CONSTITUTIONAL RECOGNITION OF FIRST AUSTRALIANS
CONSTITUTIONAL RECOGNITION OF FIRST AUSTRALIANS
Starting in 2007 with former Liberal Prime Minister John Howard, the Australian Government has been pushing for ‘Constitutional recognition of Aboriginal & Torres Strait Islander peoples’. However, many First Nations people are questioning the motive behind this multimillion dollar campaign.
Veteran Gunnai activist Robbie Thorpe believes including First Nations people in the Constitution equates to “tacking us onto the back of the White Australia Policy 100 years later”.
“If we do consent to that Constitution, we’re giving up our sovereignty in a sense, and legitimizing what’s happened to us over the last two hundred years in this country,” says Mr Thorpe, a producer at Melbourne’s 3CR.
Aotearoa (New Zealand) is also in the process of reviewing its Constitution, which happens to include both a Bill of Rights and the nation’s founding document, the Treaty of Waitangi. An agreement with First Nations people and a Bill of Rights are both documents absent from Australia’s legal groundings. Two central focuses of New Zealand’s Constitutional Conversation, instigated by the Maori Party, are the role of the Treaty and Maori representation in Parliament.
First Nations philosophers Mary Graham (Kombumerri/Waka Waka) & Lilla Watson
According to Chairman of the Centre of Indigenous Cultural Policy Bob Weatherall, Constitutional recognition is yet another paternalistic government policy. “Nothing has changed,” says Mr Weatherall (Gamilaraay). “It’s just a new Act and new provision that’s being imposed on us, keeping our people down. We’ll still have the dominant society over the top of us who make laws and policies that continue to deprive us of our basic human rights and fundamental freedoms.”
In 2010, the Gillard government handpicked an ‘expert panel’ to make recommendations in regards to amending the Constitution. Palawa lawyer Michael Mansell claims the panel’s proposal to remove the race power (section 51xxvi) is redundant as they simply replace it in a new section (51a). This new section will preserve the parliament’s ability to pass laws “for the benefit” of Aboriginal and Torres Strait Islander peoples [e.g. Northern Territory Intervention].
Mansell also condemns the proposed new section 127a which will confirm English as Australia’s official language and recognize Aboriginal and Torres Strait Islander languages as part of our national heritage. He says the call “stinks of racism” and that First Nations people have “the right to maintain our languages against assimilation”.
On the other hand, you have New Zealand’s recognition of Maori as one of the nation’s three official languages, alongside English and sign language.
Gumbaynggirr university student Gabi Briggs believes this proposed amendment will make it more difficult to recuperate and revitalize First Nations’ languages. “Those on the ‘expert panel’ and in government see Aboriginal culture as secondary to the culture of the colonizers and making English the official language of Australia marginalizes our cultures once again.”
Gumbaynggirr historian Gary Foley says Constitutional recognition is a joke and a waste of time. “Government only ever pumps millions of dollars into things that are essentially meaningless, things that are designed to divert our attention from the real issues.”
Amnesty Internationals Monica Morgan (Yorta Yorta) says Constitutional recognition fails to address the issues of sovereignty and Treaty.
http://www.989fm.com.au/smashingthemyths/constitutional-recognition-is-a-good-thing/
NATIONAL: The Expert Panel’s report’s decision to bypass sovereignty and self-determination is a great failing, writes MICHAEL MANSELL*.
The Constitution is both a source and a limitation of power. It establishes Federal and State legislatures and limits each government to stay in its own yard.
It establishes the High Court to decide disputes between bickering governments.
The Constitution is the political manifesto of the nation. It is by virtue of the potency of the Constitution that recognition of Aboriginal rights must be so carefully approached.
Crafting a constitution that deals with dispossession, and political and cultural rights for Aboriginal people, while acknowledging the real purpose for the existence of the constitution, requires some intense deliberation.
The Australian constitution is no human rights document as it “was not the outcome of a revolution, or a struggle against oppression. It was designed to give effect to an agreement for a federal union, under the Crown, of the peoples of formerly self-governing British colonies”.
The constitutional charter for how white people were to govern themselves and others, pay and spend taxes, and apply British law, remains the same today as it was in 1901.
The constitution recognises parliament’s rights over people, but not people’s rights. With that in mind any recognition of Aboriginal people has to deal with power.
The 1967 referendum did precisely that but instead of power over Aborigines being handed back to Aborigines, the 1967 referendum merely transferred Aboriginal affairs from one government to another.
Recognition must naturally be advantageous to Aborigines, otherwise there is little point to the exercise.
If the constitution is to ‘recognise’ Aboriginal and Torres Strait Islanders are the views of a handful of government appointed people or the aspirations of the broader Aboriginal community to be listened to?
Take the submission by the Central Australian Aboriginal organisations to the Two Hundred Years Later enquiry (conducted in 1983 to look at the “feasibility of a Makarrata or compact with Aboriginal people).
It stated, in part: ‘We have never conceded defeat and will continue to resist this ongoing attempt to subjugate us.
“The Aboriginal people have never surrendered to the European invasion and assert that sovereignty over all of Australia lies with them.
“The settler state has been set up on Aboriginal land. We demand that the colonial settlers who have seized the land recognise this sovereignty and on that basis negotiate their rights to be there.”
Australia is vaguely familiar with freedom of speech but the concept of freedom of a people has escaped attention. For 200 years Aboriginal people have been dominated to an extraordinary degree.
The current NT intervention laws are a product of that domination. Yet Julia Gillard’s expert panel left untouched the supremacy of parliaments to decide policy and law on behalf of Aborigines.
Effectively, the expert panel legitimises the invasion of Aboriginal lands, with whites having the right to govern and Aborigines the right to be governed.
The bottom line for the panel is to promote assimilation. They make no mention of sovereignty or self determination, the two most important rights Aborigines are entitled to.
The will of the Indigenous peoples must prevail. ‘Allowing’ Aboriginals to decide their fate must be a right, not a privilege to be granted by government.
What greater statement could the people of Australia make to Aboriginal people than ‘here is your freedom!’
Expressing that freedom in the constitution binds the parliaments. Don’t hold your breath for Julia Gillard to lead the way on human rights while she watches the polls. It is for the people of Australia to place their mark on the type of society they wish to live in and be respected for.
Altering the constitution to provide for the freedom of Aboriginals to choose frees the nation of guilt for the past by taking responsibility for the present, and giving Aboriginals and Torres Strait Islanders a future of their choice.
By avoiding the “will of the people’ debate, the expert panel made sure the public never gets to deal with the idea of political freedom. The appropriate constitutional amendment should be, “Aboriginals and Torres Strait Islanders are sovereign peoples with the right of self determination”.
Those words do three things.
First, they acknowledge the sovereign status of the people of Australia before, and after, invasion.
Second, that the Indigenous peoples of Australia, like all other peoples of the world, ‘freely determine their political status’.
Third, negotiations between government and Aboriginal people are equal.
Political representation for Aboriginals would be a matter of choice too: either through an Aboriginal government (the argument that there cannot be two governments in Australia ignores the fact there are six State, two Territory and 560 local governments in addition to the Federal government) or guaranteed seats in the parliaments as is the case in New Zealand.
These type of arrangements would be authorised by the APG constitutional amendment. The authorised document might be a treaty. The date of the signing could be a new national day to replace the race-based January 26th. The expert panel recommended four changes to the constitution:
First, “an acknowledgement that the Indigenous peoples ‘occupied’ the continent and continue to connect with traditional lands.
This acknowledgement to be placed in the body of the constitution instead of in the preamble”.
Such words create no rights to sue on, nor obligation on government. The use of ‘occupation’ instead of ownership and sovereignty indicates a defeatist attitude. They also recommend removing the existing s51 race power but put race back in a new section! Somehow the panel believed its approach would stop anti-Aboriginal laws.
Their proposal is naïve. Under a different head of power, the constitution allows amendments to a law made for the benefit of a race, as was the case of the Hindmarsh Bridge case.
Protection for heritage given under Aboriginal heritage laws were taken away by an amendment. Whether a law is positive or negative is up to the parliament that makes it, not the constitution or the courts.
The third recommendation was to delete s25 which allows States to control voting based on race. The section has never been used and would be struck down by a contrary Commonwealth law even if a State ever tried to use it.
The removal of s25 might make Julia Gillard look good but it will do nothing for Aboriginal people. The fourth, and most controversial recommendation, was to make English the national language.
It is one thing to note that English is used more than Aboriginal in Australia. It is quite another to promote the superiority of the language of one race over that of another.
The call stinks of racism. It is our right to maintain our languages against assimilation.
The expert panel’s suggestion comes from a completely antiquated mind-set, but also runs counter to all the international instruments protecting Indigenous languages which Australia is signatory to, but consistently breaches.
It will serve to legitimise the long standing lack of adequate action from Australian governments to try to save Aboriginal languages.
In just over 200 years, Australian Aboriginal languages have suffered the largest and most rapid loss known worldwide.
Of the original 250 languages, over 200 are no longer spoken and only 18 are now spoken by people in all age groups – as Australia’s own Aboriginal and Torres Strait Islander Social Justice Comissioner told the United Nations in 2010.
At this rate all Aboriginal languages could be dead in 10 to 30 years. What message does this statement by the Expert Panel give? Mick Gooda works for the Human Rights Commission.
How he can maintain the integrity of his office while endorsing English language over Aboriginal language is difficult to imagine.
The Greens forced Julia Gillard to propose constitutional reform and it might prove a good distraction from her poor record on Aboriginal affairs. She should not lead the debate. At the present, she could not sell wheat to a chook farm.
Her performance in Canberra over Tent Embassy protests did little to change opinion on her abilities as a leader, or her attitude towards Aboriginals.
Looking cowed and weak, Julia Gillard’s handling of race issues went downhill from the time her security dragged her to her car.
Not once did she later acknowledge that Aboriginal people had every reason to be angry.
Instead she praised her security and promoted Warren Mundine and Gooda, illustrating how she is willing to divide Aborigines for her own gain.
Aborigines won’t trust her to lead constitutional reform. By the way, the burning of the Australian flag is not illegal and the High Court would strike down a prosecution for burning a piece of coloured rag as a constitutional guaranteed freedom of speech.
As if to completely seal the issue, Julia Gillard’s expert panel member Mick Gooda rushed to condemn Aboriginal protestors in order to ingratiate himself with the Prime Minister. In that single foolish moment, Mick Gooda killed the constitutional changes he sought.
*Michael Mansell is a prominent Tasmanian Aboriginal lawyer and activist.
http://tracker.org.au/2012/02/guest-tracker-constitutional-report-won%E2%80%99t-right-past-wrongs/
Elders and Lawmen and Women of the Original Sovereign Tribal Federation challenge the Prime Minister
In order for the various Australian governments to complete the fraud of unlawfully usurping the Sovereign status and authority of the Original Tribes of this island continent it requires the icing on the cake of a constitutional inclusion which it will be claimed has the effect of skull-dragging the Tribes under the jurisdiction of the parliaments of the Commonwealth and the various states and territories.
Dissimulatione tollitur injuria – is a term not many would be aware of – it is a legal maxim which when translated says that “Injury is wiped out by reconciliation”.
It is easy therefore to comprehend the true meaning behind John Howard’s smug quip that he supports ‘practical reconciliation’.
In a press release dated `9th August 2010, ANTaR’s president, Janet Hunt states that:
“Australia’s Constitution includes no reference to the unique place, history and rights of Indigenous peoples in our nation”.
The reason the Constitution does not include a reference to Our ‘unique place, history and rights’ is because the Constitution does not and was never meant to have any authority in respect of the Original Tribes.
Ms hunt continues,
“It (the Constitution) also offers no protection against racial discrimination, and it has been interpreted as enabling governments to legislate to the detriment of Indigenous peoples”.
For once someone has stated the truth (although possibly unintentionally) about the misinterpretation of the Constitution and its’ relevance to the Original Tribes, as when first created, the ‘Constitution’ held at Section 51.26 that the Commonwealth could make laws for anyone other than for people of the ‘Aboriginal race’. This being due to the fact that the Sovereign status of the Original Sovereign Tribes had been ensured 25 years previously in the Pacific Islander Protection Act Amendment of ~2nd August 1875 Sections 6 and 7.
Further, the Sovereignty of the parliament of the Original Tribes could not be usurped by the Sovereignty of the Parliament of the UK. This rule applies equally for Aotearoa (New Zealand) and other Pacific jurisdictions, (Halsbury 3rd Edition, volume 36-statutes paragraph 559 at page 337 of that volume).
The Constitution has indeed been INTERPRETED as enabling governments to legislate to the detriment of indigenous peoples. However this misinterpreted claim of right has been erroneously and apparently intentionally assumed by various governments for the criminal benefit of corporate greed.
The Original Sovereign Tribal Federation is the voice of many Tribes across this continent, with Our membership growing daily, and we put the Commonwealth, states and territories on Notice that We intend to be taken seriously in Our stand on Our status as the True blood-line connected, Lodial title holding Sovereigns on this content.
The Original Sovereign Tribal Federation challenges the Prime Minister (an office not found ANYWHERE in the boundary of the Constitution by the way) to come and sit in circle with Our Elders and Lawmen and Women to negotiate to create a better way forward. We know we can do it – Where is the Crowns representative?
Gary Simon Jagamarra & Gunham Badi Jagamarra (Mark McMurtrie)
Co-Convenors and Secretariat
Original Sovereign Tribal Federation (OSTF)
An example of submission submitted: As a Goori from the Biripai Thungutti Marrawon more commonly known today as Hastings & Macleay valleys of Mid North Coast NSW, In relation to the submission to The Panel on Indigenous Constitutional Recognition- submit the following: Any recognition for Aboriginal people must: Acknowledge Aboriginal people as Sovereign owners of Australia as the First Nations of the land to ensure human rights are not comprimised by any acknowledgement. Ensure that any rights for the 1st Nations of Australia meet as minimum the standards established in Canada, NZ & USA as fellow British penal colonies of parlimentary representation, recompense for loss and trauma sufferred establishing Australia
Rules of contracts are very specific, those contracting must have capacity ( knowledge & education pertaining to all aspects) and with that a fair and equal meeting of the minds!
As a fraudulent corporation they only serve themselves and their fellow thieves, they serve no people!
Why should the Indigenous or the rest of the people keep bowing to a Monarch that has no legal claim upon this Country….and be subjected to a Constitution that we don’t even own…..
The Constitution was a Document that was forged by the British to appease the people at the time here because Britain knew they were about to lose this Country the same as the Americas
Time to Claim Sovereignty and rewrite another Constitution and a Bill of Rights – David Grayson
As has been stated, they rely on unlawful admiralty law, the law of contracts. Rules of contracts are very specific, those contracting must have capacity ( knowledge & education pertaining to all aspects) and with that a fair and equal meeting of the minds! If one party is larger, more knowledge ie; a corporation masquerading as a government that party holds a fiduciary responsibility to protect and hold harmless the lesser party? In short all contracts with them are invalid, unconscionable and unenforceable technically! Apart from there being no constitution, having no Sovereign rights to form Government they continue outside their own rules and any international rules pertaining to settlement or occupation! As a fraudulent corporation they only serve themselves and their fellow thieves, they serve no people!
Mr Anderson spokesperson of the Sovereign Tribal Union, wrote that Australia shows it doesn’t have a mature capacity to articulate foreign policy under international law.
” … Australia clearly fails to articulate sound social justice policies, but rather confronts First Nations people under the original ‘rules and disciplines of war’ and thereby applies rules of a police state as a methodology to continually confront Aboriginal people around this country. Statistics of the imprisonment and arrest rates is clear evidence attesting to these police actions.”
Australia is a colonial power with a constitution which is an Act of the British parliament; Australia in breach of UN Conventions and fails to comply with treaty body procedures; and Australia still has no effective law against genocide.
Australia is a country that constantly violates international treaties in respect to its human rights abuses within its own borders, as recorded in the many submissions to UN treaty bodies on the treatment of First Nations Peoples and refugees.
Furthermore, Australia’s colonial mindset is exemplified in its attitude towards the imprisonment of Aboriginal people. We are but 3% of the population but the imprisonment rate is increasing. The imprisonment of Aboriginal women is up by 60% between 2000 and 2010. We are alarmed by the way Australia criminalises ‘otherness’.
The Bureau of Statistics reveals:
Between 2001 and 2011, imprisonment rates for Aboriginal and Torres Strait Islander Australians increased from 1,267 to 1,868 Aboriginal and Torres Strait Islander prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. In comparison, the rate for non-Indigenous prisoners increased from 125 to 130 per 100,000 adult non-Indigenous population.
For two hundred and twenty five years our country has been occupied by the British and ruled by all their successors in title.
From the original instructions to the invading Captain Arthur Phillip, the British advised in 1788 that upon their landing an invasion of the land mass, then referred to as New Holland and Terra Australis he was to apply the ‘rules and disciplines of war’ from the outset. The historical records clearly show that former Dutch and British explorers were well aware that this new-found land was indeed peopled.
Australian historical records and despatches from various governors to the British Admiralty, during the early years of occupation, tell of constant undeclared warfare. Clearly the 19th century documents and those of well into the 20th century, show that the various Australian colonies ignored the British Admiralty’s instructions for Aboriginal Peoples’ rights to occupy, possess and use their lands and resources as their customary usages had done so previously. Instead, the colonies developed policies and strategies to exterminate our race. If you require evidence of these facts we can produce them at your request.
It is said in law, that in order to prove genocide, it is obligatory for those making the allegations to prove that the State had planned or condoned any practices that lead to the genocide of a particular race or ethnic group in whole or in part, or by condoning private armies or vigilante groups. Should your office require this information, it can also be produced.
Within the last twelve months I have come upon legislation from the British parliament dated 1875 called the Pacific Islanders Protection Act 1875. This UK Parliamentary Act was an amendment to the 1872 Pacific Islanders Protection Act that was popularly referred to as the anti-blackbirding Act, or words to that effect.
The 1875 amendment refers to the 1872 Act as being the principle Act, and in the principle Act the terms and definitions described unambiguously and unequivocally the specific locations and landmasses that these Acts related to. Under the terms and definitions of the principle 1872 Act it included and applied to the colonial states at the time of Queensland, New Zealand, New South Wales, Victoria, Tasmania, South Australia and Western Australia. It must be noted that the current Northern Territory was part of the South Australian colony at this time.
In December 2011, I had the occasion to travel to London to look at the Votes and Proceedings and Bills in respect of the 1875 Pacific Islanders Protection Act in the Office of Parliamentary Counsel in Whitehall. I must admit that I was surprised that the rights of Aboriginal Peoples in Australia were not part of those debates. However, in August 1875 when the Pacific Islanders Protection Amendment Act 1875 was concluded in the Parliament, the Act included Sections 7 and 10, which read:
7. Saving of rights of tribes. – Nothing herein or in any such Order in Council contained shall extend or be construed to extend to invest Her Majesty with any claim or title whatsoever to dominion or sovereignty over any such islands or places as aforesaid, or to derogate from the rights of the tribes or people inhabiting such islands or places, or of chiefs or rulers thereof, to such sovereignty or dominion, and a copy of every such Order in Council shall be laid before each House of Parliament within thirty days after the issue thereof, unless Parliament shall not then be in session, in which case a copy shall be laid before each House of Parliament within thirty days after the commencement of the next ensuing session. [2243] …
10. Proclamation of Act. – This Act shall be proclaimed in each Australasian colony by the governor thereof within six weeks after a copy of it has been received by such governor, and shall take effect in the said colony from the day of the proclamation. [2246]
Having located these sections, I then had discussions with a Member of the House of Commons, Mr Jeremy Corbyn, MP at his Parliamentary office. I asked Mr. Corbyn, how was it that these two sections had been included. He responded to wit: Her Majesty Queen Victoria, through the exercise of her prerogative rights made two Orders in Council: the first being section 7 and the second being section 10. Mr Corbyn then added that, when such an Order in Council is given by the English Monarch, it becomes absolute law within the British legal jurisdiction, which included all the colonies of England at the time and thereafter.
It is important now to refer you to a court case dated 1842 before the full bench of the Supreme Court in New South Wales, R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSW Sup C 35.
Briefly, an Aboriginal man was brought before the court for killing another member f his own tribe under his Law. He challenged the jurisdiction and said he was not a subject of the British king and therefore not subject to the jurisdiction of the court. The court concluded that given that the British instructions were to offer protection of British law to Aboriginal people, then he must be subject to British law. The defence counsel then put it to the court on Jack Congo Murrell’s behalf that if he was indeed a British subject then the colonial state had a legal obligation to compensate him financially for the land they had confiscated from him as a result of the invasion. Interestingly the court held that;
Although it was granted, that on first taking possession of the Colony, the Natives were recognized as free and independent, yet the various tribes were found not to occupy that position in the scale of nations as to strength or government which would entitle to sovereignty. [Sydney Herald 5 May 1836] It is from this conclusion that until 1993 Australia was considered a country settled by ‘peaceful’ means because it was classified as terra nullius, a legal concept that has now been overturned by Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)
In respect to the High Court Mabo (No.2) case, it should be noted that the High Court perused the Pacific Islanders Protection Acts and concluded that, on the question of the continuing sovereignty of Aboriginal people it was not within the High Court’s jurisdiction to form any view and make conclusions. As Aboriginal Peoples we do understand this reasoning because the High Court is established by the settler state to deal with their laws governing their people. The conundrum that we now find ourselves in is the fact that the British from 1875 onwards did not claim sovereignty or dominion over the peoples, our place the rulers and chiefs. This was then and continues now to remain the British law in respect to Aboriginal people.
http://nationalunitygovernment.org/content/last-ditch-effort-block-un-security-council-seat
TRACKER, JANUARY 19TH – FULL REPORT
Constitutional reform report sparks mixed reviews
Amy McQuire Tracker January 19th, 2012
The constitutional reform panel today handed the Prime Minister its final report, but a prominent Aboriginal lawyer has labeled it a squandered opportunity.
The Gillard government last year appointed a 19-member expert panel to hold consultations around recognizing Aboriginal and Torres Strait Islanders in the Constitution, part of an election promise first committed by former Prime Minister John Howard.
The panel travelled around the country conducting a series of public meetings in order to hand down its final report and recommendations this morning at the National Gallery of Australia in Canberra.
Its recommendations include repealing section 25 (which allows Parliament to disqualify any race of people from participating in an Australian election) and repealing section 51 (xxvi) (the ‘race power’ which gives Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
The report proposes a new ‘section 51A’ be inserted which recognizes Aboriginal and Torres Strait Islander peoples (See break out below).
The Parliament would also be able to make laws for “the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples”.
It also recommends a new ‘section 116A’ be inserted which says “The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin”.
The report calls for a new section (127A), which would cement Australia’s national language as English, and while also recognising “Aboriginal and Torres Strait Islander languages are the original Australian languages”.
Prime Minister Julia Gillard today welcomed the report stating that it would recognize the “unique and special place of Aboriginal people and strengthen the identity of our nation”.
Opposition Leader Tony Abbott also said the Coalition would study the panel’s recommendations, stating that it “had a very proud history of support for Indigenous recognition in the constitution”.
The National Congress of Australia’s First Peoples was quick to back the report’s findings, with co-chair Jody Broun saying the “message… is clear, it’s time to eliminate racism from the Australian constitution and to prohibit racial discrimination”.
“If taken to Referendum and passed, these reforms will establish the Constitution as a pillar against racism.”
The Law Council of Australia called on both parties to support the report, and backed the panel’s focus on inserting a guarantee against racial discrimination.
“Australia is one of the only developed countries which does not prohibit the making of racially discriminatory laws under its Constitution,” President Catherine Gale said.
“In a society enriched by so many cultures, languages and racial groups, such protection is long overdue.”
But Tasmanian Aboriginal Centre Legal Director Michael Mansell today hit out at the panel’s report, labeling it disappointing and unlikely to pass at a referendum.
He believes that the focus should be instead on legislative reform of discriminatory laws like the NT intervention.
“The report recommends constitutional recognition for the sake of it, a position that will never wash at referendum and condemns the reform to certain failure,” Mr Mansell said today in a statement.
“… ‘Cleaning up’ out-of-date parts of the Constitution such as section 25… or mucking around with s51 (race powers) will not help a single Aboriginal.
“No state has ever used s25 and would not get away with it today.
Mr Mansell also raised concerns about removing the race powers stating it was “tantamount to heresy” and would “attract accusations of racism”.
“The proposal is to constitutionally delete Aborigines from the constitutional face of Australia. This promotes assimilation and effectively forces Aborigines to copy the behaviour of white people if Aborigines expect not to be discriminated against. It is a deplorable statement.”
He states substituting this section with a new s116A as an “embarrassment”.
Mr Mansell says that the proposal to make English the national language is based on notions of “white supremacy” and could have the effect of making Aboriginal languages “subservient” to English.
He said that the aim to ensure race powers can only be used for the benefit of Aboriginal people was good, but legally unworkable.
“An existing law passed under the race powers can be amended or dumped at any time by a parliament no matter what the race power says. And who decides what a positive law is?
“The High Court has consistently said whether a law is positive or negative is a matter for the parliament that made the law, not the courts.”
He says the focus has to be on national land rights legislation, ending the NT intervention, Aboriginal self-determination and Aboriginal representation in Parliament.
Meanwhile, Amnesty International says it is now up to the government and opposition to work together to educate Australians.
“It is now imperative for the Government to adequately educate all Australians about the importance of modernising our Constitution,” Amnesty’s Sarah Marland said.
“If the government is serious about advancing reconciliation and giving this referendum every opportunity to succeed then it must be properly resourced to build the public’s awareness and education.”
THE REPORT’S RECOMMENDATIONS:
• That section 25 be repealed (This part of the constitution allows the Parliament to disqualify any race of people from participating in an Australian election).
• That section 51 (xxvi) be repealed (this is often referred to as the ‘race power’ and gives the Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
• That a new ‘section 51A’ be inserted: Section 51A Recognition of Aboriginal and Torres Strait Islander peoples; Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together.
• That a new ‘section 116A’ be inserted, along the following lines:
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
• That a new ‘section 127A’ be inserted, along the following lines:
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.
What’s next?
• The government will consider the panel’s recommendations.
• Draft legislation proposing constitutional amendments will be prepared and released for public comment.
• Ms Gillard wants Opposition Leader Tony Abbott to support the changes because without bipartisanship the referendum is likely to fail. The opposition has committed to recognising Indigenous people only in a preamble.
• Legislation will then be put to parliament before a national referendum.
• In order to be successful the constitutional change will need a double majority – support from national majority of voters in states and territories as well as a majority of voters in a majority of states (at least four out of six states.)
• Referendum Facts:
• Since Federation, only eight out of 44 proposals to amend the Constitution have been approved.
• In 1967 a referendum passed with 90.8 percent support (the highest yes vote on record) to give the Commonwealth powers to legislate for Aboriginal people and include them in national censuses.
• The panel wants:
• The referendum question to comprise a single question only.
• A resourced education campaign.
• A referendum to only go ahead when it is likely to be supported by all major political parties, and a majority of state governments.
• The vote to be held at a different time as another referendum on constitutional recognition of local government
Halsburys Rules…..PArt 557 paragraph 12 and 12.1
33 page e-booklet for $1.16 Laymans’ Guide to the English Constitution by Albert Burgess – http://www.lulu.com/product/ebook/laymans-guide-to-the-english-constitution/17349840
legal caveat concerning the validity of westminster law system operating in Australia when there is already a law of the land in operation, the validity of the Australian constitution and the Corporation Australia.
THE RIGHT OF SELF-DETERMINATION The Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 Dec 1960
The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of co-operation and world peace … all peoples have an inalienable right to complete freedom, the exercise of their Sovereignty, and the integrity of their national territory. [1]
The prohibition on the use of force to deny self-determination was first declared in the UN General Assembly resolution 2160 (XXI), 30 November 1966, 98-2-8:
… forcible action… which deprives peoples under foreign domination of their right to self-determination [external or internal] … constitutes a violation of the Charter.
As Professor Rudolfo Stavenhagen concludes:
… the denial of self-determination is essentially incompatible with true democracy. Only if peoples’ right to self-determination is respected can a democratic society flourish … [8]
As recently * as April 2000 the UN Commission on Human Rights re-stated the underlying principle for world peace and good order in Resolution 2000/62:
… a democratic and equitable international order requires, inter alia the realization of the following rights: (a) The right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development … [9]
In the preceding Resolution 2000/40 the UN Commission on Human Rights emphasised that:
… political platforms … based on racism … or doctrines of racial superiority and related discrimination must be condemned as incompatible with democracy … and that racial discrimination condoned by government policies violates human rights … Thus international law acknowledges that there is also a creative process at work and in this way it is the right of First Nations Peoples to determine their own political status, even if this form of government has not been previously recognised by the United Nations. In fact, this is getting close to the crux of the issue because First Nations Peoples already have ancient systems of government, Law/Lore and economy handed down through time, but it was the colonising powers who denied the existence of this sacred process and, instead, subjugated and denigrated the First Nations Peoples.
But now the Earth, our Mother, is stirring and First Nations Peoples across the globe are feeling a new sense of empowerment and the diverse cultures and peoples are re-energising, rising up in defense of our Mother Earth; knowing that unless this happens our Earth is finished. It is the combined energies of First Nations Peoples with non-Aboriginal supporters who can break the shackles of trans-national corporate globalisation, militarism, nuclear cycle and state sovereignty. First Nations Peoples are having to find ways of re-expressing the ‘Voice of the People’, which for too long has been silenced by the dominant powers and an obstructionist media outlets. Destruction of the Earth and genocide against First Nations Peoples have become accepted norms by dominant populations living in denial of the reality which surrounds them.
With establishment of the World Trade Organization through Free Trade Agreements and the corporatizing of governments, the territorial integrity, which nation states so desperately cherish and protect is now compromised. It is important to understand that Aboriginal Peoples, like the remainder of the nation state’s population have never been consulted by the governments, to gain the peoples’ free, prior and informed consent to have their country’s territorial integrity compromised in the name of commerce and trade. This act by governments and those who participate in it is treasonous and a fraud against its population.
For each of the nation states to argue that the First Nations Peoples’ claim of right through self-determination is a threat to their territorial integrity is an hypocrisy of monumental proportions.
ETHNOCIDE: A CRIME EQUAL TO GENOCIDE
Continuing Sovereignty:
In 1999 a submission was made to the United Nations entitled Australia-The Concealed Colony. It was compiled by senior researchers Frank Coningham, Geoffrey Skelton and Ian Henke with research assistance from the University of Lausanne, the Sorbonne (Paris), the Humbolt University (Berlin), Trinity College Dublin, University of La Sapienza (Rome), the Comlutenso de Madrid, Universities of Oxford and Cambridge, University of Ghent (Belgium) and major American universities of Stanford, Cornell, Berkley and Harvard.
Australia-The Concealed Colony was tabled in the UN explaining that Australia was not a Legal Nation by comparison to other countries and that Australia was only classified as an Independent State by virtue of the fact that it is a Signatory to the UN charter and the Treaty of Versailles.
Since all law throughout the world law is about absolutism and certainty not ambiguity, it is a requirement of the UN to ensure that its Member States are in fact bone fide. Failure to do so is negligence and against the principles of the UN.
Aboriginal Nations and Peoples have never accepted British rule in Australia and this is evidenced by the violent discourse in Australia since British invasion in 1788.
Whilst British Crown has consistently requested, both as a prerogative exercise and written as an instruction to Governors and governments, Aborigines were to be treated as British subjects and afforded the protection of British law this did not usurp our Peoples’ sovereignty.
It is important to have cognisance of the fact that being treated as British subjects and afforded protection of British law in no way compromises the continuing sovereignty of Aboriginal Nations and Peoples in Australia.
Another aspect of the continuing sovereignty of Aboriginal Peoples is the fact that Australian governments recognise it. This is evidenced by the fact that when dealing with Aboriginal people all policies and regimes have been directed towards Aboriginal People as a distinct race where special measures have been adopted. Furthermore past Legislation at State and Commonwealth levels have been, at the first instance, about protecting a race of People from the vigilante ‘Settlers’ who sought to clear the land of Aboriginal Inhabitants.
These laws make Australia the only Country in the world where laws were put in place to protect one race of people from another.
In order to afford protection for Aboriginal People it was necessary to set up government Mission Stations where the authorities, not only attempted to “smooth the dying pillow for a dying race” as it was first thought, but the same Mission Stations, both church and government, became prison institutions where the people had no right of freedom of movement or freedom of association and their personal and social welfare was totally dependent upon government appropriated aid.
The most unfortunate thing about these institutions was once you and your family were committed there was never a release date. It wasn’t until much pressure came to bear from foreign countries, who through various UN Committees sought to be informed on the welfare and well-being of Australia’s Aboriginal Inhabitants, that change began. One such country was Ghana in the 1940s.
It is important for the UN and other countries to know that, in respect of Aboriginal Cultural Heritage. There now exists within Australia laws in every State and territory that vest ownership of our cultural heritage to white bureaucrats and Ministers of the Parliaments.
In Australia the government has interfered with due process and natural justice through the creation of the Native Title Act 1993 and its Amendments through which the government imposed its will upon the independent arbiters of law by interfering with the common law process when determining Aboriginal Peoples’ continuing association with land. Instead of now dealing with the common law rights of Aboriginal Peoples with respect to their Traditional Lands, the government codified and established criteria on how Aboriginal people are expected to prove their continuing association with
By doing this the courts are required to rule on peoples’ access where by Traditional Owners have to demonstrate the exercise of their Customary Practices while living in modern Australia, and all the while knowing that 60% of the Aboriginal population were rounded by Australian Government authorities and removed from their lands under Government Policies. The fact that our people, in many areas, had no right of freedom of movement made it impossible for Aboriginal Peoples of the southeast states to ever have sufficient customary association with their country and all lands were granted to non-Aboriginal farmers and other landholders. The majority of Aboriginal People who were removed under Government Legislation have not had the ability to return to their homelands since the removal of mission control in 1969 for New South Wales and Queensland in 1977.
In modern Australia we continue to have Government Policies that suppress any ability of Aboriginal People to be self-determining. This can be established by an independent study of all laws relating to Aboriginal advancement within Australia.
It goes without saying that the Northern Territory National Emergency Response is a Martial Law type of rule that governs Aboriginal People in a way that dictates all forms of development, social interaction and economic progress for Aboriginal People in the Northern Territory. Similarly, other States do not fare much better as statistics show that approx 70% of the Aboriginal population is 100% welfare dependent. In this regard Aboriginal People have little ability to work their way out of the impoverished conditions they find themselves in, added to the fact that royalties are controlled by the Australian Government not the people.
Education and vocational training
The Australian Government is constantly promoting the theme of education and employment, but these are very ambitious objectives when one looks at the current state of educational programs in this country. The Australian history Curriculum within the schools does not include government policies towards Aboriginal People and the subsequent effect the policies had on our people, such as Government Mission and Station life. The Australian Education Curriculum does not include why the Government chose to remove children under the ‘Stolen Generation’ regime, nor do they explain why Aboriginal people were imprisoned onto Government and Church Mission Stations. They certainly do not include any topics which deal with the violent confrontations with the free ‘settlers’ and the British militia during the colonial times, whereas massacres are becoming well documented in various recent publications.
In relation to the low achievement rate of Aboriginal People in the Education System, the Australian Government continues to ignore the fact that many Aboriginal People are rejecting the Education System, because it has little or no relevance to their current status in life. This is reflected in low school attendance, absenteeism and the high juvenile crime rate. This converts to civil disobedience in the community where Aboriginal People see themselves as outsiders and not belonging.
Fly-in observations of the Aboriginal situation in Australia cannot do justice to the deeply rooted problems that Aboriginal Nations and Peoples confront daily. In order to understand the dilemmas of Aboriginal People it is absolutely imperative that complete and in-depth studies are conducted on the entrenched racism that is so deeply rooted in the psyche of Australian politics. This racism is reflected in all policies directed at Aboriginal Peoples’ advancement, which is completely underpinned by the governments’ objective for the eventual total assimilation of Aboriginal People. This can only mean ethnocide. Ethnocide is a notion that even the UN refuses to acknowledge. But in order to do justice for Aboriginal People, the main thing the UN can do for us is to make Ethnocide a crime equal to Genocide and ratified by every Nation throughout the world to prevent Australia from refusing to become a party to that convention. There can be no excuse for Ethnocide, just as there is no excuse in law for murder and Genocide.
Treaty negotiations
Attached is an earlier paper entitled: That Word – Treaty. It is important to understand how in Aboriginal society one nation cannot speak for another, whilst it is a practice used in Australia to break up Aboriginal unity.
This is confirmed when we trace back to a letter from the then Minister for Aboriginal Affairs, Mr Baume, written to the National Aboriginal Conference (NAC) in July 1981 that Aboriginal people cannot be permitted to develop like American Indians with self determination This is the reason why the treaty process was shut down.
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