Court judgment questions jurisdiction over Aborigines

Michel Anderson's Press Release
2nd October, 2010


Michael Anderson

On Friday 30th September I appeared in NSW District Court in the matter R v Nicholson-Kitchener in the criminal jurisdiction (case number: 20100040578). The matter is related to Ms Nicholson-Kitchener being charged with the use of an uninsured motor vehicle at Deniliquin and driving without a license.

The District Court matter arose as a result of an appeal in the Magistrate's Court in Deniliquin by Ms Nicholson-Kitchener. I prepared arguments in the original Magistrate's Court in this matter, arguing unceded Aboriginal sovereignty and questioning jurisdiction.

In the written submission in the Magistrate's Court I argued that given Mabo judgement No. 2, which implied that Aboriginal sovereignty is continuing, then this is a matter for another jurisdiction, i.e. the International Court of Justice (ICJ).

I contend that if we have a situation of contested sovereignty, which is implied in the Mabo judgement No. 2, then legal jurisdiction over Aboriginal people is in question.

With the appeal to the District Court, I expanded the written submission, arguing that in 1841 there was great debate in the NSW Supreme Court on the jurisdiction question, with the courts arguing that Aboriginal people had to be subject to some legal jurisdiction, mainly because of the constant conflict that was occurring between the traditional sovereign owners and the invader settler society.

These conflicts came down to conflict over property, that is, the invaders' society squatted and took possession of Aboriginal lands, waterways and natural resources. Aboriginal people, who fought the invading force, were charged with violations and criminal misconduct for trying retake their traditional property.

The dominant colonial society created laws to protect that which they held by force and created a criminal code that prosecuted Aboriginal people as thieves, when they tried to retake their own traditional lands back.

The laws that now exist in Australia are all about protecting property rights of the invading thieves themselves and criminalising Aboriginal efforts to regain lands and waters. This continues to this day.

Given that there are no treaties that ceded our sovereignty to the British invader, I asked in my submission to the District Court Judge R. Toner, at what time in history did the British usurp Aboriginal sovereignty under existing law at the time, and at which time did the traditional customary laws of the land in Australia governing Aboriginal peoples cease to exist.

What time in history did Aboriginal law cease to exist and British law govern Aboriginal people?

In response to the District Court judgment of 30 September 2011, Judge Toner SC, in his written judgment, has maintained the status quo by citing Denis Walker's case in the High Court 1994. Judge Toner said that Chief Justice Mason at that time alleged in his judgment that the common law was the only valid law and its application to Aboriginal people is to the extent to which it has been accepted by them.

In the other cases Judge Toner cited in his written judgment he failed to prove that there was in fact jurisdiction over Aboriginal people and basically agreed to the NSW Attorney-General's response to Neville Chappy Williams on 13 October 2011, when he said the laws have been applied to Aboriginal people ‘consistently' since colonisation:

The courts have consistently held that the fact of sovereignty of Australia and New South Wales over Australia is something which cannot be considered or challenged in the courts of Australia. The courts have also confirmed that sovereignty over Australia was validly acquired at colonisation and the common law of England properly received at that colonisation applies to and binds equally all those in Australia, including colonists, later immigrants and indigenous people. In the light of that, it is neither necessary not appropriate to provide you with any documents as to the so-called ceding of sovereignty by any people.

Clearly, the judge says in his concluding statement on the Nicholson-Kitchener matter that the case against her was proven but that she was released without a conviction being recorded against her name, i.e. a Section 10.

This judgement did in fact overturn the Magistrate's findings thereby dismissing those guilty findings, as well as overturning any reference to a criminal record, which would have been the case had she not appealed it.

This is an odd decision from my viewpoint because the judge essentially concluded the case by squaring the ledger, that is, the case was proven – that she committed wrong under Western law – but freed her of the alleged wrong doings, implying an issue of lack of jurisdiction.

Clearly, this is not an issue that any government or Attorneys-General want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.

But if you do this, then we must walk together and support each other, because almost all white lawyers and the black lawyers trained in this country cannot think outside the square boxes to see the arguments from our point of view, because they have sworn allegiance to the Crown.

Contact: Michael Anderson 0427 292 492 or 02 68296355