August 10, 2019

Horse 2582 - The Proper Constitutional Answer To The Uluru Statement From The Heart

One of the biggest injuries that the Commonwealth of Australia remains unrepentant for, is the injury of its birth. Unlike other countries which either fought for their independence from a larger power, or perhaps were a people united by language and culture, the Commonwealth of Australia was created by the instrument of legislation. Second to that, the Commonwealth of Australia was created by the process of Federation which brought together six colonies. It is all very well to extol the virtues of Federation but both the process of Federation and the resultant constitution which established the Commonwealth of Australia, actively ignored and indeed excluded entire people groups who had existing sovereignty claims over the ancient wide brown land of Australia.

Let's start at the beginning, for it is a very good place to start.
Various European people had arrived in Australia prior to 1770 however, the history and myth making that was still being taught while I was in school, made little to no mention of the Dutch, or Portuguese, who may have arrived before then. The myth of Australia which was told by ourselves to ourselves, was that Captain James Cook, arrived at the east coast of Australia and found an empty island continent, which was ripe to be settled and everyone who may have already been here, were an inconvenience and certainly not a multitude of different and complex cultures.
It made no mention of the Asian people who might have arrived prior to 1770, and it certainly made no mention of the people from Indonesia, the Pacific Islands, Papua, or the Torres Strait, who absolutely set foot in Australia.
As for the Aboriginal and First Peoples who were already living here, the general attitude displayed by history classes in my youth, was pretty close to that displayed by the British and then the white people of Australia right up until about the mid 1960s. Aboriginal and First Peoples were here already but they were an irrelevancy.
When Captain Arthur Phillip arrived with his eleven ships, he also considered the people already here as an irrelevancy. The 26th of January 1788 officially marks the beginning of the colony of New South Wales and in the tradition of the British, the land was stolen by the cunning use of flags.

That first injury, which should be properly seen as a military invasion as Phillip's eleven ships were part of the Royal Navy, was a piercing of the land with a flag pole, in the same way as a soldier of old would pierce an enemy with a pike. The double crossed flag of the British is inadvertantly quite symbolic as that is what would happen to the Aboriginal and First Peoples already living here.

The legal fiction which was eventually applied, which is denoted by the Latin phrase 'Terra Nullius', is the legal fiction that the ancient land of Australia was an 'empty land', which itself was immediately a lie as the very first colony in Sydney met the Eora people, and by the time the third settlement of Toongabbie was founded, they met different people in the Tugagal. Quite obviously the land wasn't empty.
The little blue, white, and red flag at the top of a pole, a dozen feet tall, was seem as having complete precedence over any original sovereignty claims which the people already living here may have had, who had their own deadly black flag with a million stars writ large across the sky, already had.

Herein lies the initial injury, the initial legal fiction, and the initial sin of the Commonwealth of Australia, for which it is still legally unrepentant and which is still mostly considered as a legal irrelevancy.
Probably the two most significant steps thus made by the Commonwealth of Australia to actually address the injuries caused by what amounts to the slowest undeclared war that I can think of, the subsequent invasion of the land and dispossession of the land through the instrument of legal fiction after the fact, and the systemic material, cultural and spiritual degradation of Aboriginal and First Peoples, were the two decisions in the High Court of Mabo v Queensland (No 2) (1992) and Wik Peoples v Queensland (1996).
Those two cases had to answer the question of land rights, which were being claimed, in opposition to the always obviously wrong fact that the imposition of Terra Nullius was incorrect. Both Mabo and Wik had to jump the legal hurdle to prove that they had a legal claim over their own land despite the fact that the land was obviously never actually empty.

Both Mabo and Wik have shed light on the fact there is an internal conflict that the High Court and indeed the Commonwealth of Australia, has always refused to address. Namely that is that if Aboriginal and First Peoples already always had land rights, then the court is uniquely unable to answer the question of the sovereignty claims of Aboriginal and First Peoples because in doing so, it would have to delegitimise itself. If the court had opened that door instead of putting it aside, then we would be in a very interesting place.
Logically it follows that if Aboriginal and First Peoples have legitimate sovereignty claims (which is reasonable given that Terra Nullius was invalid) and the High Court had to admit that there were existing sovereignty claims, then the High Court would in effect be saying that it had no right to make a decision on the matter; so it simply never addressed the issue, which means that those sovereignty claims go on unrecognised.

To that effect, the Uluru Statement From The Heart of 2017, is a request by a united Aboriginal and First Peoples voice, for those claims of sovereignty to be recognised at law and for some kind of voice/process to be worked out, so that that original claim of sovereignty can have some actual effect. It calls for a voice for the voiceless and for the beginning of a process to finally determine how that original sovereignty should fit and complement the Commonwealth.

That statement, can be found in full, here:

The vast bulk of the Constitution is to do with laying out the mechanics of how the Governor General, Parliament, and the courts should work, and the corresponding powers which are attributable to same, also should work.

The Constitution in principle, imagines a Westminster System of government like the ones already in operation in the six colonies (who were to become States) but then deliberately overeggs the pudding in terms of representation in the upper house, in favour of the smaller states so that they don't get railroaded. The idea that the upper house should have half the number of members of the lower house, is a very Victorian and New South Welsh idea.

I have no problem with the mechanics of the Constitution. That took more than a decade to argue out and several Constitutional Conventions, and even saw New Zealand and Fiji drop out of the process to do their own thing. What I do have a problem with is the original conception of Federation; which was only briefly hinted at in the main body of the Constitution and which affects the opening definitional clauses.

At inception, the Constitution contained the now repealed Section 127 which read:
In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
- Section 127 (repealed), Commonwealth of Australia Constitution Act (1900)

Now as that is contained within the main body of the Constitution, it shouldn't really have that much of an effect on the mechanics of how the Parliament operates. The truth is that after this was repealed as a result of the 1967 referendum, this was proven in that Parliament operated identically to the way it did before. The only real effect that the repeal of Section 127 had in practice was the inclusion of Aboriginal and First Peoples in the reckoning of how seats in the House of Representatives are apportioned; by 1967 so much damage had been done that I don't think that that has made any practical difference to the numbers of members that each of the States get in the House.

Section 127 though, is an after the fact piece of legislation. I know that that sounds somewhat stupid considering that this is the Constitution and literally the instrument which creates the Commonwealth of Australia but it is still important. Section 127 as a mechanical provision which prescribes what is to happen going forward, is inadvertently a description of what had happened in the past. To that effect, it is worth rereading the opening clauses which make up the definitional parts of the Constitution.

Proclamation of Commonwealth 
It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.
- Clause 3, Commonwealth of Australia Constitution Act (1900)

Operation of the Constitution and laws
Operation of the Constitution and laws This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
- Clause 5, Commonwealth of Australia Constitution Act (1900)

"The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for methe time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State .

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.
- Clause 6, Commonwealth of Australia Constitution Act (1900)

Note that at every turn where it mentions "the people of" such and such a State, that the base assumption is that Aboriginal and First Peoples are not part of that State. It stands to reason that Section 127 which is obviously exclusionary, if it is taken in either case of being prescriptive or descriptive, means to say that Aboriginal and First Peoples are not part of the conception of Federation.
If this is true, then we can assume at law that Aboriginal and First Peoples are treated as some kind of other. It is pretty obvious, given that new Parliament's opening pieces of legislation, that the Commonwealth of Australia through both operation of Section 127 and policies specifically relating to Aboriginal and First Peoples, hoped that they would either die out or otherwise simply disappear.

That did not, has not, and will not happen.

Having reached this point where the High Court deliberately sets aside the question of Aboriginal and First Peoples claims of sovereignty, it is necessary to examine what kind of construction of sovereignty that those claims are competing against.
This has serious implications.

On a purposive approach, the debates at the Constitutional Conventions showed the clear purpose of section 127 was to limit section 24. Section 127 operated to prevent the number of Aboriginals being used in the calculations for the number of members of the House of Representatives. Section 127 was quite a narrow provision, in that it did not use the word "statistics". Accordingly, section 51(xi) still allowed the Commonwealth had the power to collect statistics on Aboriginal people which it, in fact, did according population numbers.

However, having secured the statement in the Constitution that "aboriginal natives shall not be counted" in the reckoning of the numbers of the people of the states, the immediate consequence almost from 1st January 1901, was that Aboriginal and First Peoples also had rights denied to them, precisely because they were legally not counted in the reckoning of the numbers of the people of the states.
This was especially cruel when applied to the people of the Torres Strait, who the Queensland Government didn't even consider to be legally natives of Queensland. Not only were they denied land rights, the right to vote, the right to their own religion, and the right to form a union, they were forcibly removed from their islands in some cases, after the pearling rush had ended and they were forced to move to the mainland.

Section 24 of the Constitution, which was the ostensible reason why Section 127 was included in the first place, had the effect of deliberately undercounting the number of Aboriginal and First Peoples because it was firstly assumed that as they were 'scattered' (which was mostly untrue anyway), they would be too hard to count; and secondly it had the effect of making the States where there was a comparatively large population of Aboriginal and First Peoples, underrepresented in parliament. It reads:

Constitution of House of Representatives
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:
(i)  a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;
- Section 24, Commonwealth of Australia Constitution Act (1900)

If that wasn't bad enough, Section 51 which lays out the main legislative powers of the parliament and by inference the Federal Government, also contains the so-called 'race power' which at various stages has been used as a very cruel and blunt instrument against people of Asian desecnt as well.

Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxvi)  the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;
- Section 51, Commonwealth of Australia Constitution Act (1900)

The fact that Aboriginal and First Peoples did not simply disappear mostly didn't pose a problem for the Commonwealth of Australia. The reason why it didn't pose much of a problem is that when your conception of something or more importantly someone is that of other, then it becomes really easy to treat them as unpersons.
The newly conceived Commonwealth of Australia to that end, invented missions and reserves, stole children from their families, and set about on the very paternalistic task of 'improvement' and 'civilising' Aboriginal and First Peoples, with no real regard for their well being or humanity. It wasn't until 2008 that the Commonwealth sought to even apologise for this kind of abhorrent behaviour.

Although I know my way around human rights legislation reasonably well, indeed better than most lawyers that I come in contact with (because they are mostly concerned with either Family Law or Commerical Law, and would blow me to the weeds in those areas), I have been disappointed with the ontology of human rights law for quite some time.
It seems to  me, based on lots of reading, that human rights law mostly comes out of the branch of political philosophy concerned with classical liberalism. Liberalism holds the individual at the centre of its firmament as though it were the sun around which all concepts orbit.
Classical liberalism and human rights law as a result, is in my not very well paid opinion, hopelessly inadequate at looking at questions of collective responsibility; especially what kind of collective responsibility is owed by corporations and nation states.

The way I understand Aboriginal Law, at least to and for the people of the area in which I live, is that the concept of individual rights is always secondary to one's responsibilities to the people and to the land itself. The whole notion of citizenship which in western democracies post-Westphalia, is tied to the idea of a nation which is ringfenced by a boundary drawn upon a map. In a lot of Aboriginal Law, the concept of nationhood is concurrent with tribe, group and place; there is no distinction between those concepts, which is actually a tighter and more compact notion. Western Nations can redraw the boundaries but how do you draw a boundary if you are part of the land and it is part of you?

The Uluru Statement From The Heart says this on that same subject:
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

The answer to the question that the Uluru Statement From The Heart poses, is in my opinion, so absolutely obvious, that it positively yells it from the page.
- Terra Nullius was and remains invalid.
- Aboriginal and First People's sovereignty was never extinguished.
- Federation, that is the process by which the Commonwealth was constituted, remains incomplete.

If it remains incomplete, then the work of proper Federation remains unfinished. That says to me that the mechanism by which Aboriginal and First People's sovereignty and all the claims of law, religion, spirituality, people, and country, which exist therein and have existed from time immemorial in a very real legal sense, is to recognise that before a British flag was speared into the land as an act of first injury, that there was always a deadly black flag of a hundred billion stars which flew over the land and continues to do so.
The six colonies were Federated into the Commonwealth of Australia and their voice to parliament as states is enshrined in the Constitution with seats in the Senate. It seems to me that the acceptable answer to put forward an Aboriginal voice to the Commonwealth of Australia, is by that exact same method.

Since the Constitution already provides six Senators for the original states, and we've already established that Aboriginal and First Peoples were already a state in existence, then at very least that should entitle Aboriginal and First Peoples to six Senators; as a single electorate.
The Constitution already provides for the admittance of new states and all that this would be doing is using the mechanism which should have been used in 1901.

The big problem that this poses, especially for the authoritarian right, is that it actually has to face the ugliness of collective responsibility in terms of redress. The principle actors who make up the authoritarian right in facing that question, shirk any responsibility that that redress might demand and always revert to an economic notion of sovereignty, which can only view people and the nation as economic units, which are bounded by lines on a map and/or hedged in by law.

I have to declare a heap of bias here but I find the response from the cultural right and particularly the IPA's response really offensive. During NAIDOC week, we had Barnaby Joyce act as a screen by making comments that there shouldn't be a third chamber to parliament, as a consequence of the Uluru Statement From The Heart. Never mind that it never actually called for the setting up of a third chamber but don't believe the truth or let it get in the way of the rhetoric.
Over on Sky News, we had both former 'Freedom Commissioner' Tim Wilson (who actually did diddly squat in that role that was useful) and Senator James Paterson, both make the comment that any representation which might be made by Aboriginal and First Peoples would be by its nature discriminatory and therefore rejected on the grounds that Australians shouldn't be divided by race.
Barnaby's comments were stupid but both the comments from the orwellian Member for Goldstein and the Senator for the IPA deserve utter contempt and outright scorn. They are the comments of someone intent of punching people's teeth out while wearing velvet gloves.

You only need to look at the Constitution at the time of conception to see that it specifically and very deliberately discriminated and divided on the grounds of race. The whitewashing which was the net effect of the 1967 referendum in no way attempted to make good on the very real damage that was perpetrated by the Commonwealth as a direct result of that same Constitution. Furthermore, Section 51 still contains the so-called 'race powers' which as far as operation goes, have always been about white people exerting power over Aboriginal and First Peoples, people from the Pacific islands who arrived as farm hands, and people mostly of Chinese descent to deport them even though they may have been third generation citizens, under the White Australia policy.

To claim that trying to make good and redress what the principle of equity and justice demands but clothing it in that kind of language, is hypocrisy and knavery.
I guess that my idea in finally recognising the sovereignty of first peoples in Australia, is to go back to the original notion of how the Commonwealth as a modern construct came to be.

The traditional notion (and I use that word as a ten cent abhoration) is that the six colonies came together to Federate into the Commonwealth. The problem with that is that instead of recognising that there were any claims to sovereignty which could have existed prior to 1788 (which we have only recently acknowledged) is that those claims were never invited to join the Federation.

In finally acknowledging that fact, which used to be explicitly stated in the Constitution, it is time to recognise that there were claims of sovereignty before either the Commonwealth existed, or before white people stood upon the land, it is necessary to admit that those claims were never extinguished. If those claims were never extinguished, then it seems to me that the logical solution to addressing claims of competing sovereignty legitimately, is to use the existing mechanisms and go though the process which addressed the claims of sovereignty that the six states had; that means federating Aboriginal and First Peoples into the Commonwealth as a state without borders and the six Senators attributable therein. It also answers the question posed by the Uluru Statement From The Heart and puts aside the objections of unreformed racists and knaves because it doesn't create a third chamber.

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