It is no coincidence that the first elections to the First Peoples’ Assembly are happening at the same time as the lead-up to call for referendum. The connection between the two lies in contract law.
More specifically, the laws into formation of a contract. Contract formation can vary from simple to a complex, multi-step process. Two steps are particularly relevant here – 1. formation of a binding agreement by exchange of consideration, and 2. intention to create legal relations.
Formation of a binding agreement
First – formation of a binding agreement. Here is a basic example without the jargon. If you go to a restaurant, read the menu, order some food and eat the food, the law says that you must pay your bill. Why? You didn’t sign any contract saying that you would pay? Even though you didn’t sign anything saying you would pay – you still have to pay because a binding agreement has formed.
There are 4 steps of contract formation. They are;
- Offer
- Acceptance
- Consideration and
- Intention to create legal relations
Offer is what’s on the menu, and the price on the menu items. The restaurant sets the terms of the agreement in the menu, the menu is the offer. You read the menu and decide if you want to take the next step, perhaps after chatting to the waiter about what the soup-of-the-day is, or you can walk away and eat somewhere else.
Acceptance is when you order the food. It means you accept the menu items ordered and the price you will pay. When you order the food, the waiter takes your order to the kitchen and the restaurant starts cooking. It does not require that the restaurant explicitly says “yes”, taking action is enough to accept an offer.
Consideration is legal jargon for the benefit that is exchanged. In this case, consideration exchange happens when you eat the food. The kitchen went to the effort to cook your meal. There is an exchange of benefit – as in you have benefited from getting food in your belly, and that has been at a cost of time and ingredients to the kitchen who cooked it. At this step, a binding agreement has formed because of “exchange of consideration” which is – you have gained a benefit of getting food in your belly at a cost to the restaurant. The restaurant could call the cops if you walk out without paying because a binding agreement was formed when you ate the food.
Intention to create legal relations – doesn’t apply to this example, because I picked this example to explain what a binding agreement is. This step makes the agreement into a contract.
Relating these steps of contract formation back to the Yulara Constitutional reforms and the Victoria assembly. This may explain how the two are related. Identify the steps.
Offer was made by a group of First Nations people claiming to represent ALL Aboriginal and Torres Strait Islander people. The offer was this – First Nations people ask for Voice (help setting up and sustaining a First Nations political body), Treaty (if you follow my work you know the Voice is actually the Treaty, but there will also be opportunity for domestic agreement-making) and Truth telling. These three things are asked for in exchange for something – that is “sharing sovereignty”, or in other words allowing the Australian Federation to run off First Nations sovereignty. The offer was made to the entire Commonwealth because it included a request to join the Federation – in other words – it was made to all of the State governments and the Federal government. Yes – that includes Victoria, the offer was made to the Victorian Government as well.
Acceptance could be when Victoria, upon hearing about the offer at Yulara, started work to create the Victorian Treaty Advancement Commission. The stated goal of the commission was to set up a representative body. Note – if this representative body went one extra step and became constitutionally enshrined it would be consistent with Yulara request for a “Voice”. Now – Victoria Treaty going-ons happened since before Yulara – however note that the Treaty legislation and Commission (to set up the rep body) was set up AFTER Yulara. Victoria could argue later that they set up the commission in response to the offer at Yulara. I say could, might etc. because it depends on the motivation of the Victorian Government, and would hang on the answer to this question – “Would Victoria have set up the assembly had it not been for the Yulara offer?”.
Note that in contract law, acceptance does not require an explicit “yes”. Taking action is enough to accept an offer. Just like in a restaurant, the waiter does not have to explicitly tell you “Yes – we will cook your food now”, it is automatically implied by action. When the government allocates funding, sets up processes, spends time/money towards it etc. this could satisfy acceptance. Keep this in mind when you see claims that Turnbull or whoever “rejected” the Yulara statement. Actions matter.
Consideration is legal jargon for a benefit that is exchanged. When the Aboriginal community in Victoria enroll and vote in the Assembly elections, community get a benefit from the work (time/money spent) that the Victorian Government have done setting up the assembly. Exchange of consideration makes an agreement binding, just like when someone eats food in a restaurant they become obliged to pay. What I am saying here – the Assembly might not be for free! That also goes for any agreement-making and truth telling, because this was also requested in the offer at Yulara. The cost may be shared sovereignty. Participation in the assembly may turn the offer into a binding agreement because of the exchange of consideration. The qualifier is again – did Victoria set up the assembly because of the Yulara offer?
The next step is Intention to create legal relations.
Intention to create legal relations
Following on from the previous section, where we may have a binding agreement from mob voting in the assembly. When does the final step of contract formation – Intention to create legal relations occur? Note the Commission is called the Treaty Advancement Commission – a hint perhaps that the Treaty is the legal relations. Something has to be signed somewhere, and needs to be signed by a sovereign body or bodies representing First Nations.
The Assembly of Victoria itself will ultimately “enshrine sovereignty”, it says so on page 14 of the Final report of the “Community Assembly” link to document here: http://victreatyadvancement.org.au/publications
We must be governed by what our families and Community wants for us. This must be fresh and inclusive of all in our Community, regardless of the legal structure, it is inclusive of every Aboriginal Victorian voice in the State. Ultimately, the Representative Body will enshrine our Sovereignty. It is a place of strength from which to exercise self-determination.
Regarding the Assembly enshrining sovereignty. The language used in the final report of the Community Assembly opens up a huge risk. What does “ultimately” mean? It could mean immediately after the first election – this needs clarification. I doubt giving a majority-rules rep body sovereign powers is legal under Aboriginal law; without clear rules set beforehand it will inevitably push the 40% of clans into things that the 60% agreed with. What happens when the body is gerrymandered by vested interests? I understand that the community is very concerned that not every clan has a seat, but in my opinion – the real danger is this rightful concern in combination with the assembly enshrining sovereignty without clear rules limiting that power.
And if you have been following my work, you know there is already a Treaty sitting on the table being negotiated right under everyones noses – the enshrinement of the Voice to Parliament in the constitution is a Treaty. It’s all well and good to say the Assembly will not negotiate a Treaty, but will the Assembly enter into this Treaty. Note this recent quote from the Treaty Commissioner, Jill Gallagher;
Gallagher said it was important that any federal process to establish a voice to parliament was mindful of representative voices already operating. “Whatever happens at the national level it’s important we don’t have another process forced upon as as Aboriginal people in Victoria.”
Aboriginal people in Victoria should not have another process forced on them. So that implies a possibility that the Assembly will be re-used at the federal level. If the First Peoples’ Assembly of Victoria somehow votes itself to form part of the “Voice to Parliament” and is enshrined – boom – there is your Treaty and intention to create legal relations. Every mob in Victoria, by voting in the assembly has just signed up to a Treaty to share their sovereignty, and they probably won’t step foot in a negotiating table until years later. And as John Howard says, Australia can’t Treaty with it’s own citizens. Once that voice is enshrined, whoever it represents are Australian citizens recognised in the Australian constitution. There’s no “Treaty” after this – from that point it is “agreement making”. Watch the other states and note how many are also talking about or setting up rep bodies – the same danger is there.
“Victorian Treaty Advancement” – what is the Treaty that mob in Victoria are being advanced towards?
Too long; didn’t read
If that all went over your head, here is a take-home summary. If Victoria constructed the Assembly in response to Yulara, then when mob in Victoria vote in the Assembly elections they are rubber stamping the Yulara statement. Voting in the assembly elections is like voting yes to Yulara in a black-only referendum. Not voting at all, is voting no to the Yulara statement.
If it didn’t go over your head – if you think about it a little more, you know why gubs don’t care if delegates from Victoria walked out at Yulara. And you also know why they are giving out free footy tickets and visiting jails to get people to enroll.