I’m going to explore this question of who is Australia’s head of State using Hobbes’ Leviathan concept of a Commonwealth.

The Hobbesian concept of a Commonwealth

In terms of the Hobbesian concept of a commonwealth, see the image below;

This is where the term ‘head of state’ comes from. You have a king and a kingdom. It’s a one-to-one relationship; one king for one kingdom, and one kingdom for one king. The King is the head, his subjects make up the body – or the body politic. The King is a representative figurehead for the subjects, he is accountable to them, they pledge allegiance to him, and together they rule over the kingdom.

This is a natural development from original absolute monarchy type arrangements like Pharaohs or emperors. It is a natural development – because absolute dictatorship will not work in the long term. Eventually an absolute ruler will come to power with weaknesses which will be exploited by the ladder-climbers who surround him – these ladder climbers will eventually become the men behind the curtains who use their influence to become de-facto rulers. The figurehead ruler is always looking behind his shoulder for those who envy his position; if he wants to stay in his position he needs to be good at playing the game of appeasing those directly around him. Eventually the absolute ruler becomes subject to the wishes and demands to an increasingly larger number of his subjects through the fear and threat of popular revolution, and he becomes a mere figurehead with a lot of discretionary power that is not often exercised. He is no longer a dictator, but a symbol. A symbolic head on the back of a coin. The true power is then held by all his horses and all his men (the political elite), or alternatively by all of his subjects depending on their inclination for revolution (hello France).

As for the discretionary power of the Crown in practice – if you watch the Netflix series The Crown – you can see how this plays out in a constitutional monarchy. Queen Elizabeth II may have a lot of power on paper, but she can’t do whatever she wants – far from it. It is the political elite ladder-climbers who manipulate from behind the curtains.

The Magna Carta

Under the Hobbesian concept, this head of the commonwealth has a social contract with his subjects and together they hold power over the land (see first image). This social contract concept ties in with the older Magna Carta.

Australia has a special relationship with the Magna Carta. The Magna Carta conjures up an implied social contract between the Australian people and the British Crown. Without this contract dragged out of the cellar – from the subjects’ perspective, Australia is a benevolent penal colony under absolute rule; a constitutional monarchy where the constitution is not created from the authority of popular legitimacy, and one where the Crown has little to no contractual obligations to it’s subjects.

A related point – why doesn’t Australia have a Bill of Rights? Because that would place obligations on some party, and it is not clear in Australia’s case who that party is – whether it be the foreign Crown or the squatter Parliament with no autochthony. Also related – why is Australia one of the few countries with compulsory voting with penalty of fine? Both these points relate because there is no contract between the Australian people and it’s government. There is no consent of the governed; even for the settlers (and certainly not for the colonially occupied).

The ironic thing is that the Magna Carta has not even been paid lip-service in it’s application to Aboriginal and Torres Strait Islander people. It is laughable to think that there was any such contract made or honored between the native peoples and the imposed Crown.

What is Elizabeth II the Queen of?

Australian citizenship as a concept arose from the Nationality and Citizenship Act 1948. A few years later in 1953, Queen Elizabeth II was coronated as the Queen of her domains. So at the time or her coronation, Australians; or British Subjects resident in the Australian colonial states – were simultaneously both British Subjects and fresh Australian Citizens.

The concept of Australians being British subjects was dropped with the Australian Citizenship (Amendment) Act 1984, a couple of years before the Australia Acts were passed.

So in 1953, one Queen was coronated over her single Hobbesian ‘Queendom’; Queen of her British subjects all around the world in the various dominions. What happens if a coronation were to happen now – with Australians supposedly not being British subjects anymore?

The colonial British have warped this concept of a Commonwealth to be more inline with the original leviathan of mythology in the form of a multi-headed beast. Each separate dominion has effectively spawned a new cloned head of the British Empire. There were originally six dominions from the Imperial Conference of 1926 – Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State. The single kingdom made up of dominions, with one Crown is now a complex arrangement of many cloned, crowned heads.

Australia is also separately described as a commonwealth within itself – with six original states. Along with the new proposed ‘First Nations’ state – will be a seven-headed Hobbesian leviathan – just like mythological seven-headed beasts of the sea. This is even represented on the Australian flag in the Commonwealth Star floating on a British naval ensign – like the seven-headed sea-monster that intends to swallow us up.

If Australia is a Commonwealth in it’s own right – as it claims to be since 1901 – then it should have it’s own head of that Commonwealth. Who, or what position is that head? What is the head of the colonial beast?

An awkward situation

Back to the question asked earlier – what happens if a coronation were to happen now; with Australians not being British subjects anymore? Would her successor need to travel around and have multiple coronations to accommodate the now separate, sovereign “kingdoms”?

Australians are not supposed to be British subjects anymore – British citizens with dual Australian citizenship are not even allowed to stand in Parliament under the way they apply section 44 of the constitution since 2017 (it is no coincidence the dual citizenship saga began shortly after the Uluru Statement was issued – they are working on a pre-planned timeline). The land is not supposed to be under the authority of the British crown anymore – but under the Australian people. Since 1986, it really doesn’t make sense for a foreigner to be crowned the King/Queen of Australia.

There’s another reason why it does not make sense. The Uluru Statement asserts spiritual sovereignty. For that assertion to be properly respected – the Archbishop of Canterbury cannot use his spiritual power to coronate the successor ‘Queen of Australia’. For the archbishop to do so would be in flagrant denial of the spiritual sovereignty declared at Yulara/Uluru. The spiritual sovereigns of the land must be the ones to coronate the King or Queen of Australia. This means Aboriginal people will need to coronate Charles as the King of Australia – an embarrassing and comical proposition. This is why there is such a urgency to get this sorted before the successor is coronated – so give or take – a year or two after Elizabeth II passes.

Who is the Head of State of Australia?

My answer is – the head of state of Australia is a purely abstract and symbolic head called the “Queen of Australia”. Queen Elizabeth II is only acting in this position – but does not own the position. She has NEVER been coronated in this role – she was coronated over her British subjects who reside around the world including in the Australian states.

This newer, abstract, symbolic Australian Crown is separate and distinct to the British Crown. It has it’s own set of autochthonous regalia (eg. the coat of arms with kangaroo and emu). Australia is standing with the back-foot on the British Crown and the forward-walking foot on the Australian Crown – but the weight is still on the leg of the British Crown. Right now it is attempting to shift that weight onto the forward leg, but can’t do so without first fixing the “Aboriginal problem”.

If the Hobbesian head of state; or Australian Crown has obligations to the Australian people – who, or what position holds these obligations?

The Governor General is not the Head of State – it is merely a local proxy for the colonial Crown, with no direct obligation to the Australian people.

Parliament – No one in parliament has an obligation to the Australian people either – their oath is to “Her Majesty Queen Victoria, Her heirs and successors according to law.” This includes the Prime Minister. The Prime Minister isn’t even a specified role in the Constitution Act (1901).

The British Crown – continues to have an obligation to it’s British subjects through the Magna Carta and other conventions. But the Crown is administratively detached since the Australia Acts (1986), so these obligations are meaningless and not accountable or enforceable (case in point the “Royal” Commission into Aboriginal Deaths in Custody began AFTER the Australia Acts and was effectively ignored for decades). Furthermore – Australians aren’t supposed to be British subjects anymore. No one can explain how Aboriginal and Torres Strait Islanders became British subjects, and/or why obligations under the Magna Carta have been completely ignored in the Aboriginal context despite Australia bragging that it is somehow a foundational document.

The answer to the question of what is the “Queen of Australia” – is a three-way interplay (with a pivot point).

The Australian parliament and institutions (as British crown creations under their written constitutions) are accountable to Queen Victoria and her successors. Queen Victoria and her successors in-turn have obligations to their subjects via the Magna Carta. So Parliament and Australian institutions ARE accountable (albeit indirectly) to the Australian people – via the British Crown as proxy, and with the Magna Carta filling in the missing obligational link.

The “Queen of Australia” as an entity with obligations to it’s subjects – is a representation of this three-pronged entity holding a collective social contract with the Australian people. It’s not a standard “Crown”. It is the British Crown + Australian Parliament and Institutions + the Magna Carta. It is an abstraction.

The Pivot Point

Looking at this abstract “Queen of Australia” as a Hobbesian Head of State, it must also be an abstraction representing not just obligation and social contract – but also the head/personality and the authority of the Australian body polity and of the Australian lands.

The Australian body polity itself does not (yet) include Aboriginal and Torres Strait Islander peoples, thus it does not have true legitimacy of the land. However if the native people agree that they are part of the Australian body politic – the abstraction of the Queen of Australia will in turn inherit their autochthonous power via state “enshrinement” and recognition of that spiritual connection with the land.

In the Uluru Statement it says Aboriginal sovereignty coexists with the sovereignty of the crown. The question is – which crown? I think it means the “Queen of Australia”, or the Head of State, which itself is an ambiguous and pivoting abstraction.

The current position is that the “Queen of Australia” is – the British Crown + Parliament and Aus institutions + the Magna Carta.

The “Queen of Australia” will be pivoted (or the weight of the leg shifted) to become – Aboriginal sovereignty + Parliament and Aus institutions + Magna Carta/Bill of Rights. Aboriginal sovereignty will provide the initial symbolic spark to light the republic fire – and like Cathy Freeman lighting the Olympic cauldron – once lit it will no longer be needed. Aboriginal sovereignty will be neutered and assimilated via outnumbering and mainstreaming into the Australian body politic – which will inevitably happen because the offer made at Yulara was so pathetically weak. The final planned result being Australian peoples’ sovereignty + Parliament and Aus institutions + Bill of Rights. Australia’s institutions can mostly go about their ways, having swapped symbolic authoritative figureheads and become actors in their own authority. The end result looks like a proper, modern democratic republic like France or Germany.

The new head of State will thus be an Australian person chosen by the Australian people, representing the Australian people. The mechanics of how this is decided doesn’t really matter as long as the people are satisfied. Having an Australian Head of State – as an actual person in an actual role – is probably the number one selling point used by the republic campaign.

One good thing about this is – Aboriginal and Torres Strait Islander people will finally have basic human rights protected. But it is extremely deceptive, and will legitimise and brush under the carpet the massive theft and genocide that has happened.

Years ago, I read this article by Mark Brett and I had no idea what he was talking about. Now with some basic Catholic historical context I’m going to share in this post – I finally understood what he is hinting at throughout the article and when he writes in the conclusion –

“The First Nations cannot, and should not, ever be absorbed into a single nation-state.”

When I first read this, I was scratching my head here, because non-territorial federalism of First Nations looks exactly like absorption into the nation-state. I also remember hearing claims (but I don’t remember where exactly) that the proposal ‘will not subordinate’ First Nations. How is it not subordination to fall under Parliamentary supremacy? But now I understand – we will remain separate in the same way that the church and state are separate. And it’s true, technically we won’t be subordinate. Absorption and subordination will be prevented, ironically, using Catholic doctrine.

It’s not surprising that Catholic doctrine ended up in the Statement. Greg Craven – the former vice-chancellor of the Australian Catholic University who retired this year – has been active and influential in Australian constitutional matters for decades. The original idea of an Aboriginal representative body seems to have originated from both him and Noel Pearson. Uphold and Recognise, a think-tank which had a heavy influence over the the Uluru Statement package was co-founded by Damien Freeman, a lawyer at the Australian Catholic University

Examining the text

I’m going to break down some of the text of the Uluru Statement to show what sovereignty as a spiritual notion might mean by the authors. I will concentrate on these first two paragraphs;

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

Uluru Statement from the Heart

It’s widely known that part of this text (much of the second paragraph above) is drawn from a quote by Nicolas Bayona-ba-Meya in the Western Sahara International Court of Justice (ICJ) case. The original quote is from a third-person account (a submission made by Bayona-ba-Meya, a Congolese lawyer acting for Zaire) describing the connection that Sahrawi people have with their land. This submission was to the ICJ, and formed part of the subsequent ICJ advisory opinion. The court case itself was initiated by Morocco and Mauritania feuding over Sahrawi land. This ICJ advisory opinion was then drawn on by the Australian High Court in Mabo 2.

All up – it’s a third-person, third-hand account of Sahwawi peoples sacred connection with their land in Africa.

An opportunity was missed here to draw on a more direct account from many talented Aboriginal and Torres Strait Islander writers, poets, songwriters and storytellers to describe our connection to country and sovereignty in our own words. This assertion of sovereignty as a spiritual notion made on behalf of a single continent-wide collective of peoples falls short by not also including kinship connections that we hold with each other as individuals, connections of communities and places through songlines, and connectivity through shared experiences of colonialism. The borrowed quote sounds nice enough, but also contrived.

I believe this quote is in there because of the way it weaves together three key concepts; connection with the land, sovereignty and spirituality. There is a legalistic, hidden agenda behind this. The quote fills in a missing link.

The Uluru Statement text quoted above can be distilled into four main points.

1. An assertion being made – by people identifying themselves as being the descendants of the Aboriginal and Torres Strait Islander tribes.
2. These peoples assert an ongoing spiritual connection with the land.
3. This spiritual connection is described as “ownership of the soil” and as “sovereignty”
4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”.

Point 1 identifies the asserters as “colonial peoples” in line with the UN Declaration on the Granting of Independence to Colonial Countries and Peoples. They are the political communities that pre-date colonialism. They hold a “status separate and distinct” from the colonial occupation. They – and only they (also possibly only in their entirety) – can determine the status (independence) of the territory in question and lead to the decolonisation of “Australia”.

Points 2. these peoples assert an ongoing spiritual connection with the land; and 3. This spiritual connection is described as “ownership of the soil” and as “sovereignty” – are reinforced by borrowing Mr. Bayona-ba-Meya’s quote.

The next step once Aboriginal sovereignty is incorporated into the Australian federation is to fence-off Aboriginal sovereign power within the nation State so it is rendered ineffective. The stage is set in point 4. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown”

This has parallels with the concept of Papal spiritual power and Crown temporal power.

Spiritual vs Temporal power

In medieval times the Pope held both Spiritual and Temporal power. The basis of the Pope’s spiritual power is the direct connection the Pope has with God. The Pope also had massive influence in the real world – or temporal power.

Over time, much of the worldly, temporal power was delegated increasingly more from Church leaders to a coronated monarch. Church leaders would use their spiritual authority to coronate Kings with the blessing of God. Leaders of various churches still coronate monarchs today. Kings and Queens – the worldly, temporal sovereigns – are anointed by spiritual sovereigns, and derive temporal authority via mandate from the church.

In some countries today, the temporal authority of Kings and Queens is vested or partly vested in a nation state of people as a monarchy/democracy hybrid. The people are sovereign in that they hold temporal power, and the Crown acts as a figurehead representing the people. The spiritual power then sits parallel to the State in an official state religion.

The Archbishop of Canterbury coronated Australia’s colonial monarch. The Australian constitution itself was enacted by the “Crown of the United Kingdom of Great Britain and Ireland” with the advice and consent of the “Lords Spiritual and Temporal”. The English equivalent of the Australian senate – the house of Lords – has bishops and archbishops in designated seats to give the parliament authority. Colonial Australia was created with spiritual authority and continues to run from that authority.

First Nations – Spiritual Sovereignty. Crown – Temporal Sovereignty

In the Uluru Statement parallel, the temporal power is labeled the “sovereignty of the Crown”. “The Crown” is simultaneously both 1. the British Crown who was coronated in the Church of England and enacted the colonies, and 2. a symbolic figurehead of the Australian polity called the “Queen of Australia” (this is a bit complicated and I have explained it more in this post). The Uluru Statement refers to this second aspect – the local Australian Crown.

From the Uluru Statement – Sovereignty, as a spiritual notion, is the connection that First Nations have with their land and ancestors. This spiritual notion of sovereignty “co-exists with the sovereignty of the Crown“. This is exactly how the Church’s spiritual authority co-exists with a Crown’s temporal power. First Nations will take the place of the Church becoming like an Australian “Pope” – their spiritual connection with the land and ancestors is akin to the Church’s connection to God.

The colonial Queen (of British Subjects residing in the Commonwealth of Nations) has been coronated – but no one with authority has yet coronated the “Queen of Australia” (Queen of Australians as a separate body politic). The only thing missing now – is the Australian “Pope” has to coronate the Australian “Crown”. First Nations need to use their spiritual sovereignty to legitimate the temporal power of the democratic body.

At the Yulara convention, when Pat Anderson symbolically presented a coolamon to the Australian people containing a piece of paper with the Uluru Statement printed – perhaps that represented an offer of temporal power in the similar way that an orb and sceptre is presented at a coronation ceremony. A coolamon is a vessel used to carry physical, worldly objects; it makes a good stand-in to represent the material world. It resembles a large, slightly curved land mass on the earth’s surface – like the Australian continent. It is used by women to carry babies – just as ‘mother earth’ carries us all. There were a number of other ceremonial objects presented, with no explanation of the meaning. I’m not sure how this transfer of power will happen, but perhaps it will be by the treaty of federalism between Australia and First Nations, with First Nations reserving only spiritual sovereignty as their residual power.

Mr. Bayona ba Meya’s quote helped characterise First Nations sovereignty in this very specific way, as a spiritual notion. It would have been difficult to fish for something similar in consultations, especially when so many Aboriginal people are focused and still agitating strongly on Land Rights and other matters that are clearly in the temporal realm.

A sword, or a shield… or two swords?

The seemingly nonsensical “sword and shield” analogy given in the Referendum Council Final Report also starts making more sense when seen in this context.

The parallels between an anti-discrimination clause and a shield is self-explanatory as they are forms of protection. Painting an advisory-only voice as a sword seems like a stretch. But the voice as a sword analogy resonates with the Catholic doctrine of Two Swords. First Nations people are to hold the spiritual sword. The nation state will hold the temporal sword.

 “We are taught by the words of the Gospel that in this Church and under her control there are two swords, the spiritual and the temporal . . . both of these, i.e., the spiritual and the temporal swords, are under the control of the Church. The first is wielded by the Church; the second is wielded on behalf of the church. The first is wielded by the hands of the priest, the second by the hands of kings and soldiers, but at the wish and by the permission of the priests. Sword must be subordinate to sword, and it is only fitting that the temporal authority should be subject to the spiritual” .

(Unam Sanctam, Denzinger 873)

The new Australia will be running off the authority of the spiritual sword wielded by the First Nations peoples. The nation state wields the temporal sword, which is subordinate to the spiritual sword.

Those promoting the Statement may tell us we will not be subordinate, which is technically true in terms of derivation of authority. But this isn’t medieval Europe – the Pope and church leaders might still be the top of the chain of authority, but they aren’t allowed to influence much in worldly affairs, and neither will we.

Consider also what happened in France in 1905 when state secularism was established. If we frame our law in a purely spiritual way, and a strict regime of state secularism were introduced in Australia; consider the consequences. Will ‘special Aboriginal funding’ and ‘special Aboriginal treatment’ be seen as being an attack against the separation of church and state? In France they basically confiscated all places of worship as public property. What happens to our sacred sites?

A spiritual sword is not very useful in a secular world.

Title image by emersonmello from Pixabay

Malcolm Turnbull, upon accepting the Referendum Council final report, claimed in a joint media release that the Referendum Council said the offer was “take it or leave it”

The Referendum Council said the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people.

I have never seen this claim denied by anyone, but it seems to be confirmed in this sbs article here by Thomas Mayor – one of the main faces pushing the statement. Mark Liebler, Referendum Council Co-Chair also attached this same news article to his own Joint Parliamentary Select submission (no. 8) with a commendation.

The Referendum Council heard us, and they informed Government that the substantive recognition we asked for through a constitutional Voice was a “take it or leave it proposition”.

Thomas Mayor

If the offer really is “take it or leave it”, it puts First Nations people in a very vulnerable position when future problems with the enacted proposal come up. This vulnerability comes from the doctrine of Contra proferentem.

from https://en.wikipedia.org/wiki/Contra_proferentem

Contra proferentem (Latin: “against [the] offeror”), also known as “interpretation against the draftsman”, is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

First Nations people, in this case are the draftsman. Because they claim to be the authors of the proposal, it makes it very difficult for them to later contest any ambiguity in the agreement.

This doctrine means that the drafted offer should be comprehensive, clear and succinct. In my opinion, the Uluru Statement offer is not comprehensive enough to meet the minimum expectations of First Nations peoples. It does not ask for reparations, land rights, the end of child removals, implementation of deaths in custody recommendations, a right to be consulted, any specificity on when the duty to consult should be triggered, any details on the structure of the Voice such as a minimum floor number of seats the Voice should have. Yet, many have expectations that these things will result from the proposal. This lack of detail and ambiguity in expectations will bite us because of contra profentum.

I have already written about another way that will make it hard for First Nations to get out of a rotten deal by claiming they were tricked – and that is if they sleepwalk into agreements while relying on disinformation that is being spread on social media regarding non est factum.

It seems that the Referendum Council have structured things to make it as difficult as possible for First Nations people to go back on this proposal – despite the fact that many legitimately do not understand the consequences of it.

An interesting way this ‘take it or leave it’ offer has been structured, is that the Referendum Council split up some of the details in the proposal outside of the Referendum Council Final Report. As the offer is ‘take it or leave it’, this means that the offer is “it“. Only what is actually in the Referendum Council Final Report and the Uluru Statement will be legally binding.

This is why they call it “co-design” of the Voice – and not “negotiation” of the Voice. The difference is this. Co-design is where Parliament designs the Voice, while taking input from First Nations people. However – it is still 100% the decision of Parliament what the final design is. First Nations do not even rubber stamp the design. They simply inform.

If the offer were instead – not ‘take it or leave it’ – but be an offer to be negotiated, the final design outcome after negotiation of the form of the Voice would be binding. Parliament would not be able to change it without consent of First Nations people.

Making it ‘take it or leave it’ is very foolish when the offer is not comprehensive and detailed.

This trickery is obvious when you see what the Referendum Council did with regards to a Joint Select Committee (JSC) Submission, number 479. (The JSC was the step that happened immediately after the Referendum Council Final Report. )

The authors of this submission are Aboriginal members of the Referendum Council who were responsible for the design and execution of the First Nations Regional Dialogues and the national constitutional convention and the technical advisors who assisted the Indigenous working groups in the First Nations Regional Dialogues and the national constitutional convention. We are solely responsible for the views and content in this submission.

Joint Select Committee submission 479

At first glance, it seems strange that they did not think ahead to include many of the details in this submission in the final report. The details in the submission draw on the dialogues themselves, and regard things such as the design of the Voice, the possible wording for a referendum and wording for Constitutional (big C) amendment. The reason they separated these things from the Final Report is, I believe, because by putting them separate from the offer, they will ultimately not be binding. It is to give people a misleading impression that these details are part of the offer – when they are not.

These details, and anything else not spelt out in the Referendum Council Final report are optional extras – they will not be protected. This includes other subsequent chatter and pipe-dreams of having designated seats in Parliament, having a say in certain laws, or having some control over the structure and design of the Voice. This includes the outcome of the co-design process – and if you understand this, you will see that participating in co-design is a complete and utter waste of time. If you want these things to have permanence- they should have been included in the original take-it-or-leave-it offer. It’s too late to add them now.

Image by Aida KHubaeva from Pixabay

The word “Constitutional” – can mean one of two things.

1. The Commonwealth of Australian Constitution Act 1901 – the document itself. In academic literature this is often called the “Big C” constitution.

2. The word ‘constitution’ also means the composition of something. So the ‘little c’ constitution of Australia means the composition of Australia. Australia is composed of a federation of colonies, including the parts of those colonies; the structural parts such as the executive, judiciary, legislative branches and the Australian people. That is the ‘little c’ constitution of Australia.

Which one of the meanings of “constitutional” applies to the Uluru Statement?

If you look at the Referendum Council report, you will see that the “recognition” is to happen in an extra-constitutional Declaration of Recognition. “Extra-constitutional” – means outside of the constitution (like extra-terrestrial means from outside of earth).

Also in the Referendum Council final report (p11) it explicitly says that the delegates outright reject a “statement of recognition or acknowledgment in the Constitution”.

“Recognition in the constitution” that is outside the Australian Constitution Act, must therefore mean that the Uluru Statement asks to recognise Aboriginal and Torres Strait Islander peoples as belonging in the composition of Australia.

“Constitutional Recognition” possibly does not involve the Commonwealth of Australian Constitution Act at all.

Revisiting Recognition

The word “Recognition” can also mean different things. If we consider that Aboriginal and Torres Strait Islander peoples are possibly not part of the explicit composition of Australia – the context of recognition must be looked at from an international political point of view.

In international politics and law – recognition means something very specific. This is also called “diplomatic recognition” or “State recognition”. This is when a nation State recognises the sovereignty of another State by establishing diplomatic relations with them. The consequences of diplomatic recognition are significant. This video is a good primer on recognition and how it happens.

Australia (or one of it’s many “Crowns”) needs to diplomatically recognise Aboriginal and Torres Strait Islander peoples as being separate to Australia in order to conduct a Treaty with them to legitimise Australia’s own claims over the territory. This presents a problem – because to recognise Aboriginal people as being separate of Australia, is to admit that Australia’s own claim is sketchy.

The colonial solution is – to diplomatically recognise Aboriginal and Torres Islander peoples as being part of the composition of Australia. Or in other words – ‘little c’ constitutional recognition. All up – “constitutional recognition” – is to diplomatically recognise the sovereignty of Aboriginal and Torres Strait Islander peoples as being an integral part of Australian sovereignty.

This is substantive recognition. One of the meanings of substantive is ‘belonging to the substance of a thing’. Contrary to common understanding – constitutional recognition in the context of the Uluru Statement is not to get a mention in the text of the Constitution Act.

I suspect the Voice itself will also be ‘enshrined’ in the composition of Australia and not in the Constitution Act itself. The Referendum Council appear to have carefully structured the proposal to allow this by separating out certain parts of the proposal from the Final Report into their Joint Select Committee submission (No.479), which deceivingly makes these parts look like an integral part of the non-negotiable offer when they are not.

How to bypass this

Instead of politically assimilating into the Australian state – Aboriginal people can establish diplomatic relations with States other than Australia. This means declaring their own statehood like the Sovereign Union advocates (through UDI’s) and start building their own international relations. Building relations can be done gradually – it does not mean that immediate recognition by the entire UN is needed. This process can start as simply as sending a delegation to meet with another countries leadership, there are pacific island nations who I think will be receptive. Having a single foreign state recognise an Aboriginal nation would be a good start and may set off a chain of more recognitions.

This avoids being recognised as being part of Australia and legitimising the ongoing genocide and occupation. This will in turn force the Crown’s hand, and will either lead to the negotiated, internationally-binding sovereign Treaty that Aboriginal people expect (unlike domestic ‘agreement-making’), or could possibly lead to outright Aboriginal independence or to a new basis for rebuilding a modern Australia with the guidance and leadership of the ancient peoples of the land.

Image by anncapictures from Pixabay

Back in 2012, this was the advice from the Expert Panel. I’m going to break this advice down – because firstly – it does not actually address the concerns that Aboriginal people have about sovereignty, and secondly – I want to show that the advice is technically correct, although it gives a misleading impression.

The first quote:

the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples

Expert Panel legal advice

It is true that the sovereignty of the Commonwealth does not depend on any act by Aboriginal and Torres Strait Islander peoples – and I will explain why. This is to do with international law and diplomatic recognition. There are two theories on state sovereignty internationally. You can see them here on the wikipedia page about Sovereign States. They are 1. constitutive and 2. declarative.

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state

wikipedia: Sovereign State

Australia meets this, because it is recognised by other states.

By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity’s statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force.

wikipedia: Sovereign State

Australia meets this as well, as long as it successfully maintains the position that it’s sovereignty was not gained by military force. This is one reason why Australia denies the Frontier Wars (refuses to have include in the War Memorial) and maintains that Australia was “settled” and not “conquered”.

It is true – that in international law – no explicit act of confirmatory acquiescence from Aboriginal people is needed. But nevertheless – Australia’s sovereignty claim does depend on Aboriginal people not challenging this claim in the international arena.

In other words – the sovereignty of Australia is dependent on Aboriginal peoples keeping their mouths shut, it is not dependent on Aboriginal peoples actively agreeing to anything.

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Next Expert Panel legal advice here;

“The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.”

This is easier to digest in two sentences.

The first sentence.

The constitutional legal position on sovereignty is that: recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled.

The Australian constitution is an Australian (colonial) document, it’s pretty clear from reading it – in particular the enacting clause. If Australians choose to include/mention/recognise as equal citizens – aboriginal peoples in the constitution – that’s Australia’s business. It has nothing to do with Aboriginal and Torres Strait Islander peoples, because we remain distinct and separate (A/res/2625/xxv) from the colonial occupation.

Constitutional recognition will not foreclose on the question of how Australia was ‘settled’, because it simply makes a unilateral claim on behalf of the Australian people. Australian people can claim whatever they like in their constitution – at the end of the day – it doesn’t matter because the status of the territory itself and over ourselves as Aboriginal people, is not their call. Our sovereignty of the soil still stands in the way.

If you look at George Williams’s paper – he suggests that ‘settlement’ can happen in the past, present or future. Australia claims that “Australia was settled” – but don’t assume that settlement is something that has already happened in the past and has been concluded. I think what is happening is, that the end story will be that Aboriginal people first settled Australia, and the British validly merged into that sovereignty by also settling and bringing their laws. These reforms are to formalise and foreclose this position.

But this can’t be formalised by constitutional recognition ALONE – which is what these lawyers are basically (correctly) saying. It needs another vital step – a constitutional reenactment, or declaration of independence – it requires an international act as it is an external assertion of sovereignty. This state act (with Aboriginal people onboard) WILL foreclose on the issue. These lawyers are not technically lying, but they are not telling us the whole truth.

The second sentence.

Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.

Reworded slightly: Constitutional recognition shouldn’t have a detrimental effect on future domestic projects.

Historically, government policies have been atrocious – this is just saying that constitutional reform shouldn’t make domestic policies any worse. How lame.

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Referendum Council Report Advice

Some legal advice that ended up in the referendum council report.

Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The subsequent occupation of the country and land law in the new colony proceeded on the fiction of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been the exertion of force by and on behalf of the British Crown. No-one asked permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them.

Referendum Council Final Report

So what?

If you look at the positioning and context of this quote in the report (end of page 11)- it seems to be trying to reassure us that the changes will not affect our sovereignty. But this is not reassuring at all. If anything – it means we should be even more concerned – because we clearly have a lot to lose.

All this quote does is state a position, this time – from an Aboriginal perspective. It does not explore – whatsoever – the affect that the Uluru Statement changes will have on that position, nor other pathways that could be taken from this position.

So far I have not seen anyone associated with these reforms explaining what effect the Uluru Statement has on our sovereignty. All I see is clever sound-bites that skirt around the issue.

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Image by Kerstin Riemer from Pixabay

More reading:

George Williams: http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/Issues_Paper2.pdf

Megan Davis: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/ILB/2012/25.html

2012 Expert Panel report: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Constitutional_Recognition_2018/ConstRecognition/Final_Report

Referendum Council report: https://www.referendumcouncil.org.au

If we are serious about asserting our sovereignty, then we have to start asserting it. One way to assert sovereignty – is to write an Aboriginal Bill of Rights. It is a good chance to lay down our law/lore and values, and to concile with peoples of the settler-state.

I don’t mean a Bill of Rights that sets down settler state obligations to the inhabitants.

I mean a Bill of Rights that sets out our obligations that we as Aboriginal peoples – acting as sovereigns – have towards settler-peoples.

The current lack of Rights

Peoples of the settler-state have very little rights in their colonial system. Most ‘rights’ have are legislated, and can also be taken away by legislation.

The only true rights – the five + one constitutionally protected rights are;

There are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).

The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.

Aboriginal people have historically had some of the five explicit constitutional rights systematically denied. Voting rights and land acquisition are obvious. Trial by jury for Aboriginal people is a curse – in practice it means trial by a white jury – not trial by peers, which defeats it’s purpose. Section 116 prohibits the Commonwealth making laws for prohibiting the free exercise of any religion. Our freedom of religion has been indirectly denied through state action systematically destroying our language and culture.

Adding a new constitutional prohibition on racial discrimination was recently put in the too-hard basket.

And for Australians, this list of constitutionally protected rights is a haphazard mish-mash full of omissions and holes.

I think the reason why Australia never had a Bill of Rights is because it is a Federation of colonies. It is a compact between Crown colonies – it is not a relationship between governments and the people. The people are passive bystanders in this system. The only active role the people have is to approve of changes to the federal Constitution, and to elect members of Parliament. Members of Parliament are sworn to serve the Crown – not the people. Even the State constitutions are changed without the approval of the people. It doesn’t make much sense to have a Bill of Rights in such an arrangement.

Biggest barrier to effective assertion of Aboriginal sovereignty

The biggest barrier to asserting Aboriginal sovereignty is not the settler-colonial state itself. It is settler-colonial people’s fear of the unknown.

The settler-colonial state’s legitimacy (whether you think it is valid or not) is underwritten by both the Crown and the settler peoples. There is a complex interplay of power. But at the end of the day, the settler peoples will have the choice between continuing a system built on colonialism and domination, or coming under our ancient system grounded in the soil.

To help settler peoples make this choice – we can present the settler peoples with a charter of principles that we pledge to uphold if they choose to work with us. This can hopefully ally their biggest fears. Their fears are mostly based in ignorance of our values and of our culture. This isn’t their fault, but it is something we can proactively address.

Land Reform

Put yourself in the settler’s shoes. They are afraid that we will take their house, hills hoist and their livelihoods. They forget that the Crown can already take their house anyway. If their house stands in the way of a new road it can be resumed on the condition the Crown pays just compensation.

Maybe we can match the Crown’s land protection in our Bill of Rights, or offer an alternative deal. We could reform the way land title works. People want security in their land tenure, they also feel threatened by multi-nationals and foreigners buying up large swathes of ‘their’ land. Right now, settlers are afraid that Aboriginal people could take all the land back, and they will be left with nowhere to live. This fear is possibly due to Jungian projection – because it is what they did to us historically. But this is something that can work in our favour. If we can offer settlers alternatives to the Crown’s ‘rights’, attractive alternatives that takes their concerns into consideration, why would they continue to support the colonial system? The Crown’s ‘rights’ are afterall, pretty pathetic.

Right now, so-called Aboriginal leaders are promising settlers that we will uphold all private land title. I don’t think that is fair. What of an extreme theoretical example – someone owns a very large station the size of a small European country with a homestead that they have inherited from their great-great-great-grandfather who personally massacred people to get that land. I don’t see why the traditional owners should be guilted into rolling over and accepting that. Furthermore, I don’t think normal Australians think that is ‘fair go’ either. Normal Australians may feel some sorrow for such massacres, but don’t have their own personal cattle station to show for it. Perhaps let the settlers in our theoretical extreme keep the homestead – but not the entire property. Not all private property should be protected – that isn’t reasonable. Normally people who receive stolen property do not get to keep it. Can we come up with a reasonable compromise?

Human rights, Environmental rights

Looking at the rights enshrined in the Constitution, there isn’t much there in terms of human rights or state obligations to protect the environment.

Aboriginal culture has a solid foundation in terms of obligations to other people and to the environment. Settlers are not aware of the depth of these obligations. A lot of these obligations could be ‘translated’ into a Bill of Rights. This can offer settlers a sense of reassurance, security and stability while authentic, meaningful decolonisation and the disruption surrounding such a process happens.

Lore/Law Principles of living with the land

It’s not about rolling over an giving settlers everything they want, and fitting us in as an afterthought. Neither is it about materially about taking everything back as our ‘property’. It’s not about revenge or retribution.

It’s about laying down a foundation of principles that we use to re-establish the law/lores of the land, and come to compromises based on that. It has always been our obligation as peoples born into our bloodlines – to keep the law.

I am not in the best position to talk specifics about law/lore, as I did not grow up close with it. There are people who hold this special knowledge. They are best placed to come up with these principles in the first instance. Not me, or “Aboriginal leaders”. I just offer here a rough vision and some examples as starting points.

It is something that the settler-state is severely deficient of – principles and values. I think people feel that deficiency deeply, it is the basis of the shallow national identity. Australia doesn’t really stand for anything. It is like a ship lost at sea.

I believe our principles and values will resonate with settler peoples if we can present them in a way they can understand. The ship will then have something solid to anchor itself on, and those on the ship can be welcomed to their new home on solid ground.

Bild von Terri Sharp auf Pixabay