I live in this strange country in the world called 'Australia'. Like so many other nations in the world, it was wrought from ex-colonial possessions of the British Empire, originally seized and stolen by force and which has never come to terms with the origins of its formation. Other nations have tried to deal with the long tail of colonialism by establishing law and a remedial process to address the effects of injury but Australia which is very much like a corporatocracy and acts exactly as Karl Marx described capitalist states by "pretending neutrality to maintain order, but serving the interests of the rich", very much refuses to address any injury or even concede that such injury exists.
A process was agreed upon by thousands of First Peoples groups across Australia, who sent delegates to the First Nations National Constitutional Convention in 2017. Over the course of four days and within sight of Uluru in Central Australia, the Convention made a call for 'First Nations Voice' to be inserted into the Australian Constitution and a Makarrata Commission to supervise a process of "agreement-making" and truth-telling between the Australian Government and Aboriginal and Torres Strait Islander peoples.
That process finally published the Uluru Statement From The Heart; which contains these words:
https://ulurustatement.org/the-statement
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.
- Uluru Statement From The Heart, 26th May 2017
All of this is fair and reasonable but it has ultimately gone nowhere. We have seen the Federal Government repeatedly rule in the interests of its corporate donors; at the expense of the people of Australia and it has done exactly zero with the Uluru Statement From The Heart. It is all very well to make demands of the Federal Government but when at law it refuses to even acknowledge that there is any injury to be addressed, then this process is condemned to stall; which it has done.
What I thought that I would do, is look at how the Commonwealth Of Australia is constituted and why the expression of that constitution has resulted in this refusal to do nothing. Parliaments tend to follow the law of governmental inertia; which states that a body at rest continues in its state of rest, or in when motion continues in motion, unless acted upon by an outside force or an inside force which somehow managed to change the direction of motion. Inertia comes from the Latin word, 'iners', meaning idle or lazy; if there's one thing that parliaments are, it's notoriously lazy.
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/preamble
An Act to constitute the Commonwealth of Australia
[9th July 1900]
There are very few nations in the world which are not constituted by an act of parliament or a constitution of some sort. On the face of it, a constitution is merely the rules by which rules are made but it is the constitution itself which defines the set of terms under which the monopoly of force is established. When everything is reduced to its most elemental of terms, then only thing which ever determines sovereignty, is the ability to command a monopoly on force. Everyone who was born after the nation has been constituted, either by a written set of rules or perhaps by the exercise of that force, is brought into submission either voluntarily or involuntarily under that sovereignty unless they can muster another larger show of force.
This was quite brutally brought into sharp focus in an Australian context, when involuntary submission to the Crown, was demanded at the point of a gun, by the various colonial forces; which woiuld later go on to solidify into the colonies and then themselves voluntarily be brought into submission via the act of Federation into a new Commonwealth.
The Crown as corporation sole, is in fact the corporate person under whom the laws of the nation state of Australia are delivered from; with the exercise of executive and the the exercise of enforcement og those laws, also subject to that same corporation sole of The Crown. The Crown is also a different person to the Queen; who is subject to the laws which are made by the various corporations sole, which define the various nation states and sub nation states which exercise the instruments of government.
That however begs a question. Who agreed to that? The answer to that question is found in Clause 0.1
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
The people of these states "have agreed to unite in one indissoluble Federal Commonwealth under the Crown". Did they now? Who didn't agree? First Peoples. In fact, they were never even as much asked. In exactly zero of the colonies, the referendum questions were posed to First Peoples. They were never asked and never had the opportunity to say 'yes', 'no', or anything at all.
Before Federation, Aboriginal peoples were under the control of the colonial governments. In fact, after Federation, that control over all matters relating to Aborigines remained in the hands of State governments (except in the case of Northern Territory and what would become Central Territory for a time and the Australian Capital Territory which was under the Commonwealth Government).
Because the status of First Peoples was under the control of the states, the wording of Section 51 which defines the powers that the Federal Commonwealth Parliament explicitly has, originally said:
The Parliament shall, subject to this Constituton, 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 127 said:
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.
(Both of these were repealed in the 1967 referendum)
This means that at the time of Federation, First Peoples were excluded from the rights of Australian citizenship, including the right to vote, the right to be counted in a census and the right to be counted as part of an electorate. In addition, they were not subject to Commonwealth laws and benefits in relation to wages and social security benefits such as maternity allowances and old age pensions.
Not only were First Peoples excluded from the process of Federation, they were deemed not to be counted in the number of people of the Commonwealth after it.
Clauses 0.2 and 0.3 materially do nothing with the fate of First Peoples and continue to ignore them entirely.
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
Inertia, which is the art of laziness in both physics and politics, happens because things that are set in motion remain in that same passage of motion unless acted upon from the outside. With regards First Peoples, that motion has never really been started; so the parliament does nothing because it has always done nothing. To claim that First Peoples were included in the process of Federation is a lie. To claim that they were included in the project of the Commonwealth after Federation is also a lie. It is also a lie to suggest that sovereignty was ever ceded to the Crown:
2.44 Sean Brennan, Brenda Gunn and George Williams note:
Mabo (No 2) left the ‘settlement’ theory for the acquisition of Crown sovereignty undisturbed. But traditional law and custom—an additional source of law in Australia that does not derive from the Crown—was newly recognised as a coherent system. Native title adjudication henceforth would become an ‘examination of the way in which two radically different social and legal systems intersect’.
- Australian Law Reform Commission
If sovereignty of First Peoples wasn't extinguished by the doctrine of Terra Nullius (which is what Mabo v Queensland No.2 strikes off), then some kind of unfederated sovereignty must remain. My solution to this would be a a solution which is universally reviled by everyone and that would be to Federate First Peoples as a seventh state; which would be independent of land claims. This seventh state would be a virtual state; where First People would vote for six Senators, who would then sit in the parliament like any other Senator. That would satisfy the demands of the Uluru Statement Of The Heart but it might not be particularly popular.
My fear is that a constitutionally enshrined voice will never see the light of day if any kind of proposal is rushed to a referendum and fails. Parliamentary inertia has been amazingly successful so far and given the Australian people's tremendous capacity for exacting cruelty on people through the ballot box, they will be manipulated by those same forces who have always denied that no injury exists. Future parliaments will pretend neutrality to maintain order but serve the interests of the rich; just as they always have done. The Constitution was deliberately racist from the outset and unashamedly so; it just that most people have never bothered to read it.
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