Decolonisation: to be or not to be included in the Constitution?

Constitution Recognition

Ghillar, Michael Anderson - 15 June 2015

This discussion paper Decolonisation: To be or not to be included in the Constitution puts in perspective the issue of where we choose to place ourselves as First Nations and Peoples within or outside the Australian Constitution.

When the Sovereign Union argues that we have never ceded nor acquiesced our pre-existing and inherent sovereign rights, we find that the Recognise campaign is promoting acquiescence and consenting to be ruled by the colonising power from Britain, the Crown. This will be the case if there is no statement in writing to the contrary of clear and plain intent in the proposed wording of the referendum.

It is imperative that our people understand the implications of the language in any referendum in order to understand how our people are being coerced into being part of a Constitutional amendment that takes away our current independence. As yet the expensive Recognise campaign is a lot of hot air trying to gather support without any concrete wording and, as always, the devil will be in the detail.

The bottom line is – if we are not in the Constitution, then we are out of the Constitution and we can draw up our own Constitution for our own particular Nation as part of making Unilateral Declarations of Independence (UDIs), which is the way to decolonise from within.

Australian Foundation Meeting 1890

Decolonisation: to be or not to be included in the Constitution?

The current push for Recognition in the Constitution is fraught with too many uncertainties, since no-one is prepared to put up any final wording for a referendum to include Aboriginal and Torres Strait Islander people in the Constitution. Even in the unlikely event that Section 51(26) of the Constitution was used to negotiate Treaties, section 51(26) still leaves the racially discriminatory power in place, which can, and has been, used against First Nations Peoples in the Hindmarsh Island case, the Native Title Amendment Act and the Northern Territory Intervention.

51. 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:
(xxvi) The people of any race, other that the aboriginal race of any state, for whom it is deemed necessary to make special laws;

We then ask: Are we prepared to acquiesce to the Crown's jurisdiction and right to rule over our Peoples, Our Law and culture?


Do we stand by our inherent pre-existing and continuing sovereign status, which has never been ceded to the colonial Crown at any stage in our history?

The Recognise campaign is yet again another colonial Crown's imposition upon our Peoples with the traitors and quislings falsely pretending that they have a right to speak for all our Aboriginal Nations across this country and thereby falsifying to the rest of the world that Aboriginal Nations and Peoples across Australia support this colonial government driven lie.

In the alternative, do we continue our opposition to the Recognise campaign and argue for the colonial Crown to enter into meaningful negotiations for the decolonisation of our Peoples across Australia. The Sovereign Union is itself pursuing this very point and are doing it with individual Nations who draw their boundaries and declare their independence through the internationally recognised process by way of Unilateral Declarations of Independence (UDIs).

The Sovereign Union is challenging the biased world view of the Recognise campaign with its call for constitutional change, which is completely ignoring opposition and alternatives, to the extent that for Aboriginal organisations to receive Federal government funding they have to declare support for the Recognise campaign. This is the epitome of coercion and voids and future agreements.
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At this stage it is important to retrace our steps and review how far along the Sovereignty/Treaty process the National Aboriginal Conference (NAC) was in the 1980s before the National Aboriginal Conference was defunded by the Hawke Government in 1984.

As Director of Research with the National Aboriginal Conference, I was tasked with understanding Treaty processes, which involved examining various legal opinions and options for the negotiation of Treaties or other arrangements.

The National Aboriginal Conference did make it very clear to the Fraser government that there were two fundamental principles that had to be agreed to between the Fraser-led government and the National Aboriginal Conference before any negotiations or discussions for a Treaty/Compact/agreements would be entered into. In short, the two prerequisites were:

  1. that Aboriginal and Torres Strait Islander Peoples had at no time during the colonial period to the present ceded, relinquished or acquiesced any part of their sovereign existence and status;
  2. the Aboriginal and Torres Strait Islander Peoples had always maintained a property right in land and the natural resources according to our Law and customs [this was confirmed in the High Court decision Mabo (No. 2) and is detailed in Professor Erica Daes UN paper on permanent sovereignty over natural resources.
[E/CN.4/Sub.2/2004/30 13 July 2004, Commission on Human Rights, Sub- Commission on the Promotion and Protection of Human Rights Fifty-sixth session Item 5 (b) of the provisional agenda, Prevention of Discrimination, Prevention of Discrimination and protection of Indigenous Peoples, Indigenous peoples’ permanent sovereignty over natural resources Final report of the Special Rapporteur, Erica-Irene A. Daes.]

These sovereignty recognition prerequisites continue to this day and underpin all future negotiations from the unceded sovereignty position. These are the key issues confronting Australia today and cannot be put aside because some conservative Aboriginals and their non-Aboriginal advisors argue that this is too confronting for the Australian public. But the Sovereignty Movement has now got this matter right in the face of not just the politicians but in front of the Australian public and it will not go away, because the fight for freedom is never lost and it is time to face the truth.

Given that the Recognise campaign and promoters of Constitutional recognition are full of rhetoric with little to NO substance, the Sovereign Union is taking up the mantle from where the National Aboriginal Conference left off. With the authority and permission of the former Chairman of the National Aboriginal Conference, Mr Lyall Munro Snr and the Treaty sub-committee Chairman, Mr Ossie Cruse we now present what has never seen the light of day, thanks to the Bob Hawke labor government's shut down of the Treaty negotiations.

The Sovereign Union revisits the National Aboriginal Conference material resulting from extensive research and community consultations across Australia on how to negotiate and enshrine First Nations Sovereignty and inherent rights.

The most likely proposal to have been accepted at that time was to look at a Section 105A type constitutional amendment, which sets out the terms for Treaty-making and confirms the laws established by the treaties and/or agreements and that all such Treaties/Compacts/Agreements are binding on the Constitutions of the States and the laws of the Territories.

In the 1980s the National Aboriginal Conference's authority and power grew with confidence when the National Aboriginal Conference found support from the International Commission of Jurists (ICJ), who confirmed their commitment when presenting to the Senate Standing Committee on Constitutional and Legal Affairs, which was conducting the feasibility of a compact or 'Makarrata', between the Commonwealth and Aboriginal people. On 28 June 1982, Mr Gil Shaw presented to the Senate Standing Committee on Constitutional and Legal Affairs a recommendation that an amendment to the Constitution that the Treaty-making process should be the same form as Section 105A of the Australian Constitution, which would then enshrine Aboriginal inherent sovereign rights

In the International Commission of Jurists' submission the power of such a Section 105A type clause can be found in the High Court of Australia New South Wales v Commonwealth (1932) 46 CLR 155 at 177. By a majority of four to two, two of the majority judges Rich and Dixon JJ commented:

These considerations appear to us to be material to a proper understanding of the constitutional alterations effected by sec. 105A. Sub-sec. 5 of that section provides with respect to agreements of the description contained in sub-sec. 1 that every such agreement and any variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States, or in any law of the Parliament of the Commonwealth, or of any State. In our opinion the effect of this provision is to make any agreement of the required description obligatory upon the Commonwealth and the States, to place its operation and efficacy beyond the control of any law of any of the seven Parliaments, and to prevent any constitutional principle or provision operating to defeat or diminish or condition the obligatory force of the Agreement. [emphasis added]

This option also avoided using Section 51(26) of the Constitution. Drawing on the power of this legal opinion the National Aboriginal Conference agreed in principle with the proposed Section 105A type amendment and I now take this opportunity to include the NAC's draft of a section 105A-type proposal for public discussion.

The Senate Standing Committee on Constitutional and Legal Affairs presented its report to the national parliament in 1983 entitled Two Hundred Years Later. In this report the Senate Committee reported its version of a 105A type Constitutional amendment, which was its basis for the negotiation of Treaties/compacts/arrangements going forward, while the National Aboriginal Conference had its own version, a summary of which is included here.

  1. The Commonwealth may make agreements with bodies recognised as representative of the Aboriginal and Torres Strait Islander people of Australia with respect to the status and rights of these people within Australia including but not limited by the following:
    a) Restoration of Aboriginal proprietary rights to land and water and natural resources which were vested in the said people prior to 1770;

    b) Compensation for loss of land incapable of being restored to the said people or some of them, through a compensation fund drawing on 2.5% fiscal payment of the gross national product per annum for a period of not less than 50 years, which shall come into effect upon the date of this section being given assent by all parties concerned;

    c) Confirmation of self-determining programs with respect to health, education, employment,vocational training and welfare of said people or some of them shall be the responsibility of each Aboriginal Nation State;

    d) The law relating to the exercise of judicial power by the Commonwealth of Australia or any State or any Territory within Australia must incorporate various negotiated aspects of the continuing and ancient Law and culture of the said people;

    e) Any matters of concern which are determined to be of significance to the Aboriginal and Torres Strait Islander people including, but not limited to, the establishment of self-governance in each respective defined tribal Nation, having due regard for the Law and culture of Aboriginal and Torres Strait Islanders Peoples and to ensure their political, economic, social and educational advancement in the two tiers of governance (original ancient governance and contemporary) and by virtue of this, the right to freely pursue their economic, social and cultural development as is guaranteed under international law;

    f) The jurisdiction of all parks and national parks and existing crown reserves, including coastal marine parks be returned to the territorial jurisdiction of each respective Nation State whose Country and waters are defined;

    g) Aboriginal Spirituality and Dreaming is the fundamental 'religion' of all Aboriginal and Torres Strait Islander Peoples and Nations and its freedom and practice must be guaranteed and respected;

    h) All Treaties/compacts/agreements must incorporate the total protection of all Aboriginal and Torres Strait Islander cultural indicias, artworks (including rock art and engravings), sacred sites, sites of significance, including but not limited to natural springs, waterholes, soaks and coastal fishtraps and rockholes;

    i) Cultural heritage of Aboriginal and Torres Strait Islander people is central to their being and that any and all Treaties/compacts/agreements etc shall have the effect of locating the ownership of cultural heritage back within each Nation state and that any and all such agreements relating to cultural heritage shall supersede all existing State and Territory legislations and thereby vest all powers over cultural heritage within each Nation State or defined Territory(ies) and that sole jurisdiction shall belong to the Law men and Law women of these Nation States, which are signatories and/or parties to the Treaties/compacts/agreements.

    j) The right to maintain their own original national identity within their own sovereign State and subject to any agreement, shall have their sovereign right to dual citizenship;

  2. The Parliament shall have the power to make laws for validating any such agreement(s) made before the commencement of this section, (NB: at this time Native Title and Indigenous Land Use Agreements (ILUAs) did not exist).
  3. Any such agreement may be varied or rescinded by the agreement of all parties thereto and as such shall supersede any prior agreement for the purposes of this section and this section makes enabling powers to rescind and make void all current agreements, (NB: which today would include Indigenous Land Use Agreements because government's conditions for negotiating Indigenous Land Use Agreements is to grant absolute sovereign power and jurisdiction to the imposed colonial governments. This was not made clear to those Native Title groups at the time. In essence, these Indigenous Land Use Agreements stole the sovereign inherent rights of the Peoples without them being fully informed of the consequences and ramifications of the Indigenous Land Use Agreements.)
  4. The parliament shall have the power to make laws for the carrying out by the parties of any and all such agreements.
  5. Any laws passed pursuant to clauses 2 and 4 shall be binding upon the Commonwealth, States and Territories, notwithstanding anything contained in this Constitution or the Constitutions of the several States or any law of the Parliament of the Commonwealth or of any State or Territory.
  6. Any variation or alteration or rescinding of this section under this proposal shall only occur by a national referendum in accordance with this Constitution.

This proposal was settled on by the National Aboriginal Conference in the 1980s, because it was an achievable outcome for that period in our history and it created a way for every Aboriginal Nation to negotiate its own Treaty, compact or agreement and it avoided Nations being forced into a single national proposal, which has been the case too often when it comes to policies and practices on delivery of services to Aboriginal and Torres Strait Islanders people through out Australia. More importantly, it would give weight and recognition to the original sovereign identities of First Nations and Peoples.

Despite the Fraser government's in principle support for this choice of 105A as a way forward,
the National Aboriginal Conference could never publicly develop this policy to its fullest, because not too long after this in principle agreement a Federal election was called and Fraser lost to the Bob Hawke Labor party, which then crushed the whole series of negotiations and withdrew the funding from the National Aboriginal Conference and shut down of the Treaty process. Clearly the Labor party under Bob Hawke were running scared and made a big pint of the Barunga statement, where Bob Hawke committed to negotiating a Treaty, but like the colonial masters of the past he was full of rhetoric and no substance and he withdrew his commitment the next day, saying he was really talking about a compact or contract, not a Treaty under international law.

Decolonisation to end the continuing genocide

Since 1984, the Sovereign Union and the Sovereignty Movement have gained momentum and already five Aboriginal Nations have made Unilateral Declarations of Independence (UDIs), while other Peoples and Nations are making preparations for UDIs and are looking to the decolonisation process as the successful way forward.

Fundamentally, since the 1948 Atlantic Charter which broke up the British Empire, it is illegal under international law for a colonial foreign power to assert its law on some one else's Country. We must remember that the Australian Constitution is still an Act of the British Parliament. The introduction to the Australian Constitution confirms that Australia consists of a federation of colonial States and is is itself a colonial regime [para 4].

Aboriginal and Torres Strait Islander Peoples are not in the Constitution and were never considered British subjects and/or Australian citizens. Aboriginal Peoples across Australia were considered part of the flora and fauna and were deemed to be aliens in the Naturalisation Act 1903. Quick and Garran's Commentaries on the Constitution of the Commonwealth of Australia 1901 make it very clear that one is either a citizen or an alien, and that an alien is someone who is born out of the jurisdiction of the Queen, or who is not a British subject (with a few exceptions).


Then it was Section 51 (26) of the Australian Constitution which prevented Aboriginal and Torres Strait Islander people becoming citizens in 1948 Nationality and Citizenship Act 1948 (Cth).

The Commonwealth Government is now throwing millions of dollars at the Recognise campaign and associated activities in order to coerce Aboriginal and Torres Strait Islander Peoples into the Constitution by stealth, so that the Commonwealth government has the head of power to enact legislation that can forcefully assimilate us and derail the Sovereignty Movement and decolonisation. It is our advice that without understanding the Recognise campaign's proposed terms of a referendum the National Aboriginal Congress and the Recognise campaign promoters are falsely informing us that being included in the Constitution will not impact on the continuing sovereignty of First Nations and Peoples, but agreeing to be included is consenting to be ruled and governed by the colonial power. As Australia's Constitutional expert Professor George Williams has confirmed, the Commonwealth government cannot 'give' us our sovereignty, it is for us to just simply assert it.

The process of decolonisation incorporates the rights of the Peoples to be self-determining and the UN International Convention of Civil and Political Rights (ICCPR) calls upon all States to understand the need and recognise the right of all Peoples to have an identity and a nationality of their own choosing.

Assimilation in the modern world is genocide and Australia's methodology for enculturation in the guise of education is also genocidal. No matter how you look, or where ever you look in Australia, we have wall-to-wall genocidal assimilationist policies to make us one, requiring us to all become Christians, to 'go not the way of the heathen', and to speak the English language.

The governments within Australia have altered laws and suspended the effect of the elimination of racial discrimination laws, in order to destroy what is left of our ancient cultures and languages. The most devastating events in recent months have been the forced closure of homelands to clear the lands of original owners for mining and other development, as we now find that all states and territory governments are destroying with impunity our sacred cultural sites and spiritual icons. They are wiping out our history, destroying the authority and power of the Elders and Lawmen and Law women.

Some young and educated Aboriginal people of the modern era are themselves leading the way to change our practices, our Stories, in order to fit within the modern world. Every where you go in this country the Lawmen and Law women and Elders will always say: We cannot change our Law and we cannot change the way we practice it.

The evil desecration and systematic destruction of our culture and the bastardisation of our languages also equates to genocide because our Old Ones who hold the knowledge, language, Song, Dance and Beliefs have become distraught at their inability to stop the absolute destruction of the oldest living culture on earth.

In recent days this destruction has taken on a new form, which is seemingly beyond our grassroots' ability to stop because we do not have access to the mainstream media, which focuses on Marcia Langton, Noel Person, Warren Mundine, Lowitja Donaghue, the Dodson brothers and their like, who the mainstream media put up as Aboriginal leaders. If their advice was so good in the past then why do we have the sort of devastating problems we continue to have?

The Sovereign Union and the Sovereignty Movement are leading the way for self-determination and independence, while maintaining our identity, languages and spiritual connection through our ancient Songlines and ceremonies.

We are promoting self-governance and independence according to our Law, culture and custom, which are now recognised by the common law of Australia courtesy of the High Court Mabo (No.2) judgment.

The Unilateral Declarations of Independence (UDIs) by five Aboriginal Nation States have caused the Commonwealth government of Australia to seriously up the ante, by deceitfully promoting the Recognise campaign as a beneficial process for First Nations Peoples. But, as discussed, in reality the referendum would confer colonial powers to legally enforce their assimilation policies. Currently, Aboriginal people are not legally within the Constitution and the Commonwealth government can only make laws for Aboriginal people under Section 51 (26) of the Constitution.

The Aboriginal and Torres Strait Islander Act 2005 is an example of this and close reading of the Act reveals that the Commonwealth of Australia has already signed up to the decolonisation process and has imported it into domestic law. The Preamble of this Act imports international law:

... AND WHEREAS the Australian Government has acted to protect the rights of all of its citizens, and in particular its indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through:
(a) the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and other standard-setting instruments such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; and

(b) the acceptance of the Universal Declaration of Human Rights:

The Racial Discrimination Act 1975, which imports the International Convention on the Elimination of All Forms of Racial Discrimination into the common law of Australia, reveals that its Schedule 1, incorporates the Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960 (General Assembly resolution 1514 (XV), which calls for all United Nations State parties to begin a speedy end to the scourge of colonialism.

The Sovereignty Movement is about decolonisation from within and the Australian government can't even get this right, because they have successfully dumbed down the population on the issues of Human Rights. The majority of the Australian population is descended from immigrant families, who are not properly aware of the true plight of Aboriginal Nations and Peoples within Australia and are themselves happy and settled in a country that they consider has few problems. They believe the media hype about the 'good' things happening through the Recognise campaign and reconciliation, but fail to understand the failures of Commonwealth government's Close the Gap campaign, mainly because they don't want to know about it or are not interested. Such attitudes underscored by denial gave rise to Hitler and his horrific regime.

Unsurprisingly, Noel Pearson does not have the answers for our people but is trotted out by the government and the media as their prize show pony. Noel Pearson only comes up with new ideas for assimilation. Patrick Dodson's multimillion dollar Reconciliation campaign, to teach white and black people how to shake hands and say g'day and take a stroll over the Harbour Bridge together, was an expensive insult to the intelligence of all who saw the flaws in such a campaign.

The Australian Government with its present Recognise campaign is violating the law by not funding both sides of the argument and again insulting the intelligence of many good people. In the United Nations Australia tries to put itself up as a leading arbiter of good common sense governance, yet fails miserably to practice what it preaches in its own backyard.

Decolonisation requires any colonial country to ensure, among other things, that all decolonisation processes are preceded by adequate and unbiased campaigns of political education. This is far from the case in Australia where even NITV, National Indigenous TV, is signed up to promote the Recognise campaign and, as stated previously Aboriginal funding is tied to acceptance of the Recognise campaign.

The time has come to run a campaign similar the Kevin Gilbert's Treaty '88 grassroots campaign, which drew the clear distinction between Sovereign Treaties, which are negotiated under the Vienna Convention on the Law of Treaties, affirm Nations' sovereignty and are constitutional without the need for a referendum. On the other hand, compacts and agreements are contracts in essence and easily overridden at a later date.

[Aboriginal Sovereignty, Justice, the Law and Land, 1987].

As the United Nations approaches its 70th anniversary it is refocusing on the decolonisation agenda. In May this year the Caribbean Regional Seminar on the implementation of the Third International Decade for the Eradication of Colonialism: the United Nations at 70: taking stock of the decolonization agenda was held in Managua, Nicaragua from 19 – 21 May 2015. Australia was present as an observer. While the seminar focused on the situation of the remaining seventeen non-self-governing territories, some countries took a wider perspective. .
'The representative of Venezuela called on those seeking self-determination to prevent their colonizers from dictating the pace their independence.  Territories should not fear their lack of economic preparation as a reason not to look towards independence.' 

The Russian Federation stated:

It is of special importance to discuss the progress of decolonization in 2015, when the whole humanity is celebrating the 70th anniversary of the United Nations. The Third International Decade for eradication of colonialism should be a success story, And I will echo the previous speakers – we need to act rather than talk. We have no right to fail and no time to lose. 

This was preceded by a Decolonization Alliance side event at the Church Centre for the United Nations on 13 May 2015, which examined Repentance is Decolonization, in which the following questions were explored:

In what ways can the Church acknowledge its complicity to colonization, especially through the “doctrine of discovery”? What would constitute genuine, tangible and lasting acts of repentance to eradicate colonization? How can we together go about achieving this? 

It is open dialogue that we need, honesty and integrity without any encumbrances or reservations, not hidden agendas, hollow rhetoric and coercion.

On 22 September 2014 the UN General Assembly World Conference on Indigenous Peoples adopted the following resolutions, which are steps on the way to self-determination:

  1. We encourage Governments to recognize the significant contribution of indigenous peoples to the promotion of sustainable development, in order to achieve a just balance among the economic, social and environmental needs of present and future generations, and the need to promote harmony with nature to protect our planet and its ecosystems, known as Mother Earth in a number of countries and regions.
  2. 35. We commit ourselves to respecting the contributions of indigenous peoples to ecosystem management and sustainable development, including knowledge acquired through experience in hunting, gathering, fishing, pastoralism and agriculture, as well as their sciences, technologies and cultures.
  3. 36. We confirm that indigenous peoples’ knowledge and strategies to sustain their environment should be respected and taken into account when we develop national and international approaches to climate change mitigation and adaptation.
  4. 37. We note that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In this regard, we commit ourselves to giving due consideration to all the rights of indigenous peoples in the elaboration of the post-2015 development agenda.
  5. [Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, Resolution adopted by the General Assembly on 22 September 2014, U.N. Doc. A/RES/69/2 (2014).]

In conclusion, it must be recognised and accepted that all future negotiations in Australia between First Nations Peoples sovereign States and the Commonwealth must be guided by the rules set out in the 1969 Vienna Convention on the Law of Treaties when negotiating Treaties, compacts or agreements between sovereign States. Australia acceded to the Vienna Convention on the Law of Treaties on 13 June 1974 with no reservations or objections and it now underpins treaties with other countries.

First Nations Peoples of the 'Australian' continent are pre-existing sovereign states with a land base, population, Law and ability to enter into international negotiations and the right to decolonise.

Each First Nation can run its own campaign to educate its people on how to enshrine sovereignty and decolonise in the modern context and how not to be tricked into ceding pre-existing and continuing inherent sovereign rights.

The men who wrote the Constitution of Australia gathered in Melbourne from across the continent (colonies). They all shared a vision of one white Australian nation. Pictured: The Australasian Federation Conference delegates, Melbourne, February 1890.
(Photographer: Johnstone, O'Shannessy & Co. NAA: A1200, L13363)
At the same time the invaders decided to draw up a constitution in Melbourne (1890), The surviving First Nations people across the continent were living in hovels on unwanted land, or as in this case, forced to work on chain gangs, chained to each other or to wheelbarrows, as is the case here.
Battye Library, Western Australia More chain gang images
Ghillar Michael Anderson
Convenor of Sovereign Union of First Nations and Peoples in Australia
and Head of State of the Euahlayi Peoples Republic
Mogila Station, Goodooga NSW 2838 Mob: 0427 292 492 -