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If Australian Aboriginals have never ceded sovereignty to the British Crown, as the activists tell us is the case, then aren’t they excluded from being a Senator or representative member of the Australian Parliament as per Section 44 of the Australian Constitution? Section 44 states at subsection (i.):
44. Any person who –
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
The Wikipedia article on Section 44 goes into detail about how subsection (i) has been dealt with in the High Court, including the “2017 – 2018 Australian parliamentary eligibility crisis”, and certainly it appears a good case could be brought to the High Court asserting that Aboriginal senators and members of the Federal Parliament, who proclaim that they are members of this or that sovereign Aboriginal nation, are in breach of Section 44 (i).
In the recent so-called “eligibility crisis”, even those Senators and sitting members of the House of Representatives with no knowledge they potentially held citizenship of a foreign sovereign nation were ruled to be ineligible to sit as members or senators. Since the Aboriginal senators and members of the House of Representatives boldly and proudly declare they are natives of sovereign nations that were never defeated and never relinquished their sovereignty to the British Crown or the Commonwealth of Australia, then how can they not be in breach of Section 44 (i)?
Recently there were cases in the High Court (Love and Thoms) where it was ruled that a foreign national, that is someone born in a foreign country and who has never held Australian citizenship, cannot be deported from Australia if it can be shown that they had an ancestor that was an Aboriginal Australian!
Ireland apparently will accept you as being an Irish citizen if you can show that you had a grandparent who was a native of Erie/Ireland, but regarding Australian “Aboriginality”, there is no generational qualification, that is to say the ancestor could have lived on the continent pre-Federation or even (unlikely) pre 1770! That High Court ruling must surely indicate Aboriginal Australians hold a nationality that pre-dates British Settlement and Federation?
The Uluru Statement From The Heart is very clear about the timeless sovereignty of the Aboriginal people:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
Does it not sound like the Uluru Statement From The Heart is actually describing a case of “dual nationality” that is intrinsic with Aboriginal people?
The Constitution, however, makes no mention of Aboriginal sovereignty co-existing with the Crown. Is this a case of wanting to have your cake and eating it too? As proof of Australian Aboriginal sovereign nationality, there is even a passport that some Aboriginal people have created and issued.
The first person who should be subject to this exclusion is Labor’s new Minister for Indigenous Affairs, Linda Burney. She has long been a citizen of a nation other than Australia, as she openly admits herself.
When first elected to the New South Wales Parliament in 2003 as Member for Canterbury she declared in her inaugural speech to the Legislative Assembly: “I am a member of the mighty Wiradjuri Aboriginal nation.” Since then, she has made no effort to resign her citizenship from this nation in central-western New South Wales. Surely she must be in breach of Section 44 (i). The High Court should act at once to declare Ms Burney an alien who is ineligible to sit in our federal parliament.
Chris Battle lives off-grid on the Mid North Coast of NSW
Very valid point, Mr. Battle. Thank you
Try to sort out the most fundamental facts about “First Nations.” There appear to have been 3000 Wiradjuri at the time of white settlement, but very hard to find a current number.
Just who is, and who isn’t a Wiradjuri ?…self nomination seemed harmless enough up until now, but with special representation…the Voice, it may become much more important. To qualify for a say in some way, will 50% ancestry be enough? Or 1%? Will it be by “nation”, so can I claim special representation if I am Wiradjuri (1%) and Darug (2%), maybe both? Will it matter if I was born in Perth, and have always lived there? Will I get the same Voice as a 100%. Arrernte man in Alice Springs. Is there an age stipulated to have a Voice? Should it be 18 yrs, or different for “emerging elders.”
Maybe it won’t even be a one vote one value, as that is a western idea, not practised by indigenous tribes, as far as I can make out. The elders told you what you could and couldn’t do. And women? Does the Voice follow traditional treatment, or a western notion of equality?
I think we have the answer to all these questions in one simple fact…10 members of parliament with some sort of indigenous background, were voted in by all Australians in the recent election.
How could it be any better than that?
“Our… Torres Strait Islander tribes were the first sovereign Nations of the Australian continent(“s) adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the… Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors.”
Uluru Statement From The Heart
“The Coming of the Light is a holiday celebrated by Torres Strait Islanders on 1 July each year. It recognises the adoption of Christianity through island communities during the late nineteenth century.
The London Missionary Society set out to convert people of the Southwest Pacific to Christianity from the 1840s. In July 1871, the Reverend Samuel MacFarlane, a member of the Society anchored at Erub (Darnley Island) in the Torres Strait. He was accompanied by South Sea Islander evangelists and teachers.
Torres Strait Islanders living on the islands or on the mainland come together to honour this anniversary every year. Islanders of all faiths celebrate the Coming of the Light in a festival like no other in Australia.
Activities include church services and a re-enactment of the landing at Kemus on Erub. Hymn singing, feasting and Ailan dans strengthen community and family ties. “
A nation is an area of land that is controlled by its own government. A nation is more overtly political than
an ethnic group; it has been described as “a fully mobilized or institutionalized ethnic group”.
A common language or dialect does not constitute a nation. Aboriginal nations – never was, never will be.
The Aboriginal peoples lived in bands which were small, kin-based group of perhaps 10–50 people. A band society, sometimes called a camp, or in older usage, a horde, is the simplest form of human society. A collection of bands that speak/share a common dialect do not and have never been seen to constitute a nation. Might be worthwhile explaining that to Aboriginals
Cede is to give up. The Aboriginals absolutely ceded all land. Resistance was sporadic and minimal. Any resistance was puerile and ineffective in the colonisation of the continent and the creation of the Australian nation in 1901.
The Aboriginals may never have formally ceded the land which would normally be done by Treaty … but the land was ceded, the British had no requirement to enter into a treaty to takeover the land and the Aboriginal had no capable leaders to negotiate one.
Looks like we need to explain “cede” to the Aboriginal.
restt – your points are valid. Regarding “resistance”, I don’t think that word can be applied, because it entails some kind of political awareness behind the action, which the Aboriginal people had no notion of. Yes there was violence from Aboriginals towards the settlers, but it was of the retaliatory “pay back” or raiding party type, which was endemic and cultural, and not violence assisting the political action of resisting colonization.
Nonetheless, if a Fedral Parliamentarian claiming Aboriginality asserts that they indeed identify as having a nationality in addition to Australian, should they not have their assertion honoured, and therefore be disqualified as per Section 44 (i) of the Constition?
But nothing is being done in practical terms to encourage Aborigines to lead flourishing lives -nothing to reduce violence, nothing to improve educability, trainability, productivity.
Reasons for avoiding these central issues: Obvious.
What a great idea to put these claims of claimed separate nations to the test via s41(i) (tongue in cheek?). It is about time the rest of us used “lawfare” – as do the minority activists of all stripes – to stop things that we don’t like from happening. However, it could blow back in our face if the decision was decided on the “vibe” concept, as illustrated in The Castle. I saw in The Australian the other day that the Greens senator, Lidia Thorpe said “We as sovereign First Nations people reject constitutional recognition. … We do not recognise occupying power or their sovereignty because it serves to disempower, and take away our voice…. we demand a sovereign treaty with an independent sovereign treaty commission, and appropriate funds allocated.” These people mean business, what with passports in Redfern and an “embassy” in Canberra and the apparent ability to designate members of other races as “honorary Aborigines”. Some of the rhetoric from others borders on threats of violence like “burning Australia to the ground” – presumably starting with the doors of old Parliament house, plus some disgusting “comedy” skits on the ABC in what they consider laughingly passes as humour. That’s the more extreme end of the “conversation” Then you have those in the middle who use the “reconciliation” and inferring all present non-Aborigines in Australia should feel guilty about things in the past that would never be contemplated today. No-one is shooting Aborigines these days nor are Aborigines spearing others or bashing in their skulls with nulla-nullas. The Pope and his representative in Melbourne seem to be in this middle group. Then you have the third group of Aborigines who are satisfied with the Constitutional status quo and would just like things to improve for those mainly in remote areas, which is probably the view of most Australians. The activists’ strategy seems to be we’ll frighten them with group A which makes what group B is selling looks marvellous so all us frogs warming up in the saucepan will vote for B.
Chris,
As a non-lawyer, could you please opine if your findings are
1. Well-known to Constitutional scholars, but ignored because of their potential to upset; or
2. A new angle to an old section of the Constitution, that scholars seem to have missed.
There have been many times when I thought I had found a revolutionary new concept, only to find it was first noted in the 1800s or whatever. So many thinkers have preceded us that it is now hard to find original new concepts or ideas.
The promoted new ideas about how to placate the small aboriginal voice, like special Constitutional recognition, are no more than re=packaged, failed ideas of previous times. I for one am aghast at the possibility of such matters being actioned because the overall risk far outweighs the benefits. Geoff S
Geoff S:
I have no idea what Constitutional scholars know about this subject, but I would assume they are well aware of the potential problems if that can of worms was to be opened, and so they keep the lid firmly on and the can hidden at the back of the cupboard.
One of the worms that has got out of the can, is the question of the legal standing of any legislation that was passed by those latter deemed to be ineligible to sit.
I believe that the original authors or “framers” of the Australian Constitution simply took it for granted that they were British, and that a “foreign power” as referred to in Section 44 (i) was a nation like France, Germany or Japan, that could possibly have been potential enemies, and not Britain or New Zealand. Years later we had Robert Menzies making statements that he was British, and he may have even said that he was, “British to the boot-straps”, or something like that. In WWII I believe he actually was part of Churchill’s War Cabinet. According to the recent interpretation by the High Court, Menzies would certainly fit into that category of persons “…incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
It looks like Australia is rapidly heading towards a Constitutional crisis, if not actually an existential crisis.
I doubt that those who voted for the Second Amendment to be added to the U.S. Constitution imagined that it would be used to defend the military grade, rapid fire weapons legally owned today. And it is all but impossible to repeal the second amendment because so many of those weapons are in people’s hands today.
Similarly, if we give ‘indigenous people’ ‘The Voice’ then how will it work in, say, a century? Why should someone with 1 in 128 indigenous heritage have two votes in elections? One for Federal Parliament and one for ‘The Voice.’ Imagine the fuss if in a century there is an effort to curb the powers of ‘The Voice’ when a significant proportion of the Australian population claims to be ‘indigenous?’
Re: the Second Amendment to the U.S. Constitution: I believe that it came about because at least one of the new states wanted a guarantee that their former colonial militia could be kept as a state militia, hence the somewhat obscure wording of the Amendment. Among the southern states particularly, there was an understanding that the former individual colonies were sovereign entities, as recognised by Britain in the peace treaty signed in Paris at the end of the War of Independence, hence the need of keeping a militia for defence. It makes no sense to believe that the Second Amendment is granting to the individual or groups of individuals the same status as a militia. It was those state militias that initially took up arms at the start of the U.S. Civil war in 1861, and in like manner the individual Crown Colonies of Australia sent their militias to the Boer War.
But I digress somewhat. Yes, any Constitutional change to give a Voice to Aboriginal people, or to recognise them in the as being First Nation Peoples, will be the beginning of the end of the Australia as we know it. You will know that it is all over, once one of the “First Nations” signs a mutual defence treaty alliance with China!
Many a truth spoken in jest, cbattle1. I heard that prior to the election our new foreign minister at the Press Club announced that they were going to appoint a “First Nations Ambassador” if they got in., so signing an alliance with China may not be beyond the realms of possibility.
It sounds very much like dual nationality although there were no Aboriginal nations, sovereign or otherwise. The only nation which has ever existed on this land, is the Australian nation. In fact nationhood is a recent concept and neither Italy or Germany, countries for thousands of years, were nations until the late 19th century.
How can a democracy and First and Second Nation citizens?
How can a democracy have First and Second Nations citizens and remain a democracy?
Correction.
rosross – having First and Second Nations citizens means having first and 2nd class citizens; it will still be a sort of democracy, just a far, far worse one than our current one.
Points like this article have been made before, frex in response to the demanded treaty – treaties can be broken, and there’d be nothing to stop OZ declaring war on any party signing the treaty.
Padriac. 2/6. “No-one is shooting Aborigines these days nor are Aborigines spearing others or bashing in their skulls with nulla-nullas.”
Well, in WA over the last couple of decades, the local Mau Mau have been doing just that, and rape, murder, and general mayhem has been their operation. I have collected substantial records of this. Paper-talk indicates that the NT and NQ have similar problems. They consider it a war. We call it police action. Perhaps if we concur with the former definition then appropriate citizen forces can resolve the problem.
cbattle1 writes:
I believe that the original authors or “framers” of the Australian Constitution simply took it for granted that they were British, and that a “foreign power” as referred to in Section 44 (i) was a nation like France, Germany or Japan, that could possibly have been potential enemies, and not Britain or New Zealand. Years later we had Robert Menzies making statements that he was British, and he may have even said that he was.”
No problem, Menzies was British. As were all other people living in Australia at the time, other than newly arrived and no-naturalized immigrants. When Captain Cook annexed the land on behalf of George III he automatically made all Aborigines in the eastern half of Australia British subjects. This was gradually extended over the rest of Australia so when he was born all Australians were British subjects. Hence Section 44 excluded those who were not British. When the islanders became ‘Australian’ in the 20th century, the link with the British crown was severed, and British subjects were no longer Australian. S 44 now excludes British subjects from Parliament.
Note carefully the diagrams that Governor Phillip used to illustrate that aborigines were subject to the same law as the new immigrants. This effectively shows that they were considered British subjects. If they had not been British subjects, they would have been under different laws, as was the case in India, where Muslims were subject to Muslim law, Hindus were subject to Hindu law, and only when there was overlapping situations did British law prevail. The diagrams are shown in Keith Windschuttle’s book.
Incidentally, if there is to be a “Voice to Parliament” for aborigines, by virtue of them living here before the
British came, I demand a “Voice to Parliament” for Britons, on the basis that our ancestors developed the continent and made it possible for 27 million people to live in a country which would barely support half a million aborigines.
Interesting comment pbridge, but I don’t think that having Aboriginal minority violent radical ratbags/ratbaguettes being opposed by non-Aboriginal minority violent radical ratbags/ratbaguettes would help matters. It is better to stick to the rule of law and let the police and justice system do its work. Tony Abbott’s well balanced article in today’s Australian finishes up “Our cohesion as a nation is too important to be put at risk by a referendum that fails.” which to me seems to indicate it would be better to put the past behind us get on as a unified and democratic nation, rather than put up with the sort of violence that he and Julia Gillard experienced at the Lobby restaurant in Canberra some years ago or even worse, following a failed referendum.
One might win the battle, but lose the war…
Consider a case brought to the High Court that successfully argued that under S44i, a declared “citizen” of a “First Nation” is in fact not eligible to sit in Parliament. To win such a case would see all such individuals punted from Parliament. It would be to win a battle, of sorts. However, it would lose the war big time. In making such a ruling, the High Court would have to accept the “First Nations” misnomer as a valid construct. This, for the Activists, would complete the Orwellian triumph of transforming the fictional Newspeak “First Nations” into operative fact. And then imagine how sorry we would be…
On the other hand, I guess the High Court could throw the case out, ruling that “First “Nations”” is a disingenuous rhetorical sleight of hand with no basis in law, fact, common-sense or linguistic integrity. That would indeed be a triumph worth having. However, given that the Cult of the Noble Savage is now de riguer among our political and elite classes, I wouldn’t want to put money on it.
You are so right, Jackson. You never know with the HIgh Court. I would think that it is not up to the Court to decide if a nationality or “foreign power” exists in reality or not, but only to determine if the defendant expressed “any acknowledgement of allegiance, obedience, or adherence” to a nation other than the Commonwealth of Australia. With that construction or interpretation of Section 44 (i), it is up to the defendant to prove that 44(i) does not apply to them by expressing no acknowledgement of allegiance, obedience or adherence to another nationality. Surely, anyone questioning the legal validity of the Commonwealth of Australia or is not 100% committed to Australian citizenship or the Australian Constitution, should not be in the Federal Parliament. What if a senator or MP showed up at the Governor General’s residence to be sworn in as a minister, while draped in the national flag of the People’s Republic of China? Even if they technically did not have citizenship of the PRC, one would legitimately have cause to question their loyalty to the Commonwealth of Australia. There is wisdom in the Christian Gospels where it is written: “You cannot serve two masters.”
Various Aboriginal clans might or might not have ‘ceded’ their government to the Cwth, but they all certainly behave as if any such rights were ceded, and now freely and with unbiased welcome enjoy the benefits of full participation: think of the roads, the peace, the mobile phone network…apologies to Monty Python and the Life of Brian.