert performance. Dunlop’s courage in publishing it – and in absorbing a documented, sustained newspaper campaign that attacked both the poem and, by extension, her husband’s official conduct – should not be understated. But the very avenue by which Aboriginal grief entered the colonial public record in 1838 was also evidence of the imbalance the poem protests: that grief could be heard only once translated, versified, and performed by someone the settler press was, at minimum, obliged to argue with rather than simply dismiss. The poem indicts colonial violence while remaining a product of colonial cultural power – a tension that does not cancel its value as protest, but is part of what the historical record around it, including its reception, discloses.

The poem closes on grief without resolution – “The echoes of my homeless heart / Reply – the dead, the dead!” – refusing the consolations that Christian elegy conventionally offers. There is no promise of reunion, only an “ever” murmuring “like an ocean torrent” that will not “flow … back” to ease “our lonely woe.” In this the poem anticipates, in an 1838 popular form, what Aboriginal writers, historians and communities have long insisted upon as a matter of historical method: that massacre is not a discrete, closed event but an ongoing condition, corroding even the survivors’ relationship to their own country and its “summer streams” long after the killing stops.

Conclusion

“The Aboriginal Mother” is best understood as a document produced at a genuine hinge point in colonial history – the brief moment when the New South Wales legal system was willing to hang white men for killing Aboriginal people, before frontier practice reverted, almost immediately and for the following century, to near-total impunity. Read with its language quoted rather than paraphrased, and against the Sydney Herald’s own recorded words rather than a summary of them, the poem’s claims sharpen rather than soften: it names an execution as an execution, it reconstructs betrayal with forensic precision, and it stages a final appeal to a Christian God that the killers’ own professed faith could not evade. At the same time, its passage into print only through a settler woman’s hand, in a settler literary form, defended in settler newspapers against settler critics, discloses the narrower channel through which even the fiercest colonial-era protest against Aboriginal dispossession had to travel to be heard at all – a condition against which Aboriginal writers, advocates and communities have been arguing, in their own voices, ever since.

Sources Consulted:

Duncan Wu, “‘A Vehicle of Private Malice’: Eliza Hamilton Dunlop and the Sydney Herald,” Review of English Studies 65.272 (2014)

Anna Johnston, “Hidden women of history: Eliza Hamilton Dunlop,” The Conversation (2021)

Anna Johnston, “‘Songs of an Exile’: Sentiment and Violence in Eliza Hamilton Dunlop’s Irish and Australian Elegies, 1838–63” (Institute of Irish Studies, Queen’s University Belfast, 2023) and “Exile and Elegy: Eliza Hamilton Dunlop and Colonial Verse”

Eliza Hamilton Dunlop: Writing from the Colonial Frontier (Sydney University Press, 2021)

Australian Dictionary of Biography, “Dunlop, Eliza Hamilton”

Orlando: Women’s Writing in the British Isles, “Eliza Dunlop”;

Dictionary of Sydney and Austral harmony (University of Sydney), on Isaac Nathan;

Wikipedia, “Myall Creek massacre,” for the Sydney Herald’s October–November 1838 editorial language;

ResearchGate/JASAL scholarship on Dunlop, Romanticism and antislavery discourse;

Primary text and epigraph via australianculture.org and the Australian Women Writers Challenge Blog, sourced from The Australian (13 Dec 1838), The Sydney Herald (15 Oct 1841), and The Sydney Monitor and Commercial Advertiser (27 Oct 1841).

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, August 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010