Communist Party of Australia

We acknowledge the Sovereignty of the First Nations’ Peoples.

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Issue #1535      15 February 2012

Where to now in push for sovereignty?

The dust is only now beginning to settle after the clash in Canberra on January 26 between Aboriginal Tent Embassy protestors, police and the Prime Minister’s security officers. There’s been plenty of coverage of the protests and what preceded and followed them but less on what underpinned the Embassy’s 40th anniversary celebrations. Koori Mail Managing Editor Kirstie Parker spoke to sole surviving Tent Embassy founder Michael Anderson in Canberra about a revitalised push for sovereignty and plans to take that case to international courts. Here’s an edited version of what Mr Anderson said:

Essentially what we found when we went to England late last year was that the Aborigines were never considered in any of the bills and papers leading up to the 1875 amendment to the 1872 Pacific Islanders Protection Act. So, having looked at those bills and papers, I tried to find out how the issue of Aboriginal affairs had first raised its head.

Then, having visited the office of Parliamentary Counsel in Whitehall, we talked with members of the House of Commons in London and asked “How did that get into the Act?” and found that Queen Victoria exercised the Crown’s prerogative in late July/early August 1875 and then when the Act came out in August of that year, it had Sections Seven and Ten written into it and we found out that they were actual Orders in Council and that came through as a result of the prerogative powers of the Crown.

And when we asked “Well, what does an Order in Council do?” we were advised that when an Order in Council is exercised by the Crown, it becomes absolute law. Sections Seven and Ten were about saving the rights of the tribes.

Queen Victoria said words to the effect of “I do not claim, nor do my heirs or successors claim, sovereignty and dominion over the Aboriginal people and their places”. So she has basically said “Your sovereignty is intact”.

Section Ten was the second Order in Council, which said the governments of each of the colonial states of Australia had to have those orders proclaimed in each of the states. Whether they did or didn’t, the fact is it related to those colonies identified in the principal Act, and they identified New South Wales, Queensland, New Zealand, Victoria, Tasmania, South Australia and Western Australia.

Now, all of that has been hidden from us all of these years, we’ve never known about it. Everyone, all the lawyers and politicians argue those have been repealed both in Australia and England and then we looked at this and we looked at the 1964 and 1986 Statute of Appeals Act in England and they say there that the Acts are being repealed but they’re basically saying the law that has been created is preserved.

Not only do they say that, they also say that other alternative arrangements must be put in place. And then you go down to 1996 and they say in that repeal of the English law that the Acts are repealed but the law that was established in the countries outside of England, Ireland and Wales remain. Then there’s another part when they essentially said “But the law that has been created by those Acts can only be replaced by another Order in Council by the monarch” – ie the Queen. And when they issue that Order in Council, then that law that was established finishes on the date and time that they say in that Order in Council. And that relates to the former colonies of England.

We then went to the Australia Act of 1996, being the act that Gareth Evans when he was Foreign Minister negotiated with England and what they did was separate the political powers of England from Australia, which meant the Parliament of England could not make any laws for Australia. And we cannot appeal any High Court decisions to the Privy Council.

And we looked to see if the Australia Act had any reference to taking away the law that was created by that Order in Council by Queen Victoria but there’s no reference to it.

Orders in Council

There’s a section, though, that’s created there that allows for the states and territories to pass their own laws to create a repeal and a rescinding of the laws created by these Orders in Council.

We pursued that and found that there’s been no such Acts since 1996; the states and territories haven’t pursued that.

The next reference we found for the 1872-1875 Act was in 1999 when John Howard passed the Anti-Slavery and Sexual Servitude Act in the Federal Parliament in 1999 and in that he repeals those Acts as well in Australian law.

Now, when we looked at what had happened here, because the Queen of England is still the Australian head of the state, she still has powers that remained as a result of the 1996 Australia Act. But we’ve not found where John Howard or anyone else has asked her to overturn the law created by Queen Victoria’s Orders in Council.

Now, I think one of the good reasons for them not doing that is, first of all, they will alert the Australian public to the fact that a law still exists in this country, within our legal system, that Aboriginal sovereignty is, and always has been, continuing. And that any attempt now for them to rescind that law will send the country broke in terms of the compensation that would be required to be paid. They can try, but the moment that they do, we’ll have a legal action commencing from that date.

Top-notch lawyer

The lawyer we having coming to advise us is a retired prosecutor from England and he’s also a life member of the Lincoln’s Inn, where all the top-notch legal eagles in England have their club. Some would say that they are the fellows of the Knights Templar continuing.

And so what we have now, we have some serious matters that have to be discussed here. We know everyone says this is not true and it does sound too good to be true, but the fact is it’s reality, and this is why the Australian government has always been scared of dealing with Aboriginal affairs in a manner where we could assert a right of self-determination.

The current discussion around the Constitution, the attempt to include us in the Australian Constitution, is a very flawed way of saying that Aboriginal people have acquiesced and acceded their sovereignty. But they have to understand that this would never be achieved.

Sooner or later, and we’ll make sure it’s sooner, they will deal with this issue. And I think a lot of people now, as you’ve seen from today and the discussion over the next two days, we’ll form a national unity movement under the Aboriginal parliament. A lot of Aboriginal people will talk about it and will make their choices about how that unfolds. But essentially, we’re all trying for the same thing. We may have different ways of achieving it, that’s all.

One thing’s for sure, they won’t divide us any more. The Aboriginal people involved with Constitutional reform really don’t have a constituency. Let them come out and identify who their constituents are. Les Malezer and Jodi Broun, who were on the Expert Panel, represented the National Indigenous Congress but (that organisation) represents less than one percent of our population.

What I’m saying is the people will create their own mandate and we will get out there and circulate the information we have and will have community and regional meetings.

We started these sovereignty summits (the New Way Summits) and these were very successful. People want to know about it and we’ll never do it on a telephone.

So we have a course of action and these courses of action are ones where we look at the legal aspects, the legal challenges and the other way is to talk about the political process. We have to then get into our communities and talk about the social and economic position so it’s a three-tier operation and we have to fully inform our people in order for them to make their free, prior and informed consent to our actions.

We’re not going out there to tell them what it is; we’ll have a dialogue and develop our position. Our people say “How’re we gonna get that money?” Well, we’ve done a lot of things without money and I put it to the NIC that they should fund the national unity movement in order for us to come up with a document to put to the government, which will signify a peace accord.

Involved in that will be how we shall unite as a nation, respecting each other’s cultures and traditions. And we get it out there. And when we take this to the people, I’m going to propose to the NSW Aboriginal Land Council that they also assist in funding this thing. They are sitting on a wad of money and we want them to assist in funding it.  

Next article – Council doesn’t give a fig!

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