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We’re the Voice

Later this year there will be referendum held for the nation to vote on a simple constitutional amendment, namely should there be a First Nations voice in Federal Parliament regarding legislation which affects them (‘the Voice’)?

I will be voting yes for the Voice. I implore all Australians to also vote yes so that we, as one country, can start chartering a final course into the future of proper reconciliation with First Nations Australians; a reconciliation our descendants may subsequently look back upon with pride in 100- or 200-years’ time to say “2023 is truly a year when our ancestors came together to put in place the first foundation stone of the Uluru Statement from the Heart (‘the Uluru Statement’).” The referendum will be a moment in time in which we, as a society from many different lands, may take responsibility as one people to make amends for the past acts of our ancestors for imposing a foreign system of law upon a 65,000-year-old society of people that was based on the pretence of a legal fiction these lands in 1788 were terra nullius.

Before embarking upon a short examination of our past history which informs the need for us vote yes at the referendum later this year, may I address a point of legal fiction that some the people in the dissent to the Voice continue to raise, namely the misconceived ‘Third Chamber’ argument. The ’Third Chamber’ argument has been previously dismissed by the erudite Professor Anne Twomey in 2019, as the Voice would have no power to initiate, pass or reject bills.

Professor Twomey quite properly refers to other bodies which already inform Parliament, that include the Productivity Commission, the Australian Law Reform Commission and the Auditor-General. These bodies are not a ‘Third-Chamber’, and the Voice’s role would be no different to these other bodies. I shall return to Professor Twomey’s article at a later stage of my discussion herein regarding the reasons why the Voice must be enshrined in the Commonwealth Constitution.

The High Court of Australia (‘the High Court’) in 1992 handed down its judgment in Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’). The High Court’s reasons for judgment in Mabo awakened the nation’s mind from its slumber in relation to how European settlement of this country had not only dispossessed First Nations people from the use of their lands, but also imposing upon First Nations people the common law which so materially changed their lives.

I do not wish to address the land law components of the High Court’s reasons for its judgment in Mabo, as it would essentially require an essay to be drafted on my behalf which would be an unnecessary distraction from the subject under consideration. I do, however, wish to focus your minds on the passages of Mabo written by Brennan J (as His Honour Sir Gerard Brennan then was (and for the purposes of this article I shall, out of immense respect, refer to the late former Chief Justice of the High Court by his title of Sir Gerard Brennan)) and the joint judgments of Gaudron and Deane JJ.

In his elegantly written reasons for judgment Sir Gerard Brennan relevantly identified the injustice First Nations Australians suffered under the common law, namely at:

1) paragraph 28 in which His Honour stated, “According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned.”

2) paragraphs 36, 39 and 42 Sir Gerard Brennan explained the injustice of the early settlers of this nation relying upon on the legal principle of terra nullius to acquire these lands and impose the common law upon First Nations people:

a. “[36] The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a “desert uninhabited” country. The hypothesis being that there was no local law already in existence in the territory … Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were “an uninhabited country … discovered and planted by English subjects.” (Abridged)

b. “[39] As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organization”, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was “no other proprietor of such lands”… The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs.” (Abridged)

c. [42]… The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.” (Abridged)

The passages of Sir Gerard Brennan’s reasons for judgment in Mabo informs the nature of the injustice of the imposition of the common law on First Nations Australians. Indeed, the whole notion of our ancestors’ discriminatory denigration of First Nations Australians, their social organisation and customs to thereby impose the common law upon them is a factual matter of European settlement (and other cultures) since 1788 we cannot ignore when it comes to our contemplation as fair-minded people of affording First Nations Australians a proper voice to be heard regarding laws which affect them. Nevertheless, in Mabo the injustice of the imposition of the common law on First Nations Australians are also further informed by the joint judgment of Gaudron and Deane JJ, in which their Honours said at paragraph:

1) “[37]As has been said, it is clear that the numbers of Aboriginal inhabitants far exceeded the expectations of the settlers. The range of current estimates for the whole continent is between three hundred thousand and a million or even more. Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. Their laws or customs were elaborate and obligatory. The boundaries of their traditional lands were likely to be long-standing and defined.” (Abridged)

2) “[55] Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aborigines, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession…” (Abridged)

3) “[56] As has been seen, the two propositions in question provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. In these circumstances, the Court is under a clear duty to re-examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. The lands of this continent were not terra nullius or “practically unoccupied” in 1788. The Crown’s property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.” (Abridged).

For the avoidance of doubt or opprobrium from those with mendacious intent towards the Voice (or indeed, me), their Honours Gaudron and Deane JJ did say within paragraph 78 of their joint judgment their use of emotive language was not for the purpose of trespassing into attribution of moral guilt, nor is that my intent in quoting the various reasons for judgment of Sir Gerard Brennan and Justices Gaudron and Deane. My purpose for raising these passages of the reasons for judgment in Mabo is to reawaken the collective conscious of this nation as to the injustice of the imposition of 234 years of common law on First Nations Australians when for almost 65,000 years they had developed their own system of law, a law which was relied upon as long ago as 1841:

 

Was Australia invaded or settled?

 

In 1967 the Holt Government commenced the first steps for righting the wrongs of the past by succeeding with a referendum which included, inter alia, including First Nations Australians in the census. In 1975 the Whitlam Government enacted the Racial Discrimination Act 1975 (Cth) (‘the 1975 Act’), that not only provided redress for present abuses and past injustices, but also, as Mr Whitlam so put it “to build a climate of maturity, of goodwill, of cooperation and understanding at all levels of society”. The role of the 1975 Act in underpinning native title was confirmed in Mabo. However, the 1975 Act remains vulnerable to the whim of the Federal Parliament:

The High Court’s judgment in Mabo awakened the Australian public’s collective social conscious from its slumber, that we, as settlers from 1788 and the years which then followed, had unjustly imposed upon a civilised society of 65,000 years in the making the common law which so adversely impacted their lives thereafter. Subsequently Paul Keating’s ‘Redfern Speech’ stirred the nation’s emotions to embark upon the necessary steps of our journey towards proper reconciliation with First Nations Australians, and in 2008 we as a united country said sorry to the Stolen Generations of First Nations Australians.

Now we venture forward on our next step towards proper reconciliation with First Nations Australians, namely building a bridge between the common law and the 65,000 years of First Nations’ law and custom, by enshrining in the Commonwealth Constitution the Voice. Those politicians who have uttered their dissent, either expressly or by implication to the Voice thus far have not conveyed any compelling reasons for not voting yes. Those politicians uttering their dissent are various members of the federal opposition.

Senator Price has provided two reasons for not voting yes which are counterintuitive or incompatible with the step of ameliorating the legal injustice of the imposition of the common law upon First Nations Australians since 1788. Senator Price’s first argument is the Voice will not address the economic indifference in society between First Nations Australians and those Australians who have settled here. The argument is incompatible with the historical facts of Mabo referred to herein, as it was the unjust imposition of the common law on First Nations Australians which has led to the current economic disparity in our society between First Nations people and settlers from 1788 and thereafter. Notwithstanding any federal or state laws which have been passed since the 1967 referendum, we as a nation have not properly recognised the laws and customs of First Nations Australians which existed up to 26 January 1788, and it is the constitutional consultation with First Nations Australians by virtue of the legal recognition of the Voice in the Commonwealth Constitution which then consequently leads to the restoration of legal, cultural and economic equanimity for First Nations Australians. The restoration of economic equanimity for First Nations Australians is not to be judged on European standards alone, as First Nations law and custom had a far more refined and civilised measure of achieving economic equanimity which included, inter alia, an environmentally friendly use of resources.

Senator Price has subsequently adopted a different argument in opposing the Voice, namely that it may create a division in society, an argument which quite rightly attracted the appropriate response of rejection from Noel Pearson. Mr Pearson is one of the drafters of the Uluru Statement. Senator Price’s argument the Voice is divisive is, as Mr Pearson so precisely stated, the same divisive rhetoric previously resorted to by Senator Hanson. I shall add my two bob’s worth to Mr Pearson’s sound response, namely it is misconceived logic for Senator Price to argue the equanimity of constitutional consultation which the Voice achieves as being a source of social division. Senator Price’s resort to the extremist argument of ‘division’ is simply a hollow argument of last resort and it deserved the appropriate words of rejection Mr Pearson spoke in response.

The Federal National Party’s premature and poorly thought through opposition to the Voice is now their own self-inflicted political wound. No more needs to be said about that erroneous decision. However, I note the approach by some members of the Liberal Party to the Voice appears to be one of passive opposition, which is implied by their conduct. On 28 December 2022, the Shadow Minister for Indigenous Australians, Julian Leeser MP, requested the machinations of the Voice be discussed first, which in logic is putting the cart before the horse. It is in my view an exercise in obfuscation of the referendum issue by Mr Leeser and the Liberal Party, because the issue is simple- 65,000 years of First Nations society deserves to be properly heard about the common law imposed upon them for the past 234 years. In any event, the Minister for Indigenous Australians, Linda Burney MP, has subsequently dismissed Mr Leecher’s comments, and she has likened the referendum to government “effectively asking do we need a bridge to cross the Sydney harbour: yes or no”; with legislation to follow amounting to the parliament deciding “how many lanes on that bridge”.

I return to Professor Twomey, and I shall allow her astute words to speak for themselves:

“But it must be remembered that it is already the case that Indigenous Australians form the only racial groups about which special laws are made. This is because they are the only racial groups that lived in Australia prior to European settlement and accordingly have continuing legal rights, such as native title rights. Their continuing cultural heritage is also entitled to special legal protection and sustenance, as part of Australia’s national heritage. If they are the only racial groups subject to special laws, then it seems reasonable and fair that they should at the very least have a voice that can influence the body that makes those laws.”

As I stated herein, I will be voting yes for the Voice.

The Voice is an essential step in enshrining under the protective branch of the Commonwealth Constitution a First Nations Australians’ right to be consulted about legislation that affects them. The Voice is not just a constitutional step for First Nations people, it is one of the steps for Australia to also implement the Uluru Statement so that a genuine offer of reconciliation by First Nations Australians is embraced by us all, so that the words to the song “we are one, but we are many” may finally come true. How we proceed forward by voting yes to the Voice will positively define us in the history books. We’re the Voice, so please vote yes.

 

 

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22 comments

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  1. Keitha Granville

    I hope that ALL Australians vote the same – the fact that we need a referendum to do something that should be obvious is a concern, as it will demonstrate how many Australians don’t want it 🙁

  2. Roswell

    I’m voting “yes”.

  3. Michael Taylor

    Add me to the list. It’s a “yes” from me.

  4. Anthony Judge

    I have no difficulty in appreciating all the arguments for voting “Yes”. My difficulty is associated with assumptions regarding the “Voice” in the highly probable absence of an “Ear”. Many speak in Parliament, notably expressing the perspective of minorities. To what extent does that mean that they are “heard”? One can speak — even shout. It does not mean that one is heard — however much one feels empowered in having done so. There is indeed an important symbolism to such expression. Is that enough? My difficulty has been expressed in a classic quote by Dame Maggie Smith: Just because I’m looking at you when you talk, don’t think I’m listening or even interested (The Second Best Exotic Marigold Hotel). No thought is given to the need for an “Ear” in the promotion of the “Voice”. There are many “voices” which are ignored in Parliament.

    An interesting case is offered by Alternative fur Deutschland (AFD), a Parliamentary faction in Germany with 10,3 % of the vote and 83 seats. Their representatives are effectively ignored, if they are allowed to speak (as they have a right to do). This is also the case of National Rally in France, the largest parliamentary opposition group, and the party that has seen its candidate reach the second round in the 2002, 2017 and 2022 presidential elections.

  5. wam

    I struggle with the need for a referendum giving the ‘booers’ an anonymous say? The parliament will create the voice. So what will go into the constitution?
    I am too cynical to let politicians have a free run at a republic but they couldn’t cock this up nor take it over. So another ‘yes’.

  6. GL

    I’m voting yes as well. I also imagine the Murdoch rags, LNP and other assorted RRWNJ’s will start screaming and wailing as the time for the referendum nearer.

  7. ajogrady

    If and when this passes it will focus the spotlight on the relevance of the Murdoch media.
    Unshacle Australia from its inglorious racism.

  8. Henry Rodrigues

    I can see no impediment in accepting the Voice of a culture that has preceded white settlement, for at least 50,000 years. There will be objectors, conscientious or paid up agitators, eager to justify their usefulness to a particular party in Parliament, but the only moral and overdue action is for the rest of the country to concede long overdue recognition.

  9. RosemaryJ36

    I think it is sad that an ancient culture, pushed aside by invaders, has to submit to the outcome of a referendum in order to allow it to be involved in discussions on matters which uniquely affect its people.
    A high proportion of the non-indigenous population is, sadly, racist and, egged on by Murdoch media, highly disrespectful towards our First Nations.

  10. New England Cocky

    The concept of ”terra nullius” has been incorrectly conflated into the European version of Aboriginal interaction since 1788 by lazy European historians seeking to justify & glorify the white Australian nation based on the criminal rejects from 18th century over-crowded England. The kidnapping of Bennelong, Barangaroo and other Aborigines by Phillip and the on-going defensive war conducted by numerous Aboriginal warriors clearly demonstrates that the English knew they were invaders and followed English precedent set in the Scottish Wars of extreme brutality against their foes.

    Indeed, ”terra nullius” is a concept adopted from the European settlement of South Africa where a destructive war between indigenous African tribes effectively left the land vacant without population immediately before the European waggons rolled north from Capetown. In Australia it was first used about 1870 in a cattle dispute in central Queensland to justify European management practices.

    The crux of the problem goes back to the eugenics supporting Isaac Isaacs, a lawyer from Victoria, who strongly advocated against including Aboriginal people among enfranchised persons of Australia after 1901. He subsequently was made Chief Justice and about 1906 sat as judge alone hearing an appeal against the disenfranchisement of a South Australian Aboriginal Man. Naturally the appeal was lost.

    The Voice alone will be insufficient to rectify the disadvantages of Aboriginal citizens because the Australian Constitution contains many clauses allowing the government to act against racial groups, especially Aborigines and Chinese. These clauses will need to be deleted or dramatically amended for true equality.

    It is an irony of history that the only support the Jewish people of Germany received between 1933 to 1945 was from an Australia Aboriginal leader, acknowledging the pain of oppression by government from laws ….. made by a Jewish judge.

  11. B Sullivan

    “imposing a foreign system of law upon a 65,000-year-old society of people that was based on the pretence of a legal fiction these lands in 1788 were terra nullius.”

    Not a pretence. Terra nullius means nobody’s land. It doesn’t mean no one is living on that land. It means nobody owns the land. Which was true. The very notion that humans have the right to claim ownership of land that has existed long before they even evolved as a species just because they and their ancestors were born on that land is a ludicrous cultural conceit of civilisation introduced to Australia when Captain Cook claimed ownership of the continent for the British Crown. He had already claimed New Zealand which had been given that name by Dutch explorers and had already been settled by a Maori civilisation for eight centuries. So the notion of “terra nullius” is of no consequence. It is just invoked to malign Cook’s integrity. Cook’s orders where to claim Australia in any case just as he claimed New Zealand in spite of the existence of the Maoris who did claim to own the land.

    Cook’s expedition was really Bank’s scientific expedition, it was meticulously recorded, and no attempt was made to hide the fact that there were already people living in Australia. The artists that Banks brought with him depicted the native people everywhere they went, and native artifacts were collected and preserved for posterity, so there was no attempt to hide the fact that Australia was occupied. But nobody owned it. There were no landlords demanding landless tenants to pay them rent. No king demanding taxes from the subjects that lived in his kingdom. No sellers or buyers of property, nor records or defined boundaries of ownership. No family squabbles over inheritance of property. No ownership of land. Terra nullius.

    The cultural pretence of ownership of the land in Australia did not exist before the arrival of civilisation in 1788. The land wasn’t stolen from traditional owners because traditionally the land was not owned. It was claimed by a culture with the power to enforce recognition of that artificial cultural claim of ownership.

    Besides, ‘terra nullius’ is not an excuse required by the powerful to obtain territory. They don’t need an excuse. They also have the option of purchase and if that fails, they can resort to conquest. All of humanity bears cultural baggage from the suffering of conquered ancestors. We’ve all been subjected to the imposition of foreign laws whether our ancestors lived in primitive isolation for sixty-five thousand years or through ten thousand years of ever advancing technology. Think of the British working classes, oppressed for centuries and still effected today by a social system of privilege and peasantry imposed by genocidal Norman conquerors a thousand years ago. They now have a voice to parliament called the House of Commons. But it is overruled by a House of Lords, and the representation of their voice to parliament is still dominated by privilege so that the will of the few haves always prevails over the will of the many have-nots.

    And before the Normans there were the Romans. And what did the Romans ever do for anyone? Oh, that’s right, they gave us the term “terra nullius”! Which means ‘nobody’s land’. Not unoccupied land.

  12. Terence Mills

    The issue that is surfacing is that of the horse and the cart.

    There are two elements to the implementation of the Voice and which should come first. Clearly the enabling legislation will govern the extent, scope and limitations of the Voice – in the Pearson analogy, it will describe how many lanes the bridge will have and where will it go. The Constitutional amendment will ask the Australian people the fundamental question of whether we should have or even need a bridge.

    As has been noted elsewhere, perhaps we would be better served by putting the legislation in place first, for perhaps five years and then see if we need a referendum and constitutional amendment.

    My own position is that I am in favour of the indigenous people of this country having a coordinated voice to the federal and state parliaments to provide input on matters that affect their communities and I believe that this can be easily achieved by legislation : I am not as convinced on the need for a constitutional amendment.

    The argument in favour of the constitutional amendment is that the Voice will then be enshrined and entrenched by referendum and thus could not easily be changed. What this argument ignores is that the fundamentals of the Voice will be embodied in legislation which, of course, can be changed by succeeding governments.

  13. New England Cocky

    @ wam: Welcome to 21st century political thinking

    @ Terence Mills: Legislation alone will cause few changes to the racist attitudes of too many Australians having European heritage. Unless a referendum is successful in supporting the removal of the racist clauses of the Australian Constitution, there will be little to encourage metropolitan based politicians and public servants to provide the public services and community financing required to overcome the too many decades of neglect publicly displayed in Aboriginal communities.

  14. Terence Mills

    New England Cocky

    Good point !

    The so called race provisions in our Constitution, sections 25 and 51 (XXVI) are not part of the referendum : they remain in place !

    Section 25 is spent, it no longer has any legal effect or relevance and could be eliminated, but 51 (XXVI) is still very controversial, it reads :

    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 :

    51 (XXVI) the people of any race for whom it is deemed necessary to make special laws

    For some reason this provision is not being considered in the referendum perhaps because it is the section that governments seek to use when they want to legislate on matters affecting aboriginal people – are there other races that the government may deem it necessary to make special laws for ?

    The suggested changes to our Constitution are :

    1.There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

    2. Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.

    3. The parliament shall, subject to this constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

    So, the proposed constitutional amendment contains authority for the parliament to make laws which seems to double up on section 51 (XXVI) in many respects.

    Perhaps scholars are saying that for the referendum to work, this provision (51 (XXVI)) must remain to allow the passage of the intended referendum and its supporting legislation : it’s a moot point !

  15. Stephengb

    Wow
    Bloody good article and really good responses.

    For me (I am an Englishman – an immigrant- apprently a descendent of the Normans 1066) my mind is not made up, and I will probably find it hard to be decided right up to the day of the referendum.

    I have thought about this a lot and have read many articles and comments on this matter, and I find myself saying yes no, yes no, yes no, oh I don’t know !

    At this moment I feel inclined to say “no”, simply because I have been in Australia 44 years, and from day one, I have listened the racist discussions every where I have lived (Victoria, NSW, WA, and Qld).
    I cannot for the life of me understand how a voice to parliament will stop the racism and racist dog whilstling that I have seen and heard throughout Australia.

    We have specific laws that prevent discrimination but yet that does not stop it, it is everywhere, even among politicians.

    I do believe it is getting better but I am yet to be convinced that “a Voice to Parliament” will actually make a positive difference.

  16. New England Cocky

    More on ”terra nullius” from Wikipedia. This proclamation by Governor Sir Richard Bourke dated 10 October 1835 (Despatch 99) occurred because John Batman attempted to buy now Melbourne land through a ”treaty” with the local Aborigines. After this date anybody found in possession of of land without authority of the government would be considered trespassers.

    Somehow I doubt that this worried the N NSW squatters too much.

    https://www.foundingdocs.gov.au/item-did-42.html

  17. leefe

    Stephengb:

    There is no law that can ever be made which can stop racism. It is possible to frame laws that drive its overt expression underground, but the actual feelings and ideas cannot be affected by law, including all those that currently exist.

    What laws – and the proposed Voice – can do is act as guides and targets for aspirations of behaviour, thought and feeling. They can show us ways of doing better, of being better. They can help to start bridging this gap.
    It’s a long, slow process; worthwhile things – needful things – are not achieved overnight. But if we reject the opportunity for improvement because THIS step isn’t perfect and doesn’t do everything that should be done, then we get nowhere.

    My only reservations about the Voice are to do with the possibility that it effectively cedes sovereignty. I have still to find a decided and convincing legal opinion on the matter, one way or the other. That aside, I’m a definite yes.

  18. Stephengb

    Sovereignty – is a dangerous issue, it literally means “supreme power or authority”.
    So when the first nations talk about their sovereignty over this land, “always was always will be”, my first thought is that “Mabo”, clearly made the point that this land belongs to the first nations and Torres Straight islanders, and indeed since that High Court ruling the first nations have been clear that they are the soverign owners of this land called Australia.

    So given the narrative from the first nations leaders both in and out of our current parliament, I see no reason why the first Nations should not follow the example of the West Minster system and ensure that sovereignty is invested in the Parliament by ensuring that our parliament has the same supreme power and authority.

    In the Westminster system soverignty is invested in parliament as follows, supreme power excecised by house of Representatives and House of Lords (house of review), where the House of Lords are special people (unelected) given power by way of the Crown appointing them a Lord, and supreme authority represented by the Crown (hierarchical Monarch).

    Thus to be true to the Westminster system we should ensure that the First Nations (and only the first Nations) can sit in the Senate (House of Review), and only a first Nations person can be appointed Governor General to exercise the authrity of the Queen, as a representative of the Crown.

    Do you think that Australia would accept this change to our Constitution- or do you think that Racism would be triggered ?

  19. Clakka

    It will be a “Yes” from me.

    If for no other reasons as a step of constitutional recognition, and to facilitate a process for the assemblage of formal nation-wide representatives of First Nation Australians to provide the Voice – an aid to us all, in the face of 2 centuries of structured divide and conquer.

    An excellent article followed by many interesting and informative comments. However, I must say, that for too many reasons to elucidate here, I have absolutely no fears related to the calls on matters of sovereignty. And to me it’s not a matter of whether racism and prejudice together exist, it’s a matter of whether together they are embedded in law. The Voice is advisory only, with law left to the parliament. Constitution secn 51 may need to be titivated.

    From the beginning Oz was assailed by a litany of lies, diversions, usurpations, divisiveness, and illegal actions all to facilitate self-aggrandisements of the usually drunken emissaries and representatives of the Crown, and greed – to the confusion of settlers and squatters, and to First Nation Australians, the contrived cost of dispossession, death and abuse.

    From ’secret’ orders to Cook by the Admiralty. Cook’s disobedience and illegal acts. Banks’ misrepresentations, lies and deceits. The Crown’s orders to Arthur Phillip. A base for the ongoing bloody expropriations by the East India Company. Further ’secret’ orders to seize land outside the needs of a penal colony. Batman’s dodgy deal with the ‘Natives’ of Port Phillip district. Bourke’s purposeful proclamation of 1835, slyly and silently introducing the principal of terra nullius.

    Bourke and others’ further guile in falsely reporting that the ‘Natives’ were not ‘civilised’, had no law or concept of or need for ownership, as they had no permanent dwellings, wandered aimlessly subsisting, and did not farm or cultivate. A cunning cover off of the British common law ‘Doctrine of Reception’, use of terra nullius and absurd clinging to the Magna Carta.

    Whilst there were many that fought for the legal and humanitarian rights of First Nations people, the Crown, understanding its own transgressions and those of the colonies and their legislatures was drawn to cover their collective arses with the absurd Colonial Laws Act 1865.

    Whilst it may suffice for ‘little England’, across its entire empire and commonwealth, and everywhere the Crown overarches with its real (and Colonial) property law, through prestidigitations, greed, theft, race and class prejudices prevail, just as they have for most imperialists back in time, through the ‘Law of Nations’ to the era of the Greeks and Romans and the alleged edicts of a silent and invisible God.

    Thank goodness for Mabo and Wik and their honour’s findings and observations (well selected and shown above), however the prejudices supporting greed prevail, as do the strangulations of First Nation Australian’s objectives, laws, and rights via inappropriate application of common law.

    Bring on the Voice and a Republic. Both with a renewed and contemporary functional constitution.

  20. Anthony Judge

    With respect to any “Voice”, I wonder that so little comparison is made with constitutional implications of enabling a Voice for Women, as discussed in “First women elected to Australian Parliament” (1943, https://bit.ly/2NXrlBq). Does this continue to be an issue, despite having been enabled? With respect to comments on property versus ownership (and terra nullius), there is a degree of irony to the promise / prediction by Klaus Schwab of WEF that in the near future, following the Great Reset, “You will own nothing and be happy” (as widely publicized and discussed). Will we revert “happily” to the condition with which First Nations people were purportedly familiar — a condtion so successfully exploited?

  21. Stephengb

    All of you “YES” voters.

    If you truly want to give the first nations their rightfully place (their voice) then support their sole and absolute soverign right to a place in our parliaments house of review, our Senate and or the absolute and sole right to be our soverign head of state .

    Anything less is just more of the same marginal sops to them and as such is still unacceptable inequity.

    But you will not support such a truth, you will rant and rave how good you are at giving the first nations a voice but only if that “voice” has NO power or effect whatsoever, because in truth you do not think they really are as equal as you !

    The phrase “dog whistle” comes to mind.

  22. Maria Heenan

    Great article Michael. I will be voting and campaigning YES. None of the ideas in the NO campaign are honourable.

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