Type 1: Under the Doctrines of Discovery, the discovering power has a fiduciary duty to the native inhabitants of the discovered land. The interests of the native inhabitants over their territory take precedence over the interests of the European discoverers. This is why treaties were seen as necessary. A treaty usually involves an exchange, for example – beads and trinkets in exchange for land. The handing over and acceptance of the beads and trinkets makes the overall transaction appear to be in the natives’ interests. Another way of looking at this is that the European discoverer has a duty to PROTECT the pre-existing interests that the natives have over native lands.

Type 2: Under a English monarchy system, the crown has a duty to protect their subjects from foreign attacks. This is a wider part of defending the territory from foreign attack. This is a type of PROTECTION – it is based on a relationship between crown, territory and subject. This relationship has conditions of Crown allegiance for the subjects, and duties to subjects for the Crown under the Magna Carta.

In Australia, a Frankenstein monster version of these two forms of protection has formed.

There was no treaty with the natives. Instead the territory was acquired by the British through treaties and transactions with third parties – including with the Dutch in 1824, and a treaty of federation between the colonies themselves. The natives became subjects of British law by being inhabitants in British Crown territory – territory which was acquired by the British by fraudulent means. The natives are not “British Subjects” in the usual sense of the meaning – those having a relationship and allegiance to the British Crown (which comes with certain privileges).

But the natives have become “British Subjects” in the sense of being “subjects” of British law – subjects in the same way that a lighthouse in England is subject to British law. This is clear when reading the reasoning in the court case R v Lowe. The court decided to treat the murdered Aboriginal man as if he were a British Subject for the purposes of the case. The reason was not for protection of life of an Aboriginal man as a British Subject with a relationship of allegiance to the Crown – but because the incident happened on British dominion/soil. R v Lowe was the start of Aboriginal people being like lighthouses, or Flora and Fauna – objects subject to British law.

R v Lowe was a hook, a foot-in-the-door that was gradually extended upon using other court cases.

The notion of protection has two different meanings, and it has always been ambiguous which of these two meanings is the basis of Aboriginal protection policies from the state. This explains why protection often paradoxically involves destruction – with official government Protectors running massacres. For outward appearances, to the international observer watching in terms of the Doctrines of Discovery – protection means protecting native’s interests in their land, and at least pretending to put those interests ahead of the discovering power’s interests. But domestically in Australia – protection had the second meaning which spelt destruction of Aboriginal people who interfered with the British Crown’s allegiant subjects (squatters) enjoyment of their rights under the Crown’s law.

The Australian Constitution Act is partly written for outward appearances, and partly for internal administration. The exclusion of people of the aboriginal race (small ‘a’ in aboriginal because it was an adjective in the original text) in the races power was to look like it was for the protection of the interests of the natives. This is protection of native people’s interests who are colonised under Discovery doctrines. This should have been a reasoning put forward in the Hindmarsh Island case – the basis that federal legislative power should only be used to make laws for the benefit of native people due to the fiduciary duty of a colonising power. There are US court cases that could have been used to justify this position, and US court cases have been used in other Australian cases. But much weaker reasons were used because the Hindmarsh Island case was a collusive case for further extension of colonial power.

Aboriginal people’s own free enjoyment of their interests in their land played second fiddle to the interests of white British land owners – and this still is the case today. Native title consists of whatever is left over after squatters have what they want.

Of the two kinds of Protection – it is the first type that needs to be re-emphasised. The native people’s territorial interests take precedence and require protection over the territorial interests of the occupying colonial state. This is more recently emphasised in UN General Assembly resolutions 1514 and 2625. It is our right as peoples under colonial subjugation on our own lands to territorial integrity, and our right to freely determine our political status.

The colony on the other-hand would rather emphasis the second type of protection (as allegiant Crown subjects) as it implies we are simply a minority, with no right to make laws over our own land, or to have homeland/s of our own.

I recently found out that the South Pacific Island Protection Acts (1872 and 1875) were repealed by John Howard in 1999.

I used to think that these acts have not much to do with Aboriginal sovereignty. If you read the acts, and consider their context – they work on the assumption that the Australasian colonies are fully part of the British Dominions. The acts only protect the rights of tribes who are outside of British Dominions and in the Pacific. The acts do not protect the rights of any tribes in what is now Australia, with the exception of Torres Strait Islander tribes who were not part of British Dominions at the time of the acts.

But I since figured out that these acts may be important for Aboriginal sovereignty for another reason. And it is related the repeal of these acts.

I found it interesting that this was repealed in 1999 because it was the year of the republic referendum. I have also noted that the Pacific Island Protection Act is a very special act. It is a special act – not so much because it is to do with protecting the interests of tribes, but because it is in regard to extra-territorial jurisdiction of the imperial system.

The repeal of the Acts

The full repeal of the Pacific Island Protection Act happened in two steps, one step in London 1986 and the other in Canberra 1999. Periodically – for example every year or every few years – a form of legislation housekeeping takes place in common law parliaments, and many old acts are changed and repealed in bulk en masse.

In 1986, the British/Imperial parliament did a mass cleanup of some cobwebs. Here are a few interesting Imperial acts that may have some relevance to Australia that were completely repealed in 1986 just after the Australia Acts passed (full list here):

• Pacific Islanders Protection Act 1875: is an Act to ensure British subjects who are in the Pacific to protect the rights and interests of the local inhabitants. I wrote on a bit about it here

• The British Settlements Act 1887 is: An Act to enable Her Majesty to provide for the Government of Her Possessions acquired by Settlement. It is about giving her majesty the power to establish courts and related activities in terra nullius possessed lands.

• The Nauru Island Agreement Act 1920 was a dead letter since 1973, but it wasn’t until 1986 that it was repealed. It was an agreement to for Australia administer/plunder phosphate in Nauru in a spoils sharing deal with New Zealand and the UK.

I will concentrate on the Pacific Islanders Protection Act for this post – but the other two are also interesting and related to colonialism and the Australia Acts: I might write more about them later.

Timeline

Here’s a timeline of a few things I’m going to put together here;

• Pacific Islanders Protection Act – Two related acts, 1872 and 1875
• Federation – 1901
• Australia Act (Commonwealth) – Assent 4 December 1985, Commenced 3 March 1986
• Australia Act (Imperial) – Assent February 1986, Commenced 3 March 1986
• Statute law repeals act (Imperial) – 2nd May 1986, where the Imperial Pacific Islanders Protection Act was repealed in London
• Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (Commonwealth) assent 24 Aug 1999 – where the Australian Pacific Islanders Protection Act was repealed in Canberra
• Republic Referendum – 6 November 1999
• Amending Acts 1990 to 1999 Repeal Act 2016 – February 2016
• Uluru Statement – May 2017

The Pacific Islanders Protection Act.

For the purposes of this post, concentrate more on WHO and WHERE this act applies, not so much WHAT the act is about. So please forget about slavery, protecting tribes or Blackbirding for now. The special thing about this act is the WHO and WHERE – the jurisdiction of the act.

The 1875 act sets out laws that apply to British Subjects who are temporarily NOT in British dominions. If you are a British Subject, you are normally resident in the Australasian colonies, and you take a trip into the Pacific – this Act applies to your behavior. The laws apply to you even when you are not on British soil, and British soil here includes the Australasian colonies. So these are extra-territorial laws. Wherever an Englishman goes, his law is taken with him.

In a way, a colony runs entirely extra-territorially, because a foreign Crown is the authoritative head of the colony, and assents to all laws. Legislative, administrative and executive function may gradually be shifted to happen on “Australian soil”, however the final assent and sign-off is executed by the foreign Crown.

The Pacific Islanders Protection Act was special because it was a two-hop, extra-territorial act. It was for British Subjects, normally resident in the colonies, regarding their behavior in a third location (the Pacific). It was not a law for ALL British Subjects in the Pacific.

Note the sequence and timing of how it was repealed in sequence with the Australia Acts;

• Pacific Islanders Protection Act – Before Federation, in 1875
• Australia Act (Commonwealth) – Assent 4 December 1985, Commenced 3 March 1986
• Australia Act (Imperial) – Assent February 1986, Commenced 3 March 1986
• Statute law repeals act (Imperial) – 2nd May 1986
• Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (Commonwealth) assent 24 Aug 1999
• Republic Referendum – 6 November 1999

In 1986, the Pacific Islanders Protection Act 1875 was taken off the Imperial books. This happened AFTER the Australia Acts, so it had no effect on Australian law because the Australia Acts created a separation between Imperial laws and Australian laws. The Statute law repeals act (Imperial) 1986 had no effect except cleaning up dead paperwork on the London side.

The Criminal Code Amendment Sexual and Slavery Servitude Act 1999

Moving on to 1999: this is where things get interesting. The Criminal Code Amendment Sexual and Slavery Servitude Act 1999 was passed in the lead-up to the 1999 Republic Referendum. This act repealed – in Australian law; the Pacific Islander Protection Act 1872 and 1875, and other imperial acts relating to slavery. This act basically re-enacted and modernised imperially inherited anti-slavery laws.

In jurisdictional scope, the Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (I’m just going to call it the 1999 slavery act) is way more extensive than the Pacific Islanders Protection Act. The 1999 slavery Act overall does not just apply to Australian subjects/citizens whilst abroad in a specific region. Specifically, the sections regarding sexual servitude apply to actions committed overseas, and apply regardless of citizenship or residency status in Australia! This is extraordinary because a Crown normally has jurisdiction over Crown subjects and over Crown lands – yet this 1999 Act extends beyond both factors at the same time.

This act is perhaps Australia’s first home-grown, extra-territorial Act. This makes it a milestone of legislative independence. It has removed two-hops laws against slavery, and made a direct and distinctly Australian, extra-territorial, modern anti-slavery law.

This slavery act was assented to just before the failed 1999 Referendum when Australia was supposed to become a republic. I believe this special extra-territorial act was part of preparations to facilitate decolonisation of Australia via integration. Integration as a decolonial strategy (preambular recognition – 1999, YouMeUnity, Recognise) was dumped with the Uluru Statement. The 1999 slavery act was later repealed in 2016, not long before the Uluru Statement. The lifetime of the 1999 slavery act lines up perfectly with Australian policy towards decolonisation by integration.

Think about it – for Australia – perhaps all land is extra-territorial, because Australia has not yet properly secured it’s land through treaty. For decolonisation via integration/preambular recognition to happen, parliament needs to be able to “grab” the ability to legislate for territory it hasn’t gotten through treaty. Parliament demonstrates this extra-territorial jurisdiction using the 1999 slavery act. But the Uluru Statement has a treaty built-in, so demonstrating extra-territorial jurisdiction isn’t needed, as the treaty will secure the land. Hence the extra-territorial 1999 slavery act wasn’t needed, and was repealed before the Uluru Statement.

TL;DR

The real significance behind the Pacific Islander Protection Act is not about saving the rights of the tribes, it is about jurisdiction.

The British empire passed laws that apply to British Subjects who are normally resident in external British realms, but who are temporarily outside of those realms.

Australia one-upped that, and passed laws that apply to persons who are not Australian citizens, who are not even Australian residents, and for acts committed outside of Australian territory.

A head of a Commonwealth (a crown) has jurisdiction over acts committed on it’s territory, and has jurisdiction over it’s subjects even when those subjects are not present in the territory. So, as a constitutional monarchy – what basis of authority does the Australian Parliament have to pass legislation to prosecute acts committed by non-subjects outside of the Australian Crown’s territory?

I would argue that the 1999 slavery legislation is ultra vires (beyond their right authority). They are a law unto their own.

Another thing I would say is: don’t use the Pacific Islander Protection Act as a tool to argue for tribal autonomy or sovereignty. Not only did the acts never protect our rights to begin with, but the legislation that replaced it between 1999 and 2016 was very draconian in it’s jurisdictional scope. Bringing up the Pacific Islander Protection Act as an argument for tribal autonomy is like putting a sticker on your back saying “please use your fake Australian Crown to make laws over us”. We should be doing the opposite, and telling the colony to back-off and stick their laws where the sun don’t shine – at least until there is a political settlement.

In UN General Assembly Resolution 2625 – the Friendly Relations declaration, there is a section on colonialism. There is a chunk of text about ending colonialism and about the right to independence for colonised peoples – and near the end of that chunk of text is this paragraph:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

United Nations General Assembly Resolution 2625,
October 24 1970

This paragraph must have sent chills down the Australian state. Australia had just spent a decade getting changes to the race power in the constitution through – but this clearly tells them that those race power changes are not enough. The government needs to represent the whole people belonging to the territory. But the government in fact – only represents people who are not of the territory – the “settlers”, plus immigrants naturalised by the settler polity. Both settlers and immigrants are there without a treaty. The government discriminates based on race. The constitution contemplates the states denying the vote based on race. The denial of vote has historically applied to Aboriginal people.

The entire colonial apparatus runs using the British crown as their source of authority. The problem is the British Crown does not have authority over the land, or the people of the land.

The Parliament enacting clause change (1973)

At the start of 1973, the Australian parliament started using a different enacting clause for their legislation.

An enacting clause is very important. It is to indicate the source of authority that an act is done under. For example – in the name of the King, in the name of God etc. It gives the act a stamp of authority.

The enacting clause for Australian acts changed between the closing of Parliament in 1972 into 1973.

At the end of 1972 the clause was;

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:

At the start of 1973 the clause was;

BE IT THEREFORE enacted by the Queen, the Senate and the House of Representatives of Australia, as follows:

This is a pretty big change, with no real explanation. It signals a possible change in the authority that Parliament acts under. It’s a precursor for more changes to happen in 1973.

The Royal Style and Titles Acts – 1953 and 1973

Enter – the Royal Style and Titles Act 1973 (Cth). This act is just a couple of years after the UN Friendly Relations Declaration. It was act number 114 for the year.

This superseded the previous Royal Style and Titles Act 1953 which was only a few decades old at this stage. The 1953 titles were made especially for Queen Elizabeth II’s coronation, and similar acts were passed in other commonwealth nations around the same time.

The 1953 coronation royal title for Australia was:

Elizabeth the Second, by the Grace of the God of the United Kingdom. Australia and her other Realms and Territories Queen. Head of the Commonwealth. Defender of the Faith.

(source)

One thing I want to point out – is that the 1953 title has by the Grace of the God of the United Kingdom, not the God of the entire world/universe. This title is often written incorrectly. For example wikipedia has it as Elizabeth the Second, by the Grace of God, of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. Note in wikipedia, full-stops are replaced with commas, and a single “the” is dropped – such errors are very commonly replicated. The removal of a single “the” widens the jurisdiction of the “God” referred to from just the UK to the entire universe. Overall the changes significantly change the meaning of the title. **

**Edit 13/06/22: I did some more digging and found this is incorrect. See post here.

Below is the new 1973 title they decided to use is;

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

(source)

This is not just a different title, but a different Crown. Head of the Commonwealth here does not refer to the Commonwealth of Nations as in the 1953 style, but to the Commonwealth of Australia.

Which God?

It is conveniently ambiguous whether God in the 1973 title refers to the God of the United Kingdom, the God of Australia, or the God of the Universe. In this post linked here I argue that the ceremony during the Uluru Statement may have been a coronation, this ties in nicely with this God becoming in future retrospectively a local Aboriginal God.

So what happens when Queen Elizabeth II of the UK passes away and her successor is coronated “Queen of Australia”? Who is going to coronate her successor? The Archbishop of Canterbury has a link to a local God of the United Kingdom as spiritual head of the Church of England, but he has no connection to whoever/whatever is the God of Australia. The Archbishop of Canterbury cannot coronate the “Queen of Australia”. Only Aboriginal people have the requisite local authority, hence the ceremony concocted by the Referendum Council at Uluru.

Perhaps this problem of Godly jurisdiction is why lately there has been talk of Church of England reunification with the Catholic Church. Reunification may help resolve this problem as many parts of the British colonial Empire under the authority of the Church of England are in a similar situation. Reunification would create a mega-church with near global authority, and would smoke-and-mirror the problem away for remaining British colonies.

A.C.T. Representation Act

Act number 111, very shortly before the Royal Style and Titles Act was the Australian Capital Territory Representation (House of Representatives) Act 1973.

This act gave the people living in the Australian Capital Territory (A.C.T.) representation in Parliament. Before this time, there was no representation in Parliament for people living in the A.C.T. Note that this act to create new seats is also along the same theme of ensuring Australia’s government represents the whole people belonging to the territory according to the UN Declaration on Friendly relations. Australia cannot try to claim it represents all of the people without having parliamentary representation for people living in A.C.T..

The fact that this act was passed around the same time as the Royal Styles and Titles Acts is anecdotal evidence that both acts are related to a similar goal.

Why didn’t the Federal Government do anything with the new 1967 power?

There’s been commentary on how after the 1967 referendum, the Federal government got powers to make laws for the Aboriginal race, yet they didn’t do anything with those powers until the early 70’s. This makes perfect sense.

The referendum was for the benefit of changing the outward appearance from the international observer of constitutionally having a state representing people of the Aboriginal race. It was essentially for show – not for Aboriginal rights or Aboriginal welfare.

Nothing happened with the power until 1972, after the Friendly Relations declaration had shifted the dynamic. It was also when Whitlam was elected which provided a good cover for the flurry of changes that came into place.

Royal Powers Act 1953 is still in effect

In 1953 was the Royal Powers Act. One very interesting thing about this is that it is still in effect to this day.

Here is section 2 of the act;

2  Exercise of statutory powers by the Queen

             (1)  At any time when the Queen is personally present in Australia, any power under an Act exercisable by the Governor‑General may be exercised by the Queen.

             (2)  The Governor‑General has the same powers with respect to an act done, or an instrument made, granted or issued, by the Queen by virtue of this section as the Governor‑General has with respect to an act done, or an instrument made, granted or issued, by the Governor‑General himself or herself.

             (3)  Nothing in this section affects or prevents the exercise of any power under an Act by the Governor‑General.

             (4)  In this section, references to the Governor‑General or to the Queen shall be read as references to the Governor‑General, or to the Queen, acting with the advice of the Federal Executive Council.

As soon as “the Queen” is personally present in Australia, she can exercise her power. The question is, which Queen?

This might be why in 1986 that the Queen physically came to Canberra to sign the Australian version of the Australia Act. This was a job for the “Queen of Australia”, not the imperial crown. She relinquished Aboriginal sovereign administrative power to the Australian parliament, signing her name as the autochthonous “Queen of the Aborigines”.

I find it interesting that this act is still in effect – it shows that the colony still holds the power of the imperial Crown as a back-up, and is not ready to let go just yet. This should be a dead letter and would have been repealed by now if Australia were truly independent.

Conclusion/Summary

The UN Declaration on Friendly Relations requires that a State has a government representing all of the people of the territory.

Australia is a federation of colonies, none of which have a treaty with the people of the land. Australia’s government runs under a foreign Crown, and does not represent the people of the land. It is therefore vulnerable to a decolonisation challenge, and challenge of it’s territorial integrity according to the Friendly Relations declaration.

Territorial integrity is more than just Land Rights. It is full sovereignty over territory. Aboriginal territorial integrity overrides Australian territorial integrity under the Friendly Relations Declaration.

The way Australia is trying to get around this is to manufacture a new local Australian Crown which represents the land and the people of the land and their autochthonous (local, Aboriginal) sovereignty. This manufacturing of the new Crown began after the Friendly Relations declaration – the time where it’s necessity became clear. Similar changes happened across the Commonwealth of Nations, not just in Australia. The local Crown is rightfully an Aboriginal Crown. Australia is conducting a coup of the Aboriginal nations’ Crown, and gradually appropriating that Crown for themselves by conflating it administratively with the British Imperial Crown. They have done this through creation of new styles and titles, and new Parliamentary enacting clauses amongst other things.

(re-writing this for clarity and because I’m revisiting and trying to better trace what happened: 5/5/2022.)

The Australia Acts 1986 includes a modification (see end of post for relevant part) to section 11A of the Queensland Constitution Act 1876-1978. Section 11A of the Queensland Constitution is about the office of Governor. Under the Queensland Constitution itself – this section 11A cannot be modified without a Queensland referendum. BUT THERE WAS NO QUEENSLAND REFERENDUM IN THE 80’s!

Does this mean that the Australia Acts itself is of no effect of an Act, because it would need a referendum in Queensland for it to be properly enacted?

See what the Queensland Constitution act says:

Queensland Constitution Act 1876-1978 (this particular section 53 was added in 1977)

Certain measures to be supported by referendum

53.(1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely—sections 1, 2, 2A, 11A, 11B; and this section 53 shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.

Section 11A can’t be touched without a QLD referendum. But somehow 11A was changed by the Australia Acts – and with no QLD referendum. Reading the above, it sounds like the entire Australia Acts are of no effect because it was not approved by electors in QLD.

There seems to be a lack of contiguity in Queensland’s constitution.

To fix, Queensland parliament appears to have done a clean-up job and reenacted almost the entire constitution as the Constitution of Queensland 2001 – also without a referendum. What power do they have to do this???

They left the old remnant 1876 constitution looking like a pile of crumbs – repealing most of it. Some parts are left behind. 11A is there, but with the Australia Acts amendments (done without QLD referendum), and other clauses to allow them to steal Aboriginal land in – section 30 regarding selling waste lands of the Crown, and section 40 which allows the state to steal and sell our minerals.

See link here and the image above for what is left of the real constitution – most sections are “repealed”. Click here for an older version before it was butchered.

*Just found this link here – I’m not the first to find this and it seems like Queensland’s constitution is a massive rabbit-hole of deceit.

Australia Acts

13  Amendment of Constitution Act of Queensland

             (1)  The Constitution Act 1867‑1978 of the State of Queensland is in this section referred to as the Principal Act.

             (2)  Section 11A of the Principal Act is amended in subsection (3):

                     (a)  by omitting from paragraph (a):

                              (i)  “and Signet”; and

                             (ii)  “constituted under Letters Patent under the Great Seal of the United Kingdom”; and

                     (b)  by omitting from paragraph (b):

                              (i)  “and Signet”; and

                             (ii)  “whenever and so long as the office of Governor is vacant or the Governor is incapable of discharging the duties of administration or has departed from Queensland”.

             (3)  Section 11B of the Principal Act is amended:

                     (a)  by omitting “Governor to conform to instructions” and substituting “Definition of Royal Sign Manual”;

                     (b)  by omitting subsection (1); and

                     (c)  by omitting from subsection (2):

                              (i)  “(2)”;

                             (ii)  “this section and in”; and

                            (iii)  “and the expression ‘Signet’ means the seal commonly used for the sign manual of the Sovereign or the seal with which documents are sealed by the Secretary of State in the United Kingdom on behalf of the Sovereign”.

             (4)  Section 14 of the Principal Act is amended in subsection (2) by omitting “, subject to his performing his duty prescribed by section 11B,”.