By Christian J Bennett*
All non-Indigenous Australians need to join the discussion and investigate the all-important issues discussed at the First Nations Forum held in early July 2018 at Old Parliament House in Canberra.
The discussions raised questions we all should be debating. They relate to the need for direct and equal representation of Indigenous people in our governing institutions, and for acknowledging the First Nations People’s ongoing sovereignty over our land. Those issues are the foundation of establishing the credibility and acceptance of Australia’s purported constitutional legitimacy in international forums, a point made by international participants who attended the forum.
A strong case supports the contention that – under international law in 1788, 1901 and now – original sovereignty remains with the Aboriginal people and Torres Straight islanders and that sovereignty has never been ceded, surrendered or negotiated to settlement.
A mistaken presumption by our British forebears, that what we call Australia was ‘terra nullius’ or a land belonging to no one, has never been rectified. Therefore, all laws made under the premise of the Australian Constitution are questionable as to their legitimacy.
Substantive recognition demands direct representation in the Houses of Parliament and some form of acceptable sovereignty with representatives elected by Indigenous people recognised as such in electoral rolls. It in no way diminishes the legitimacy of the Constitution: it in fact gives it the legitimacy that it currently lacks. Our Constitution was imposed on our First Nations people without negotiation. It stands on clay feet.
Not formally subjects?
The lack of a negotiated Constitutional agreement with our Indigenous forebears calls into question whether our Indigenous people are legally and formally subjects of the Crown. They were not recognised as British subjects with legitimate franchise under the Constitution as under the Commonwealth of Australia Constitution Act 1900 (Imp) – an Act of the Parliament of the United Kingdom.
Under s127 they were not even counted in the reckoning of population or included on Electoral rolls until the Constitutional amendment of 1967.f They were essentially disempowered, unrepresented non-citizens in their own land. Their compliance with our laws was never agreed by treaty as it is in Canada, New Zeeland and elsewhere. They comply with current laws out of good grace and their desire for co-existence and mutual respect.
With that background, it’s timely for national debate to examine the Australian Constitution with regard to:
- appointment of Indigenous Senators [ s7 refers];
- House of Representatives Indigenous representatives [s27]; and
- creation of a plurality/co-existent sovereignty with an Indigenous nation within the Commonwealth of Australia [s121].
It may be that much can be done to right historic wrongs, despite the difficulties of changing the Constitution. There may be scope for positive change under existing provisions.
I believe it is time we listened to those who have cherished, protected and defined this continent for tens of thousands of years before ‘Europeans’ arrived. If we listened carefully and gave them a fair go, they may well teach us a thing or two.
We are missing out on the chance of a much-expanded identity as well as the lessons that could be learned from our First Peoples because we have failed to listen and learn. We have tried to impose an identity and set of values more relevant to life in Europe and to British colonialism of the 1780s than to the unique environment we find ourselves in as the large and dry continent, cut off from by long distances from most other nations.
Incorporating Indigenous history into our shared narrative is core to acknowledging the reality of our identity in the world, as seen and understood by those outside Australia.
To become a truly independent republic, we must firmly embrace our foundational Indigenous identity and culture that greeted the First Fleet on arrival, build on the advances wrought by all our peoples over the past two centuries, then graft our future aspirations on to the unique nature of our beautiful land and the limitless potential of all our people.
* Christian J Bennett is a CLA member and constitutional law researcher at ANU.
Listen to the First Nations’ forum recordings: http://www.anu.edu.au/about/strategic-planning/first-nations-governance-forum