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The Sovereignty Debate - Aboriginal and White Australia

A statement on the current sovereignty debate - Aboriginal Australia, White Australia By Michael Anderson © - Goodooga, northwest NSW, 5th January, 2012

This is not a debate about the legitimacy of either or. This is a debate about the need to conclude a messy and genocidal history. It is about working together to get it right and to settle grievances and disputes in a fair and just manner.

It can become ugly, but only if the dominant society rejects outright our legitimate claim to continuing sovereignty and dominion over our lands, natural resources and the naturally occurring biodiversity.

Over the millennia conflicts have come and gone and always at the end settlements through negotiations are agreed to. This debate and confrontation can end just as easily as it started, but we must all agree to talk and negotiate in order to locate peaceful and lasting settlements if we are to become an Australian society unified in common purpose and cause, always respecting each other’s background, religious beliefs and right to say NO to the destruction of Mother Earth.

We can prosper with great effect if we commit to protecting Mother Earth, which must be one of our pre-negotiation agreements and commitments.

The substantive issues of our continuing sovereignty and dominion

1.00 The response of the NSW governor’s office to my letter of 14th November 2011 was not surprising; in that latter I requested a copy of the NSW proclamation of the ‘Order in Council’ in respect to Queen Victoria’s recognition and affirmation of Aboriginal sovereignty and dominion over our lands.

In a letter dated December 8th, signed by the Official Secretary and Chief of Staff, Mr. Noel Campbell said that the Governor’s Office does not keep records dating back to 1875 but advised that we should consult the NSW State Records Authority. He then concluded the next paragraph by saying that both Acts were repealed by virtue of the Commonwealth Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999.

1.01 In response, I wrote the following:

I am well aware of the Commonwealth Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999. I can only assume that given your response, the New South Wales attorney-generals have failed to inform you of the international law relating to conventional practices and international laws that preclude one state from repealing an Act of another sovereign parliament. Moreover, the Commonwealth Criminal Code Amendment Slavery and Sexual Servitude Act of 1999 merely repealed the Pacific Islanders Protection Acts of 1872 and 1875 respectively so that they are no longer on the public records.

1.02 This I can understand. However, the purpose and intent of each of these Acts and their effects remain and have not been affected.

Treaties and the import of new law/laws

Furthermore, the New South Wales Attorney-General’s office has also failed to inform you of the Australian High Court decision in ‘Minister of State for Immigration and Ethnic Affairs v Teoh’ [1995]. At the conclusion of this High Court’s ruling, there was a joint press release, published in print media throughout Australia, part of which said:

1.03 “JOINT STATEMENT BY THE MINISTER FOR FOREIGN AFFAIRS, SENATOR GARETH EVANS, AND THE ATTORNEY-GENERAL, MICHAEL LAVARCH

M44

10 May 1995

INTERNATIONAL TREATIES AND THE HIGH COURT DECISION IN TEOH

This statement is to clarify the Government's position following the High Court's recent decision in the Teoh Case. That decision concerned the way in which administrative decisions are made under the Migration Act but could have implications for the way the provisions of a treaty may operate in Australian law generally.

Prior to the High Court decision, it was established that ratification of a treaty did have some, albeit limited, significance in Australian domestic law - the treaty provisions could be used to resolve an ambiguity in legislation; could provide guidance on the development of the common law, particularly where the treaty declared universal fundamental rights, and could quite properly be taken into account in the exercise of a discretion by a decision-maker under legislation without the decision being invalidated as a result.

However, it was also clearly established in a succession of High Court cases that treaties entered into by the Australian government, while creating rights and duties as a matter of international law, did not form part of Australia's domestic law unless and until they had been so incorporated by legislation, and could not give rise to rights and obligations unless they were so enacted into law.

The High Court reaffirmed in Teoh that provisions of treaties do not form part of Australian law unless they have been incorporated by legislation. At the same time, however, the Court developed a new way in which treaties could affect some administrative decisions. The High Court held that merely entering into a treaty could give rise to a legitimate expectation that government decision-makers would make decisions consistently with Australia's obligations under the treaty. It was not necessary for any legislation governing the decision to refer to the treaty. Indeed the provisions of the treaty could apply even where the person affected by the decision did not raise - or even know about - the treaty in question. This was the case in Teoh itself, where the Court decided that there was a legitimate expectation that the decision maker under the Migration Act would take the relevant Article of the Convention on the Rights of the Child into account in coming to a decision not to give resident status, notwithstanding that the applicant did not know about the Convention and the decision-maker did not raise it.

It may be only a small number of the approximately 920 treaties to which Australia is currently a party that could provide a source for an expectation of the kind found by the High Court to arise in Teoh. But that can only be established as individual cases come to be litigated. In the meantime, the High Court decision gives little if any guidance on how decision-makers are to determine which of those treaty provisions will be relevant and to what decisions the provisions might be relevant, and because of the wide range and large number of decisions potentially affected by the decision, a great deal of uncertainty has been introduced into government activity. It is not in anybody's interests to allow such uncertainty to continue.

For that reason, the Government is taking action to restore the position to what it was understood to be prior to the Teoh Case.

This action is of the kind foreshadowed by the High Court itself. In its judgment, the Court acknowledged that the expectation in question can be displaced by 'statutory or executive indications to the contrary': there can be no legitimate expectation if the actions of the Parliament or the Executive are not consistent with that expectation. So far as the Executive is concerned, the Court made it clear that it was open for Government to make a statement about the effect that the obligations undertaken in international law by reason of treaty ratification are intended to have in the domestic law of Australia.

We now make such a clear and express statement. We state on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join. The Government intends to legislate to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations. We will be seeking approval for the necessary legislation to be introduced into Parliament later in these sittings. In the meantime, this statement has been issued to avoid, to the fullest extent possible in the circumstances, the inevitable uncertainty flowing from the High Court decision.”

I have included this statement because it raises a number of key issues.

1.04.1 On the question of assimilating a set of rights into Australian law, there can be NO doubt nor question as to the intent and purpose of sections 7 and 10 of the Pacific Islanders Protection Acts 1872 and 1875 in respect to Britain’s recognition of the “independence of Aboriginal sovereignty and dominion over our places (land)” and its application to the state colonies at the time.

1.05 I base this statement on a legal fact. When we read section 7 of the text of the original and real Pacific Islanders Protection Act 1875, clearly there are no ambiguities. A copy of this document is located on the records in the Office of the Parliamentary Council at Whitehall, London. To quote:

“Nothing herein or in any such Order in Council contained shall extend or be construed to extend to invest her Majesty and her heirs and successors 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 ensuring session.”

1.06 During my visit to London in December 2011 to locate the original copy of the Pacific Islanders Protection Act 1872 and 1875, its bills and its purpose, I was advised that with respect to an ‘Order in Council’, it is in itself “absolute law” when it comes from the monarch exercising their ‘prerogative powers’. In this regard it is important to know that an ‘Order in Council’ can come from two sources;

1. From the advice of the Lords Spiritual and Temporal, and Commons to the monarch, or

2. by the reigning monarch exercising of the royal ‘prerogative’.

“An ‘Order in Council’ becomes “Absolute Law” within the common law of the places [colonies] where it is intended to be applicable.”

1.07 Therefore, unlike a treaty, the Pacific Islanders Protection Acts of 1872 and 1875 respectively, both having their genesis in the British parliament and by the ‘Order in Council’ of the reigning monarch, became part of the domestic law of the colonies in New South Wales, Victoria, South Australia, Tasmania, Queensland and Western Australia, as well as New Zealand and other islands in the Pacific where Britain was exploring and laying claim to various dominions.

1.08 For the purposes of this debate it is essential to understand and have cognizance of the effects of the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63). This is an Act of the parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws".

1.09 (i) As stated in the internet by the Wikipedia group, The purpose of the Act was to remove any apparent inconsistency between local (colonial) and British ("imperial") legislation. Thus it confirmed that colonial legislation (provided it had been passed in the proper manner) was to have full effect within the colony, limited only to the extent that it was in contradiction with ("repugnant to") any Act of Parliament that contained powers which extended beyond the boundaries of England to include that colony. This had the effect of strengthening the position of colonial legislatures, while at the same time restating their ultimate subordination to the Westminster Parliament.

(ii) Until the passage of the Act, a number of colonial statutes had been struck down by local judges on the grounds of repugnancy to English laws (whether or not those English laws had been intended by Parliament to be effective in the colony).

(iii) By the mid-1920s it was accepted by the British government that the Dominions would have full legislative autonomy. This was given legislative effect in 1931 by the Statute of Westminster which repealed the application of the Colonial Laws Validity Act to the dominions (i.e. Canada, the Irish Free State, New Zealand and Newfoundland, and the Union of South African State).

(iv) The Statute of Westminster took effect in Australia in 1942 with the passing of the statute of Westminster Adoption Act 1942 with retroactive effect to 3 September 1939, the start of World War II. The Colonial Laws Validity Act continued to have application in individual Australian States up until the Australia Act 1986 came into effect in 1986.”

2.00 It certainly would not be in the interests of the federal and or state/territory governments to attempt to argue that each of the colonial states failed to proclaim the law (‘Order in Council’) arising from the Pacific Islanders Protection Acts because the Order in Council is prescriptive and unequivocal. At this time the governors were responsible for carrying out all such ‘Orders in Council’, according to the Letters Patent, which call upon the appointed governors of the states to call together a parliament. The Letters Patent are the only authority that gives Australian states and federal governments their legitimacy. In this case the governors were and continue to be extensions of the English monarch by proxy, which placed a legal obligation on them to have these 1872-75 Acts proclaimed in each of the colonial states.

Separation of powers

2.01 The Australia Act of 1986 clearly establishes the formal separation of powers between Australia and the United Kingdom’s parliament and the UK’s legal institutions, amongst other things.

2.02 The fundamental legal principle established by the Australia Act 1986 is that after the coming into effect of this Act it says at section 3. (2) “No law and no provisions of any law made after the commencement of this Act by the parliament of a State shall be void or inoperative on the grounds that it is repugnant to the laws of England, or to the provisions of any existing or future Acts of the parliament of the United Kingdom or to any order, rule or regulation made under any such Act, and the powers of the parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State.” /i>

2.03 In respect of repeals of the Pacific Islanders Protection Acts, the Australian federal government along with each of the states and territories as a consequence of the 1986 Australia Act can now repeal an Act of the British parliament that remains on and in Australian statutes. In the case of the Pacific Islanders Protection Acts of 1872-75 the Australian federal government has repealed both Acts so that in 1999 they were no longer on the public records. But the effects of the Pacific Islander Protection Acts remain law.

2.04 This is confirmed from the study of each of the repeals both in the United Kingdom and Australia of the Pacific Islanders Protection Acts of 1872 & 75 as the legal effects are and have been preserved.

2.05 The problem that the Australian parliaments have, however, is their inability to diminish the legal effects of the original Act from Britain, despite Australia gaining its autonomy from the British parliament and its legal institutions. The Australia Act of 1986 did not alter the purpose and effects of the intent of the laws that came from England during the colonial period. In fact our sovereignty and dominion continue to be preserved.

2.06 Unlike an international treaty, the Pacific Islanders Protection Acts 1872-75 do apply to each of the states identified in the Act and there is no reason why it would be necessary to have a debate about “legitimate expectations”. The terms of the Acts, intended for each of the Australian colonial states including New Zealand through the ‘Order in Council’ constitute absolute law and the fact that there is a specific ‘Order in Council’ at section 10 of the same Pacific Islanders Protection Acts 1872-75 to have it proclaimed within each of the colonial states and New Zealand sets apart any arguments that may arise in respect of its intended purposes to apply to Australian and New Zealand domestic law.

2.07 So what does this mean for Australia and New Zealand? It is my interpretation that if we are to follow the reasoning of former Foreign Affairs Minister, Gareth Evans, and his counterpart, the Attorney-General, Michael Lavarch MP, it is of NO consequence as to whether the parliaments of the states failed to introduce their own laws in respect of the confirmation of Aboriginal sovereignty and dominion over their places. It is a legal fact that the Pacific Islanders Protection Acts 1872-75 created unequivocally and in unambiguous terms the law that Aboriginal sovereignty and dominion over us and our places are and continue to be universal in English common law, a law that had to be observed by each of the colonial states.

2.08 The Pacific Islanders Protection Acts of 1872-75 were not a set of laws that could be left up to the exercise of discretion of the leadership of each of the states. The Pacific Islanders Protection Acts were laws that were themselves created by the same parliament and monarchy that gave each of the Australian states and the federal government their own legitimacy without a revolution as happened in the United States of America. Unfortunately this permits leaders like the former prime minister, John Howard, to say, “Australia was a country that developed by peaceful settlement”, which in turn permits the Australian state and federal governments to suppress the true history of the Aboriginal resistance and the violence that went with this resistance and that to this day continues, in particular the violence from the states themselves.

A question of repeal

2.09 On the question of the law today, given that each of the Pacific Islanders Protection Acts of 1872-75 have now been repealed both in England and Australia.

3.00 Let me first address the repeals that have occurred in the English parliament.

a) When we read the Statute Law (Repeals) Act 1986. {1986 Chapter 12} we must have legal cognizance of the following text therein.

Paragraph one says, “An Act to promote the reform of the statutes law by the repeal in accordance with recommendations of the Law Commission and the Scottish Law Commission, of certain enactments which (except in so far as their effects are preserved) are no longer of practical utility, and to make other provision in connection with the repeal of those enactments.” [2nd may, 1986]

b) Paragraph 2 states; BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in the present Parliament assembled, and by the authority of the same as follows-

Part 2 at (4) of page 1, establishes the following; “Subject to Subsection (3) {which deals with the repeal of The dentist Act 1878 and Medical Act 1886 only} above, this Act does not repeal any enactment so far as the enactment forms part of the law of a country outside the British Islands; but Her Majesty may by Order in Council provide that the repeal by this Act of any enactment in the Order in Council shall on a date so specified extend to any colony”.

3.00 It is therefore imperative that we as sovereign Aboriginal nations have particular cognizance of the English parliament’s Statute Law (Repeals) Act 1986. {1986 Chapter 12} and I emphasise that which is cited above: “An Act to promote the reform of the statutes law by the repeal in accordance with recommendations of the Law Commission and the Scottish Law Commission, of certain enactments which (except in so far as their effects are preserved) are no longer of practical utility, and to make other provision in connection with the repeal of those enactments.” [2nd may, 1986]

3.01 I now address the John Howard government’s repeal of the Pacific Islanders Protection Acts of 1872-75. Australian Parliamentary Hansard 1999 recorded that the Pacific Islanders Protection of 1872-75 Acts were of no further use and should no longer be on the public records. It needs to be noted that this repeal does nothing to affect the continuing sovereignty and/or dominion as there are no specific sections and/or clauses that have impact, impairment or the suggestion of the abolition of these lawfully recognized rights.

The Australia Act 1986 and Australian independence

3.02 The principal difference between the Commonwealth and UK versions of the Australia Act lies in the reference, appearing in the long title and preamble to the Commonwealth version but not present in the UK version, to Australia as "a sovereign, independent and federal nation. While this might be understood as a declaration of independence, it can also be understood as an acknowledgement that Australia was already independent, leaving open the question of when independence had been attained. There is no earlier declaration or grant of independence”.

3.03 At no material time has any of these alterations, amendments, repeals and/or declarations, etc, mentioned the abolition of the continuing sovereignty of our people nor has any law been created to rescind Aboriginal dominion over our lands, waters, natural resources and the naturally occurring biodiversity of our lands and waters.

3.04 From this analysis I propose the following considerations:

(a) At what point does the Australia Act of 1986 and/or any other law or known ‘Order in Council’ diminish the legal recognition of Aboriginal sovereignty and takes away by law our dominion over our lands, water, nature resources, gas, oil and our biodiversity naturally occurring within and throughout our dominions if there are no specific words to this effect?

If they did this, then our question is, where, when and how did we lose our sovereignty and dominion?

3.05 If this question can be answered and the law/laws are identified then we ask the following questions:

1. On what date did this happen?

2. What are the terms of this/these law/laws?

3. Where is/are the prior and informed consent treaty/treaties?

4. What, if any, compensation and/or restitution has been agreed to by all parties?

5. Along with all the other questions that do come to mind that are too many to list here.

WHAT AND WHERE TO FROM HERE

THIS IS OUR CHOICE

Actions

There are many forms and types of actions that we could take and initiate, but this is something that I recommend we do as United Sovereign States from within Australia. To do otherwise will be detrimental to all of us as sovereign peoples and sovereign nations.

Lets Talk! (to use brother Tiger Bayles’s radio talkback quote)