Sky News Australia, which has been openly playing the race card for years, knowing full well that it has the means to take on anyone who would push back against the via a process of legal exhaustion, decided to wheel out Former Prime Minister and head of their de facto political wing, John Howard. He was brought out to argue against the idea of treaty with first peoples; which is a subject that the backers of Sky News and his political party would find deeply offensive as a treaty process would mean that there would be legal requirements which would be imposed upon some highly profitable economic activities. Treaty would likely impede the unfettered profit potential of mining companies; among which are both Sky News and the political party's biggest backers.
For the purposes of running an argument, Sky News Australia trying to ridicule treaty as one of the logical end points of the Voice is is entirely logical. The idea of treaty being negotiated, is not a new idea at all in in fact was touted even back before federation; so this is not a new idea. Also from the "No Case" point of view, if you're not committed to the idea of truth telling as a concept, then you can tell all sorts of lies and falsehoods and have those lies and falsehoods run all over the kosmos before the truth can even get its boots on and stand up. The headline bit of nonsense in this piece from Sky News, argues about a supposed point of fact regarding whom can enter into a treaty.
Former prime minister John Howard has dismissed the “absurd” idea of an Indigenous treaty, insisting treaties are only made with sovereign nations.
“We don’t have treaties with bits of ourselves, and it only has to be stated to be realised as a complete absurdity,” he told Sky News host Sharri Markson.
- Sky News Australia, 29th Aug 2023.
Well, Mr Howard if "it only has to be stated to be realised as a complete absurdity" then you won't mind me opening up your statement.
According to the Acts Interpretation Act 1900, then words can take on their normal meaning if read as part of a sentence. Already from the outset, arguing over what a treaty is, is already standing on shaky ground. I like Black's Law Dictionary for the reason that as a standard repository for words, it is readily accepted by any reasonable person reading law.
treaty. n. 1. - a formal agreement made between two or more parties.
- Black's Law Dictionary, 19th Edition (2019)
I do not think that we need to go any further than that. Just because you state that "We don’t have treaties with bits of ourselves" Mr Howard, does not mean that we can not forever, or that we could not imagine having treaties. Perhaps Mr Howard as a Treasurer, is hideously out of his scope and does not realise that other places with Westminster traditions of law, such as Canada or New Zealand, have had treaties with indigenous peoples for years. Saying that Mr Howard is suffering from a lack of imagination about what could be, is the kindest viewpoint here.
As for the statement that "We don’t have treaties with bits of ourselves" Mr Howard, that does not mean that the power does not exist to do so. The power to make treaties and covenants is an executive function of the persons of the Crowns in the several states who in all cases have the power to make law in "all cases whatsoever" and the person of the Crown of the Commonwealth, whose executive functions are firstly vested in the King directly (also see the Acts Interpretation Act 1900 with regards words relating to gender in legislation, and then the Governor-General as the Queen's representative.
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
- Section 61, Commonwealth of Australia Act 1990 (Imp).
Section 61 places no limits upon how or with whom the functions of the executive power of the Commonwealth are performed. Also, as a Treaty is itself a legal instrument, the general practice is that it would be written or at least ratified by the parliament; which is where the administrative power of the Commonwealth is vested. Probably the Governor-General could draw up the terms of a treaty themselves but to do so without the oversight of the Parliament would have very serious consequences, who as the elected administrative agents of the Crown, can and have exercised their power to remove even the King himself.
As for the question of the parties who can enter into agreement, I find it more than telling that a doddery old and very very white man, who refused under any circumstances to say sorry to the stolen generations and who subsequently called the Apology on the floor of the parliament an "empty gesture" and "meaningless", and who claimed that their was no genocide in Australia, should go on the company's media channels of Sky News Australia and then deny that the Crown can enter into a treaty like this.
The Crown of the Commonwealth Of Australia, as a sovereign person, and whose executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, can enter into any treaty, covenant, agreement, contract, et cetera, that it likes. The idea that an Englishman is free to do whatever the heck he likes unless hedged in by law, also extends to Section 61 of the Constitution and as the words of the text mention no such disability that Mr Howard has claimed, then quite rightly we must conclude that he is talking nonsense.
Of course the Commonwealth Of Australia, as a sovereign person, can enter into treaties with first peoples. Mr Howard is talking a bunch of stuff, played on a guff trumpet.
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