Before I get to the guts of the matter, I want to point out a few, seemingly unrelated points, but they are important background. If you are really pressed for time, or want some convincing first that this is worth reading, just scroll down to the 3rd and 4th diagrams.
I recommend you read carefully, scratch your head in confusion, don’t push yourself too hard trying to understand, but instead consider saving or bookmarking this text and coming back in a week and reading it again. There has been a systematic 20-year campaign constructing a house of mirrors and deception, nothing is what it seems. It takes time for the brain to untangle, one read is not enough for this information to sink in.
Importance of the Flag
The Aboriginal Flag has been proudly adopted by mob, has been used as a symbol of our united struggle, and has flown in protests and also from the Aboriginal Sovereign Embassy. It is our flag, the people have adopted it wholeheartedly.
The Torres Strait Islander flag is newer, and has been treated the same way by the Australian Govt. There are a few differences, but for simplicity I will restrict discussion mostly to the Aboriginal flag only (no disrespect intended for Torres Strait Islanders).
Keep in mind here, a flag is a symbol of a Nation. By Aboriginal peoples adopting the flag, it could be construed that they are identifying themselves as one Nation, under one law – as opposed to being many, separate, self-determining Nations. Our adoption of the Aboriginal flag (which is a symbol of our unity in our fight) is being exploited which I will discuss later.
The Aboriginal Flag and the Torres Strait Islander flag were entered into the Flags Act by proclamation in 1995. They are commonly flown alongside the State flags and the Australian flag on Government buildings.
Why does the Government fly these flags, while simultaneously denying recognition of Aboriginal Sovereignty?
I believe it is because they are preparing for the Aboriginal Nation and the Torres Strait Islander Nation to join their Federation of Australia.
What is Federalism
Federalism is a form of Treaty, and can involve Sovereign parties.
From wikipedia…
The terms ‘federalism’ and ‘confederalism’ both have a root in the Latin word foedus, meaning “treaty, pact or covenant.”
I was not at the Constitutional reform dialogs, but I am guessing they would have played a video about the history of the Constitution, and how Australia is a Federation. And delegates would have been sitting there like bored school kids, wondering when they going to get on with it and start talking Treaty business, probably not realising the significance of the video content.
The Referendum Council put this information about Federalism in a video so that later, they can prove prior and informed consent, because they explained to everyone what Federalism is. The video will be used as evidence later on when we realise we have been duped.
Federalism is a power sharing agreement. It has a central (federal) government and a number of regional governments. The regional governments are subordinate to the federal government (eg. Australia the federal govt can override the member States). These subordinate ‘regional’ governments do not necessarily need a land base, (side note I think the federal govt might need a land base, might be why they made the A.C.T.?).
In contrast, a confederation is similar, except the federal government is subordinate to the regional governments (eg. the European Union, the member States have Sovereignty. Canada is also a Confederation).
The important things to note are;
- that a Federation is a power-sharing pool;
- the powers sharing details are set out in the Constitution/s;
- and that in a Federation, the states are subordinate to the Federal Government.
Also note that Australia is a constitutional monarchy, the authority from the federal government and each state comes from the Crown. That’s why there are titles of Queen of Australia, Queen of New South Wales, Queen of Queensland etc., and corresponding Governor-General and Governors of each state who represent the Crown.
Uluru Statement is a request to become a new State
It is a request to join in, to “take our rightful place”. A request to have a Voice. Sometimes they go bold – Kevin Rudd in a tweet called it “a request for shared Sovereignty”. Is it just really just another toothless advisory board as some say?
No, it is far more dangerous. Remember – a Federation is a power-sharing pool. The Uluru Statement is a request for Federation membership. It is a request to share whatever powers we have (Sovereign powers!) with the Federation. In this power sharing agreement, we accept a consultative voice and Australian citizenship in exchange for our Sovereignty!
The Voice will be a seventh state, not a third chamber.
Enshrinement of the voice is also a Treaty, it is comparable to the reunification of West Germany with East Germany. Makarrata is not a Treaty, it is a post-Treaty negotiation framework.
And worse, they may have already stitched up a case that we already said ‘yes’ to this skulduggery.
Earlier I pointed out that because we are under one Aboriginal flag, that it could be construed that we are under one law (and also a second law and flag for Torres Strait Islanders). One nation, one Aboriginal State that can become a member of the Federation. If we are under one law, then Australia can argue that does not need to consult with each of our original sovereign nations, but merely with the “Aboriginal Nation”. Also, (as far as I know) we don’t have a written constitution that goes with the flag, so they could say we have not made it clear where our power lies. This can be manipulated by them going to their own hand-picked leaders, Government funded bodies, Land Councils etc. They will argue they didn’t have to choose representatives for every Sovereign Nation at the Yulara Convention, because we are under one Aboriginal flag.
The Government have been flying our flag on their buildings next to the other flags of the Federation, and we never objected. Flying the flags in such a manner is a declaration of intent. We never objected to this declaration. They can use this to later argue that we consented to our flag being used in this manner, and perhaps that we consent to become a State of the Federation.
At the Referendum Council dialogues they showed a video explaining the federal structure of Australia. So consider yourself informed.
The Uluru Statement itself was a document of request to join the Federation, or consent.
It’s time to educate about this grave danger, consider getting our flags off their buildings, get together to write an Emergency Continental Aboriginal Confederate Constitution based on the Continental law to pair with the flag, to preempt the Voice proposal and to protect each Sovereign nations inherent right to choose their own path, assert our individual Nations’ identities to deny them a case of consent. Say no to flying the flag on the Harbour Bridge next to the Australian flag – it sends the wrong message.
They refuse to release draft wording of the Voice, because we would catch on immediately merely by knowing which section the changes would fall under.
Also, note this on Page 37 of Referendum council report 2017…
“The Council recommends an extra-constitutional statement of recognition. “
I believe this “extra-constitutional statement” is actually the Constitution of the new Aboriginal Torres Strait Islander State. It needs to be written first before joining the Federation.
Was Recognise designed to fail?
Consider the possibility that Recognise was a psyop (psychological operation) to make everyone think so much about recognition, that they are blinded as to the true goal that has always been Federalism. In Psychology and sales negotiation this is called Anchoring. You think of Uluru Statement as being different from Recognise, a “substantive recognition” because they keep repeating that phrase, and you hear this on the back of the huge multi-year “Recognise” campaign. You are anchored; that is you are framing post-Yulara proposals in comparison to recognise/recognition campaigns and committees and such.
recognition… recognise… recognition… substantive recognition… constitutional recognition… etc.
5 years of brainwashing. The Australian public are being brainwashed by repetition. It struck me as odd that even today they keep referencing “recognition”, when they supposedly have so many problems with that particular word.
It is to distract you from seeing the truth.
Some noted the lack of Aboriginal Flags at Recognise rallies. It was openly supported by banks and mining companies. It looked too flashy and expensive to be grassroots. The “bad look” was no failure, they are not stupid. It was by design. They don’t spend millions of dollars on consultants to make campaigns so transparently flawed.
Now you are anchored with the overtly fake Recognise campaign, along comes post-Yulara “Voice Treaty Truth”. Low-key, trying hard to emulate a grassroots movement, yet campaigners have no problem flying all around the country and getting spots on Q&A. Seems an improvement over Recognise.
The Recognise campaign’s real purpose was to make the Voice proposal look good, and to disorient and anchor certain preconceptions that will make it difficult to see the Voice for what it really is – a seventh state.
“Recognise” was also not what it seems
There was a lot of concern during the Recognise campaign amongst the grassroots Aboriginal community. But I think much of this was based on deliberate misinformation.
One of the biggest concerns about Recognise was that the amendments to the race power could have immediate adverse affects on Aboriginal Sovereignty. This argument is presented in the following table which was doing rounds on social media at the time;
But changing the race power is inconsequential, because the Crown does not have the authority to pass laws for Aboriginal peoples. The Crown can only get this authority via consent in the form of an International agreement/Treaty.
Consider this: Australia can change it’s constitution to claim it has a power to pass laws for Mexican citizens, but this would have no effect because the Crown – the source of authority – has no authority over Mexican citizens*. The claim of power would conflict with international law. Whomever currently has the power to make laws for Mexican citizens (presumably the Mexican Government) would still need to make a formal agreement to transfer that authority, a Treaty.
* As long as the Mexican citizen is in Mexican Territory doing their thing under Mexican law. Mexican tourists in Australia would be under a visa.
The exact same applies for Aboriginal citizens of their respective nations as it would for Mexican citizens. Treaty is still required. There is no getting around this.
Planting this false information during Recognise was a deliberate tactic, so that in the next, post-Yulara iteration, they can propose leaving the race power unchanged. This is intended to disarm the Indigenous community who think “oh look it must be ok now, because they are not making a head of power that directly targets us and can override our consent”.
Section 51 xxxii is merely an itemisation of a power. Source of authority, “in the name of”, is what matters. The Crown simply has no power to pass laws for citizens of Aboriginal Nations, itemising a power without authority to back it up makes a dead letter.
The 1967 referendum also changed nothing for “the Aboriginal race”, it merely modified a itemisation of a dead power, dead because it still has no authority behind it. It only ‘works’ because Australia denies Aboriginal Sovereignty.
What was the real danger of “Recognise”?
The true danger of “recognition” was the modification to the preamble.
They often say something along the lines of “adding or modifying a Constitutional preamble has no legislative effect”, which is true. But that doesn’t mean changing it is inconsequential. What they don’t tell you is that it would change what happens on separation from the monarchy to form a republic.
On the formation of a republic, the Crown will have to hand-back to the rightful Sovereigns. If Aboriginal and Torres Strait Islanders are mentioned in the Australian Constitution preamble and have not written their own Aboriginal Constitution, the Australian Constitution is where the hand-back will go. If Aboriginal and Torres Strait Islanders have joined into the Federation via the Voice to Parliament – the “Aboriginal Constitution” has been written for them by stealth and locked in as a new, Aboriginal, landless State of the Federation.
The preamble matters. It declares the basis of power and ideals that the whole Constitution hangs on. Just look at preambles of different Constitutions around the world and you will see what I mean. Eg. the most famous, the USA – “We the People” is a declaration that the basis of authority lies in the People.
This is the reason why the states have quietly added recognition in their constitution preambles. They have to recognise the authority, the source of power to be able to receive and wield it later when it is ‘activated’.
Special Words and phrases that probably don’t mean what you think they mean
“Reconciliation”
Dictionary definitions of Reconciliation.
https://en.oxforddictionaries.com/definition/reconciliation
Reconciliation
NOUN
1. The restoration of friendly relations.
2. The action of making one view or belief compatible with another.
3. The action of making financial accounts consistent; harmonization.
Everyone thinks it’s definition 1, but it can’t be because there was never friendly relations to begin with. They could have called it “Conciliation” but they didn’t.
Definition 3 is a derivative of 2.
2, in other words, is to get the story straight. Australia is built on a tower of lies and they want to get their story consistent. This is the true meaning!
Referendum Council 2017 Weasel words
The Referendum Council formulated “Guiding Principles” against which they can evaluate various options. When you can see the grand scheme they are running, you can see these are formulated in order to push their own pre-chosen objective. One in particular deserves a special mention.
1. Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.
Diminish just means “to make less”. They are correct – Federalism, taking Aboriginal Sovereignty and sharing it with the Federation does not make it less. It doesn’t cede it either, which is another term they like to throw around when they say that the proposal wont cede Sovereignty. It is not ceding Sovereignty because Aboriginal people will still hold it through sharing. To say “does not diminish” is technically correct but grossly and deliberately misleading.
contribute to a more unified and reconciled nation
This was not in the guiding principals, but from another section. This word sounds nice, but cynically, it just means they want us all unified so they can dominate us in our unity.
The past leads to the present…
If you trace back events to Mabo 2, you can see how they have been busily putting all the pieces in place ready for Aboriginal federation. Might talk about that in my next post.
Hi Jessica. Thank you for writing this informative article as the whole issue has been confusing for me. May I suggest you can get a face book plug in for your word press site that allows you to share pages of face book, I have found it very useful in promoting my own site as it gives you the ability to post your writings directly onto face book, Ps I am not a sales man for word press or for face book. Good Luck Diarmuid Hannigan
Hi Diarmuid, I don’t use facebook so much, but I’ll give it a try, thanks for the tip.
There are some very serious errors in this document, showing that the author has no understanding of the structure of a federation, the effect of the 1967 referendum, or the way Australian laws applied to Aboriginal people.
(1) Misunderstanding the structure of a federation, saying that “…the federal government has ultimate power.”
Legislative power is divided between the States and the Commonwealth, and both are sovereign over their own sphere. There are only specific enumerated powers delegated to the Commonwealth, and the residue remains with the States, which far exceeds the federal grants in number. The Commonwealth has no source of power to infringe upon the residual powers of the States, to do so would be ultra vires. Commonwealth laws are only superior within the sphere of concurrent powers, those shared by the Commonwealth and the States, under section 109. Sections 106, 107, 108, and 118 guarantee the sovereignty of the States.
(2) “…changing the race power is inconsequential, because the Crown does not have the authority to pass laws for Aboriginal peoples…”
This shows a complete misunderstanding of the effect of the 1967 referendum. It wasn’t to give power to the Crown to pass laws for Aboriginal peoples, that already long existed, it was to turn a residual power of the States into a concurrent power shared by the Commonwealth and the States. Prior to it the States solely had that power.
(3) The question of jurisdiction was settled in R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSWSupC 35. The author is writing on the premise that Aboriginal sovereignty exists, which has been consistently rejected by the courts.
Coe v Commonwealth of Australia [1979] HCA 68; 53 ALJR 403: “The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.”
Kenna, J. later stated in Mabo v Queensland (No.2) (1992) 175 CLR 1: “There is no indication in Mabo (No.1) that the High Court is prepared to recognize Aboriginal sovereignty, the High Court is unable to inquire into the actual acquisition of sovereignty.” and in Walker v NSW (1994) 126 ALR 321: “The Court confirmed received doctrine on sovereignty, putting the matter beyond the reach of review in domestic Australian courts.”
It was also held in Walker v NSW (1994) 126 ALR 321 that the notion of parliamentary sovereignty means that Australian parliaments can pass laws that apply to Aboriginal people, and have the legislative competence to regulate or affect the rights of Aboriginal people, as equally as they do regarding any other race.
What the author shows is basically a denial of reality. Hey I don’t like it any more than the author, but my personal preferences have no bearing on this reality whatsoever. To think that one can simply ignore reality and it ceases to exist is quite delusional.
2) and 3) go back to the same question. How did the Crown acquire sovereignty? There’s no Treaty, and Australia was not a terra nullius. The question of the Crown’s acquisition of sovereignty is not yet settled. The High Court itself acts in the right of the Crown. The High Court could rule they have jurisdiction over the moon – it doesn’t make it so. The High Court itself sits on sand, not solid rock.
It is International law which matters here – not a walled-garden English interpretation of it. International law includes the UN Charter which upholds the principle of self-determination of peoples. Australia is in violation of this by being a colonial occupation over original polities (descendants of original inhabitants) who have yet to exercise their right to freely determine their political status as per UN General Assembly Resolution 1514. They retain that right and status, until that right has been exercised (UN General Assembly Resolution 2625).
It is the walled-garden which is delusional. Australia’s foundations are in violation of the UN Charter.
1) re Federation – yes fair enough, the label on that diagram was wrong. The main premise is that a federation is a power-sharing arrangement to which the Uluru Statement requests to accede to as a non-territorial, asymmetrical state. Asymmetrical federalism and non-territorial federalism are the new kids on the block used to solve these kind of political “problems”.
Federalism of “the Voice” as a non-territorial, asymmetrical state will be an exercise of the right of determination of political status of the occupied polities and will satisfy the requirements of UN General Assembly Resolution 1514. Politicians and their donors will be the ultimate winners.
I wrote this piece a few years ago, and I would put it differently if I wrote it today.
Thanks for the comment and the shares.
Thank you for your response Jessica Savage.
Firstly I was surprised that you would chose a strawman/red herring/moralistic fallacy-type approach to address the decisions of the High Court, saying: “The High Court could rule they have jurisdiction over the moon – it doesn’t make it so…” You would of course, quite logically, see that it DOES MAKE IT SO within the body of domestic law that exists in Australia and is enforced everyday, so the point is moot.
Once the High Court decides a point of law, the ratio is binding on every court in Australia, so your insistence that there is “no jurisdiction” can only draw, especially young teenagers reading this article, into inevitable trouble with police, with arguments that are also inevitably doomed to fail in the courts. That appears neither constructive nor intelligent, to someone who is deeply concerned with Aboriginal incarceration rates. I am all for the right to protest laws, but those drawn into activism by certain political interest groups need to be accurately aware of legal consequence, and not led to delude themselves that claiming “no jurisdiction” is actually a legitimate defence to charges, it most provably isn’t. The difference between a political argument, and a legal argument, should be clearly differentiated here.
(1) I think I should first address the significance of UN General Assembly (Otherwise known as the toothless tiger) resolutions and other agreements on the executive government and on domestic laws here. These agreements should not be taken as something binding within the domestic laws unless carried into effect by appropriate legislation. The Bangalore Principles state that International law (whether human rights norms or otherwise) is not, in most common law countries. part of domestic law, and does not become part of domestic law until Parliament so enacts or the judges (as another source of law-making) declare the norms thereby established to be part of domestic law.
In Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582, Barwick CJ with Gibbs and Stephen JJ held that the Charter is not binding on persons within Australia as part of the municipal law and neither the Charter nor the Resolution of the Security Council had been carried into effect by legislation in Australia, hence they could not be relied upon to justify executive acts or resist an injunction to restrain an excess of executive power. “…not all legislative approval of treaties or other obligations entered into by the Executive renders the treaty binding upon individuals within Australia as part of the law of the Commonwealth, or creates justiciable rights for individuals… .. simply states that the Charter is “approved”, something insufficient to render the Charter binding on individuals in Australia.” (See also Koowarta (at 224) Dietrich v The Queen (at 66-67) Joosse v ASIC, Minister for Foreign Affairs v Magno.)
Even when brought into law with appropriate legislation, the principle of Parliamentary Supremacy is not usurped. In Momcilovic v The Queen & Ors [2011] HCA 34 limitations were imposed on any courts broad interpretation of the Victorian Charter of Human Rights and Responsibilities Act 2006. The High Court held that Victoria’s Charter of Human Rights protects fundamental human rights while maintaining parliamentary sovereignty. By a majority of 6–1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent.
The principle of national sovereignty is a very firm rock indeed when it comes to international affairs, and this sovereignty here resides with the parliaments, according to the UN themselves. So ultimately, this “International law” premise as you have described, is as inarguable as the “no jurisdiction” premise in Australian law, which I will now extrapolate on.
(2) Regarding the acquisition of Aboriginal sovereignty, the court has numerous times relied on the principle stated by Gibbs J. in New South Wales v. The Commonwealth (1975) 135 CLR, at p 388, that: “The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.” and that the principle “…precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown’s Dominions.” This passage was cited in p 31 of Mabo (No. 2) (1992) 175 CLR 1. The High Court’s single source of authority, and the extent of the parameters of its jurisdiction are derived solely from the Crown itself, therefore it had no authority or jurisdiction to hear challenges to the legitimacy of the Crown’s jurisdiction.
According to the judgment in R v Wedge [1976] 1 NSWLR 581, English law recognises three methods of acquisition of foreign land – conquest, cessation and settlement. Settlement occurs when a colony is founded in a land in which there are no settled inhabitants or a settled system of law. In such a case, English law is immediately in force in the new settled colony, and only those laws are applicable. According to the express authority of the Privy Council in Cooper v Stuart (1889) 14 App Cas 286, New South Wales was acquired by settlement, and the English law was immediately transferred to it and therefore applied to all the inhabitants. The Colonial Office treated Australia, for the purposes of its acquisition and the application of English law, as a settled colony, that is, one uninhabited by a recognised sovereign or by a people with recognisable institutions and laws. The Aborigines were treated as individuals, not as groups or communities.
In Mabo v Queensland (No.2) (1992) 175 CLR 1, the doctrine of terra nullius was finally overturned. If Australia were truly terra nullius, the Crown’s so-termed “radical title” would become absolute beneficial title of the Crown. However, since Australia was not terra nullius, radical title did not imply full beneficial ownership, it only conferred sovereignty, and sovereignty did not extinguish native title by default. Therefore, while the sovereignty remained with the Crown, the beneficial ownership or title remained with the original inhabitants.
But Native title itself only confers what is directed by the Crown, being the body politic of the people as a collective, and it depends on the common law of this body politic for its existence. It can even be extinguished by subsequent legislation, as Brennan J said (at 73): “Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign’s territory. It follows that, on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power.” Mason CJ and McHugh J agreed with the reasons for judgment of Brennan J. Deane and Gaudron JJ said that, like other legal rights, “the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation”.(at 61)
In Western Australia v The Commonwealth [1995] HCA 47 (Native Title Act Case): “After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally … provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel – for example, a grant by the Crown of a parcel of land in fee simple – provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act.”
In Wik v Queensland [1996] HCA 40 (at 519) “No party contested the determination in Mabo [No 2] that upon annexation of the Australian territory, sovereignty over every part of Australia passed to the Crown which thereupon acquired a radical title in respect of all such land. There was no contest that the Crown, as Sovereign, had the power, in accordance with law, to deal with land in every part of Australia. To the extent that it did so in a way inconsistent with Aboriginal law and custom or native title, the latter would, to that extent, be liable to extinguishment or impairment. (at 226) “The proposition that it is the radical title of the Crown with which we are concerned and that, on the expiration or other termination of a pastoral lease, it is still the radical title that must be considered in relation to native title rights, does not minimise the sovereignty of the Crown. Nor does it undermine the principle that native title rights depend on their recognition by the common law. That recognition carries with it the power to extinguish those rights.”
There is many historic reference and case law examples from the early colonies referring to the matter of jurisdiction regarding Aboriginal people. This compilation begins around 1790’s. https://freemandelusion.wordpress.com/2020/06/25/australian-law-as-applied-to-aborigines/
Look forward to your response, cheers
Robert Sudy
You accuse me of building a strawman by making one yourself.
Where did I claim that the High Court has no jurisdiction?
The Crown claims sovereignty over a territory. It is not any action of the Crown’s courts in upholding that claim that make that claim valid. The claim is valid if it is accepted under customary international law.
At the moment, the Crown claim of sovereignty over Australia is accepted in the international community as being valid. However, this claim is vulnerable to challenge.
My comment is an observation as according to law, both domestic and international law. You clearly brushed all references to law aside, when you said
“…2) and 3) go back to the same question. How did the Crown acquire sovereignty? There’s no Treaty, and Australia was not a terra nullius. The question of the Crown’s acquisition of sovereignty is not yet settled. The High Court itself acts in the right of the Crown. The High Court could rule they have jurisdiction over the moon – it doesn’t make it so. The High Court itself sits on sand, not solid rock.”
Your comment itself shows that your belief that the High Court has no jurisdiction, despite the fact all these contentions you point to ARE most provably settled in law, and the ratio IS binding on all the courts. It matters not if you believe they don’t exist, they are proven to exist, and the laws to be enforceable, every single day. After all, that is probably the rawest meaning of sovereignty, it is plenary power.
As you admit yourself: “At the moment, the Crown claim of sovereignty over Australia is accepted in the international community as being valid…” And the reasons for this is simple. You nearly captured it when you said: “The claim is valid if it is accepted under customary international law…”
Which it was, at that time in history every nation had the right of conquest, they could legally invade and occupy, even commit genocide, until very recently. The right of conquest was a legitimate right of ownership to land under international law, recognized after immediate possession with force of arms. A war of aggression was only first codified in the Nuremberg Principles in 1947, and then further defined by the United Nations General Assembly Resolution 3314 in 1974.
This does not have a retrospective effect. As Robert Anton Wilson once said… “Every border in Europe, is an arbitrary line, where two groups of bandits grew tired of fighting, and decided to rest for a while.” If, for arguments sake, it was retrospective, then it would follow that most nations that make up the UN would themselves cease to exist.
I understand completely you have political beliefs regarding the acquisition of Aboriginal sovereignty, but they do not make up the law right now do they. As you admit, not on an international level, (and despite you desperately trying to avoid the citations given) not on a domestic level either. This takes me back to my point in the previous comment, the difference between a political argument, and a legal argument.
The assertion of Aboriginal sovereignty is a political aspiration, and not a legal argument.
“Your comment itself shows that your belief that the High Court has no jurisdiction”
Bullshit. Don’t tell me what I believe. I accept that the High Court has; at minimum, jurisdiction over the Australian people. I never said they have “no jurisdiction”.
In any case, the right of conquest is not a right that Australia acting in the right of the Crown has invoked.The claim is “settlement”, not conquest. Laws on conquest are irrelevant unless Australia/Crown claims conquest.
It seems you are in denial of your own words here. Your emotional “Don’t tell me what I believe.” is merely a pointless outburst when the notion is sourced from your own comments themselves, not my own imaginings.
The whole basis of your article is based in the rejection of the Crown’s acquisition of sovereignty, and its resulting *jurisdiction*… on the premise “the Crown does not have the authority (or jurisdiction) to pass laws for Aboriginal peoples, and can only get this jurisdiction via consent in the form of a treaty.”
I have shown in verifiable precedent why you are mistaken, and your response was simply: “The High Court could rule they have jurisdiction over the moon – it doesn’t make it so…” which further implies that you simply disregard these HCA precedents as in your view they lack jurisdiction.
I notice however, that it has now become “I accept that the High Court has; at minimum, jurisdiction over the Australian people.” so maybe you should revisit your previous assertions, and clarify them too.
You are correct, the right of conquest is not a right that the Crown relies on for the acquisition of sovereignty, but the point is inconsequential to international law for the same reasons, it was consistent with international law at the time. Even if conquest was relied on, it still doesn’t alter the sovereignty acquired, as it is still gained by occupation. In fact, the expression “terra nullius” itself means little more than “uninhabited” in the sense that it was at the time open to occupation. (See Phillips, T.S. v Aboriginal Development Commission [1987] FCA 170 at 79, citing the advisory opinion of the International Court of Justice in the Western Sahara Case, I.C.J. Reports 1975 p3 at pp38-9) Once that occupation has been established, whether by settlement or conquest, it is consequently recognised by international law.
You quoted me, with quotation marks.
Do you know the purpose of quotation marks when attributing what someone said?
If I quoted someone with something they did not actually say, I’d be embarrassed. If they called me out on it, I would apologise or possibly just walk away with my tail between my legs.
I am not so intellectually bankrupt that I would lecture that person on what they believe in order to cover my own mistake.
But you keep digging.
And you have the audacity to insist I address your copy-paste strawman arguments.
>>”The whole basis of your article is based in the rejection of the Crown’s acquisition of sovereignty,”
No it does not. Even if the Crown validly acquired sovereignty, that would not prevent federalism between the Commonwealth and a First Nations state. This is another strawman.
Misquoting someone is pretty low; but can happen accidentally at times. Gas-lighting your way out of it is outright intellectual dishonesty. You are not welcome here anymore, go find another bridge to hide under.
I should also address your “I accept that the High Court has; at minimum, jurisdiction over the Australian people.” though, in the slight chance you might be considering that Aboriginal people are not “Australian people” which is another popular myth. The laws apply to ALL people equally within a territory, not just a certain group. Walker v NSW (1994) 126 ALR 321:
“The proposition must be rejected. It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10). The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters (Bennion, Statutory Interpretation, 2nd ed. (1992) at 255). The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting (Re Sawers; ex parte Blain (1879) 12 Ch D 522 at 526; Gold Star Publications Ltd. v. Director of Public Prosecutions (1981) 1 WLR 732 at 734). And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose (Bennion, op. cit. at 260). The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.”
Freeman Delusion is just another lawyer troll they slipped into Australia from Europe during the initial invasion. They are the ones who come from the forest and steal babies so as they can have a feed. They lurk around the wilderness of the internet paid by the IPA to annoy and frustrate.