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Talkin’ bout a Treaty Republic

By Graeme Taylor

As someone who voted “Yes” to a referendum in 1999, I’m pleased that it didn’t pass, not because I don’t think that Australia should become an independent country free from the British Crown, but because that last referendum would not have got us there.

For a brief re-cap…

Soon after the Mabo decision in 1992, the Monarchists appointed Tony Abbott to head up their team to defend the Monarchy. In response, PM Keating appointed Malcolm Turnbull to represent the Republic side; the Australian Republic Movement.

At this time, neither of these Rhodes Scholars had been in Parliament, nor been Ministers of the Crown.

Abbott had been a student, a seminarian, a journalist and a political advisor. Turnbull had been a barrister, merchant banker and investor.

Turnbull promoted the idea that a referendum could vote out the Monarchy. It sounds a bit like a Monty Python idea, that plebs in a kingdom could vote out the king, but that’s what happened and I was voting for it.

Now, 30 years later, this idea is still entrenched in many people’s minds, but it’s a nonsense.

The Queen, in her gracious self said; “It’s a matter for the Australian People,” which was interpreted to mean that a successful Referendum would have meant an independent Australia, but what ties Australia to the British Monarch is a far more complex thing than we have been led to believe. “It’s a matter for the Australian People” can mean a multitude of things, but we were all led down the referendum path.

Some history of Settler State Australia…

In two fell swoops, King George the 3rd became the sole owner of all the lands now known as Australia, the eastern half, in Instructions to Governor Phillip, April 1787, and the western half 40 years later.

The process of settler colonialism is to set up a Land Registry and start granting out the lands in a form of Property Title, while the Crown maintains the ultimate “Allodial title“, and the land holder gets a “bundle of rights” for the land they hold the title to. Every property title in Australia has been granted by the Crown, and as the Mabo decision determined, it was done as if the lands had been Terra Nullius, which they determined was wrong at law.

Unlike the other British settler colonial states of New Zealand and Canada, at least the High Court has determined that the British Monarch’s claim is wrong here. But property titles are mostly state and territory issues, which seem to have been glossed over by Australia’s republicans.

As to the more political ways in which the Monarch has control over the affairs of the parliaments in Australia, there are a number of protocols and oaths which most Australians know nothing about. We get to see politicians and ministers being sworn into their roles on the TV. But it’s what is not seen by the public is where the real influence and interference by the Palace can occur.

In the Constitution, one of the lesser known sections is Section 59:

The Queen may disallow any law within one year from the Governor-General’s assent [my bold], and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.”

It sits there as if some archaic provision that has never been used, but it barely rated a mention in 1999, and I’m not sure there was even an intention to remove it.

Rather than see Section 59 as a benign antiquated section in the Constitution, there’s a reason it’s never been invoked. Sections 61 to 64, to wit:

61: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

62: There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

We don’t hear much about the Executive Council.

It’s different to the Executive Government, and it’s different to the Cabinet.

To be a member, one has to make an oath; an oath which is not in the Constitution. An oath that cannot be changed by a referendum.

Some PMs have tried to update this oath, the most recent being:

“In April 1993, Prime Minister Paul Keating simplified the wording of the Executive Councillor’s oath and affirmation. The following wording was introduced by Paul Keating and used by Prime Ministers Howard, Rudd, and Abbott:

Executive Councillor’s Oath

I, [NAME], being chosen and summoned by the Governor-General of the Commonwealth of Australia to be a member of the Federal Executive Council, do swear that I will, when required, advise the Governor-General (or the person for the time being administering the Government of the Commonwealth of Australia) to the best of my judgment, and consistently with the good government of the Commonwealth of Australia, and that I will not disclose the confidential deliberations of the Council. So help me God!”

It’s quite an interesting read in the section titled “Member of Federal Executive Council”, with a bit of the history, and how Malcolm Fraser had explained that it was based on the Oath of the Privy Council in Britain.

Without going down the rabbit hole of the 500 years of the Privy Council, one may have recently learnt that is has 670 living members, and only 200 could get a seat at one of the recent ceremonies commemorating the late Queen Elizabeth 2nd. Once a member, it’s for life, or until the Monarch’s pleasure becomes displeasure.

I believe it’s the same in Australia with the Executive Council, but because what is discussed is secret, one can’t be sure.

My best guess as to its purpose, since it’s a purpose not mentioned anywhere, is to ensure that the Monarch doesn’t ever have to invoke Section 59 and annul legislation already passed by Parliament and already given Royal Assent by the GG (or the Governors in the states of Australia).

From what I have gleaned in researching the Executive Council, it’s seen as a courtesy, a protocol, where a Minister of the Crown, in company with at least one other Minister, seek permission for bills they wish to introduce to Parliament, permission from the Guvna, and those discussions must remain secret. I dare say that most times it’s just a formality but maybe not always.

The British Guardian ran a series of articles in 2021 about Queen’s Consent, a protocol where the Queen gets advance notice of Bills in the her UK Parliaments. Queen’s Consent is mainly about the private estates, palaces, secrecy of tax affairs and private wealth, personal property.

Did I mention how the Monarch owns all of the lands of Australia?

Anyway, the Executive Council appears to be the colonial equivalent to both the Privy Council and Queens, oops, King’s Consent.

Its Oath, and the goings on inside the Executive Council are outside the Constitution, as is the correspondence between the Palace and the Monarch’s Representatives in Australia, which Professor Jenny Hocking has recently discovered to be difficult to obtain in her fight to access “The Palace Letters”.

It’s a complex web that’s been cast by the British Crown, which helps explain its longevity as an empire. We are fortunate in Australia to have the High Court inferring that the Monarch’s claim was faulty, and that these lands Always was, Always will be, Aboriginal Lands. Thus I see it as imperative that we start with treaties, before this “Voice” being embedded into the belly of the beast, which will only strengthen the Monarch’s claim over Australia.

If you’ve been watching Australian politics for a while, you may have noticed that Ministers of the Crown become far more circumspect, hesitant and deliberative in their speaking once they become Ministers. They’ve got to be extra careful they don’t spill, not just the political beans, but those other beans discussed as well.

Personally, I know I live on the lands of the Kulin Nation, east of Naarm, Melbourne, and the British Crown’s claim is faulty.

We need to start listening to the traditional owners, who are currently in a major power imbalance with the British Empire, and to decide which side we are on.

The settler state was structured so as to make the sovereigns of the soil the enemy of the settlers, and they were framed by orders from Britain as if fauna, as if sub-human, as if not deserving of their own languages, cultures and lands. We’ve mostly moved on from there, thankfully, but it’s been slow going. (Uncle Archie, Uncle Jack, this is for you).

Australia will be more comfortable in the world and with our decolonised neighbours, once we address the elephant in the room.

What’s needed is a ‘Treatied Republic’, but perhaps because of the constraints of their Oaths of Office, and with all the other strings attached to His Majesty’s Ministers, the current Labor Government looks headed the other way, with their push for a “Voice” first, incorporating Aboriginal and Torres Strait Islanders into the body of the beast. It will only consolidate the King’s position.

In 234 years of occupation initiated by Britain, the First Nations People have never been offered purchases, rentals or treaties, nor been asked for their free, prior and informed consent. It’s all been done on the assumption that all the lands already belong to the King of England, which is why the governments here get the free, prior and informed consent of the Monarch’s Representatives.

To legitimise the settler state by giving it a proper legal foundation, rather than be ‘By Right of King Charles the 3rd’, there needs to be treaties first and foremost, perhaps requiring international monitoring.

Constitutional assimilation into the Crown by way of this “Voice” will only entrench the settler state as a colonial outpost of Empire.

Back in 2008, PM Rudd, at his 2020 Summit put the Republic in one box, and Indigenous issues in another, yet republic and First Nations People are inextricably linked.

Constitutional recognition was first touted by John Howard prior to losing the 2007 election, then copied by Rudd, Gillard, Abbott (who swore to sweat blood for it) sponsored by Miners, the AFL and NRL under the banner of “Recognise” and now the new Labor Government is still pushing it, whilst keeping the republic as a separate issue, as if unrelated.

Whose land is this republic supposed to operate on? The King of Britain’s land, or Aboriginal Land?


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  1. New England Cocky

    ”In 234 years of occupation initiated by Britain, the First Nations People have never been offered purchases, rentals or treaties, nor been asked for their free, prior and informed consent. It’s all been done on the assumption that all the lands already belong to the King of England, which is why the governments here get the free, prior and informed consent of the Monarch’s Representatives.”

    Graeme Taylor; you have hit the nail right on the head. The English claim to Australian land title was imposed by the English without the consent of the Aboriginal persons of that time who were the beneficial landholders, and so is likely legally flawed.

  2. Canguro

    If it is the King of Britain’s land, and assumed to be so, whether by inertial consent, indifference to present day sensibilities, obeisance to a frocked-up monarch occupying the role by pure fluke of birth, scratched up documents meant to signify right of possession, agreement and consent amongst a gang of thieves or otherwise, then it’s stolen land, looted from its original carers. Prima facie, it’s theft. Is this acceptable in this modern era of sensibility & sensitivity? It seems an impossible notion to defend.

    Patti Smith’s take on Beds are Burning…

  3. New England Cocky

    Interesting points Canguro. I am reminded that Aboriginal activist Burnum Burnum in 1988(?) travelled half-way across the world to claim sovereignty over a little worn out island off the east coast of Europe. Few mineral resources, lots of poor people and little political hope of improvement for the inhabitants. The name was United Kingdom, although I am uncertain whether he was required to claim each of the component countries individually rather than as a whole group claim.

  4. Canguro

    Cocky, this question of ownership is a can of worms left in the sun and now festered and stinky. Burnum Burnum’s 26th January 1988 claim on England was a mirror image of Cook’s claim on the southern edge of Botany Bay 200 years earlier, but unlike Cook he wasn’t able to see his claim overturn thousands of years of inhabitance and curatorship by the local tribes.

    To put such a position, viz. the falsity of legitimacy of ownership, to the predominantly Anglo-Saxon & European landholders today, estimated at around 87,000 (ABS 2021) with close to 136,000 registered farms (Wiki), one is almost guaranteed to provoke a reaction akin to poking wasps’ nests with a stick. They have, of course, documents that prove they are rightful landholders. As do regional and city householders. The legitimacy of the documents remain untested when scutinised to the ‘nth degree’.

    I’m sure the finest minds that consider these matters would concede it’s impossible to unwind what has been wound. The tragedy is that, conceding the injustices laid upon our indigenous forebears, we’ve done so little to ease their suffering by way of reparation, continuing to this day to accommodate racism, abysmal levels of healthcare & housing support as well as poor deliverance on things like education & employment. The current inquiry into the death of Kumanjayi Walker has again lifted a scab and revealed an appalling level of discrimination and disregard for these earliest inhabitants of ‘Terra Nullius’.

    We’re not alone in this behaviour… it seems all colonists after the initial act of usurpation continue on a path of ongoing brutalising of the conquered. The British behaved thusly in Africa and India, the Belgians in the Congo, the American colonists set to annihilate the native North Americans, same in South America by the Spanish and Portuguese, the French in North Africa and East Asia… white mans’ cruelties seem to know no bounds in their arrogant assumption that those that differ in skin colour and custom are deemed inferior & disposable… a point well made in Sven Lindqvist’s Exterminate all the Brutes (1992), and more recently in Raoul Peck’s 2021 4-part documentary of the same name.

    George Bernard Shaw is supposed to have said that “If the other planets are inhabited, they must be using the earth as an insane asylum”. Not hard to disagree, when you look at how things pan out, the sufferings meted to the millions by the few.

  5. leefe

    This is the first time I’ve read something that does make me question the issue of The Voice. If this is the reasoning behind Lidia Thorpe’s resistance to the referendum proposal, I have to agree with her.

    It’s time to stop the endless round of talkfests and get things done. Treaty first, then referendum? I don’t know enough about the legal implications to judge the appropriate order, but those two things are essential to deal with the inequality and disadvantage within the Aboriginal communiity.

  6. New England Cocky

    Oops!! Silly me ….. The UK is ”the little worn out island off the west coast of Europe”.

    @ Canguro: Yes, I agree, it will be difficult ….. but not impossible.

  7. RoadKillCafe

    Canguro, yes, this is the case, this is the insane asylum of the universe, we have been consigned here to live life after life in the hope of finding what we have forgotten, what we have lost. It would seem the experiment comes to a close. Can those that have found themselves be able to help the rest of us? We see.

  8. New England Cocky

    @ Canguro: “They have, of course, documents that prove they are rightful landholders. As do regional and city householders. The legitimacy of the documents remain untested when scrutinised to the ‘nth degree’.”

    I am reminded that NSW then Premier Mike Baird sold the NSW Land Titles office to a consortium of banks for a job reported to be worth $2 MILLION. As a consequence, NSW land titles are no longer hard copy and proprietorship now relies upon proof of identity. This system is seriously flawed for several reasons and computerised land titles have already been shown fallible to fraud.

  9. L. S. Roberts

    Aboriginal land, always was …..

    I can see this one going in the ‘too hard basket’ or at best The Back Burner.

  10. wam

    Don’t remember reading abut a pommie treaty that wasn’t a pretty piece of paper that gave the white poms the land and the indigenous the bible and ‘peace in our time’..
    I voted no and will continue to vote no until there is a proposal with enough information to show me for what I am voting.

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