Wrong legal advice by Professors on Referendum and Sovereignty

Ghillar, Michael Anderson Sovereign Union 4 May 2017

Critique of wrong legal advice from two professors on Referendum outcomes in lead-up to the Referendum Council meeting at Uluru 24-26 May 2017

"How can the governments talk about deliberative democracy when the Referendum Council, which has a budget of millions of dollars tells us, because of the lack of money, they cannot organise community meetings and greater representation at their 12 'Dialogue' regional meetings? To ban people from attending these Dialogue meetings, such as they have done in many places, the latest one being in Perth, cannot in an way shape or form be seen, or be construed, as true deliberative democracy, because our Peoples are being denied a right to be fully informed and to contribute their point of view in a process that will affect our children's children inheritance and sovereign status.

The denial of a voice in a so-called democratic society is but dictatorship and tyranny.

If Referendum Council Co-Chair, Pat Anderson's history of participation in Aboriginal Affairs is used as a measuring tool of success, heaven knows what we can end up with, considering we now have military law controlling First Nations' land and communities through the Northern Territory Intervention, which came from her "Little Children Are Sacred Report". This did not stop there. We now have the Basic Card being rolled out in Aboriginal communities across the continent. It is very constraining and demoralises the people knowing that their social services payments are being restricted in terms of how much independent money they have.

Then we look at Professor Megan Davis, who is also on the Referendum Council, and we ask the same thing. What has she ever done to free her People and gain the rights that we are entitled to under international law and Human Rights Conventions? Megan is promoted as a leading legal expert in constitutional reform, primarily because she is a professor and held the position of the Chair of the Permanent Forum at the United Nations. But when we look at this body within the UN, it is in fact a lame duck and of no real consequence in terms of liberation and independence.

Our First Nations Peoples need to understand that the Indigenous Permanent Forum at the UN is not about Human Rights and equal suffrage, but rather about informing developers and mining companies of the need to conduct best practice. This is then taken up by institutions such as the World Bank and IMF when trans/multinational corporations apply for development funds to establish their major extractive industries on and within Indigenous lands and territories throughout the world. The Permanent Forum has failed to effect positive change, because we still have no veto rights, nor power to protect and save our sacred sites around the world from these extractive industries. In the Permanent Forum we are not even allowed to criticise the colonial power/the UN Member State that oppresses us.

One would have thought that people like Megan Davis and Michael Dodson, together with Les Malezer, would have understood the true nature and purpose of the Permanent Forum and directed it to addressing the protecting our sacred lands and places of spiritual worship from exploitation and destruction by these transnational companies. It should also be pointed out that participants to the Permanent Forum are not themselves true NGOs, Non-government Organisations, in particular Australia. I might add the United Nations already knows this. The majority delegates that attend and represent Aboriginal interests at the Permanent Forum are government funded and not true NGOs .

It must be said therefore that since these people delude themselves into believing they are contributing towards justice for our Peoples, then it is no wonder why they cannot see themselves as being people running with a deceitful lie for and on behalf of the government, in order to promote their own status and achievements within a non-Aboriginal society.

What hurts most is the fact that people like Megan are assisting our oppressor, the occupying colonial power to completely bury us, while peddling a deceitful campaign orchestrated by the Referendum Council to the public to win their hearts and minds by pulling at the heart strings when they say to the public: 'Don't you think its time we recognised our poor First Nations people in our constitution?' Of course the public will support such a sob story but the public are not fully aware of the hidden agendas to steal our patrimony by assimilating us into their colonial Constitution.

The following extract from a book co-authored by Professors Megan Davis & George Williams called 'Everything you need to know about the Referendum to Recognise Indigenous Australians' has been used by many misinformed people to support the concept of constitutional inclusion of First Nations Peoples into the Australian Constitution.

In the accompanying video https://youtu.be/SokvYKWAhRM I analyse the false reasoning of the two professors regarding the impact of the proposed Referendum on First Nations' sovereignty.

I quote from end of page 121 through to top of page 122:

"Underlying the High Court's reasoning is the view that the sovereignty of Australia's first peoples was displaced by British settlement and the introduction of their law. This was brought about by the assertion by the British of their sovereignty over the Australian continent. All of these occurred before the Australian Constitution came into force in 1901. That document created a new nation upon a continent that the British already regarded as theirs. Changing the Constitution in 1967 did not alter this, nor would changing the Constitution today.
 
"This of course represents the position under Australian law, of which the Constitution is the ultimate expression. It does not affect how Aboriginal people view their own sovereignty. As a result, it does not prevent them from asserting their own independence and the continuing validity of their laws and customs.
 
"Quite apart from these arguments, none of the changes proposed to the Constitution in any way touch upon anything to do with sovereignty. Voting Yes in the recognition referendum would therefore not amount to any surrender of sovereignty, and none of the changes suggest that Aboriginal people are submitting to the nation state or surrendering their claims to self-government, If that was the intention, a different set of words would need to be inserted into the Constitution. It has not been suggested that this should occur. Doing so would run counter to the idea of recognising Aboriginal and Torres Strait Islander peoples in the document, which is to acknowledge, rather than to suppress, Australia's long Indigenous history."

. . . Go Back to article

Transcript of video critique by Ghillar, Michael Anderson, of an extract from
'Everything you need to know about the Referendum to Recognise Indigenous Australians'
by Megan Davis & George Williams.

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Ghillar, Michael Anderson: There's a conference coming up soon of selected Aboriginal People, who were hand-picked to attend regional meetings about the Referendum in respect to the inclusion of Aboriginal People in the Constitution. I'm amazed, but at the same time I'm not shocked that they've engaged people like Pat Anderson and the likes of Noel Pearson, and people like Megan Davis and people like ... You know the New South Wales Land Council together with other land councils around this country. The land councils, by the way, were ... Particularly in the Federation of Land Councils outside of New South Wales, were the mastermind of a fellow called Dr H.C. Coombs, the late 'Nugget' Coombs as they called him.
 
Now this fellow really got peeved off with Malcolm Fraser, because Fraser didn't want him associated with negotiating a treaty and the terms of a treaty. And so he and his white support group, treaty support group were disbanded when they realised that us Murris were pretty smart, and that we're engaging some very clever lawyers and economists, political scientists, to work with us to talk about the establishment of a framework for a national treaty under the old NAC. [National Aboriginal Conference]
 
Interviewer: What years are you talking about?
 
Ghillar, Michael Anderson: All of that formulation was occurring from '79 right through to 1985, so there was this long period where a lot of community research was done, and they were not regionalized meetings. They were going into individual communities and talking to people. The only criticism that was coming back from the likes of Lois O'Donaghue and others was that we were talking to people in English, and that they should be given data and information in their own languages, whether it be in written form, or whether it be in video form, and we agreed with that. Everybody agreed with that. That that was the proper way of doing things. So that was the criticism for that treaty process back then, saying that people were not fully informed, and that they were not being told in their language of all of this. They were arguing that there was not two sides to the story here, you know. Okay this is the pro and this is the con.
 
Now, here we only have a con operation going on in respect to the treaty. Sorry, the Referendum. And so when I look at this here, I'm informed that there's a book authored by Megan Davis and George Williams called, "Everything You Need to Know About the Referendum to Recognise Indigenous Australians". Now when you look at this here, there's some very interesting comments in this paper, book. Like here, all right, one quote from the end of page 121 to the top of 122, and so on. And this one here says, "Underlying the High Court reasoning is the view that the sovereignty of Australia's First Peoples was displaced by British settlement and the introduction of their law." Now I find that quite extraordinary, because here you have this fellow, this Professor George Williams, ... saying that our sovereignty was displaced by the introduction of their law, British law.
 
That's absurd, because when they settled Australia they came here as a penal colony. So there was no civil law, there was only one law. The Admiralty brought them here, and they were in Australia under Admiralty Law, but operating a prison, operating a penal colony. So this here, there was no civil law came into Australia at that time at all. It was just a prison, all right? Now then they go, "This was brought about by the assertion by the British of their sovereignty over the Australian Continent." Now, what happened here, was that as they're saying there that to be able to assert their sovereignty as we know, they did it on the basis of there was no one here, terra nullius.
 
And so, the King planted a flag and everything that's wherever he planted, and if there's just one continuous land mass, he owned everything. Now, if you go back in history, you'll see where the King stood on, I think, somewhere near Dover or some place over in England, looked across, and he might have been able to see on a clear day, part of Calais over on France land and then, all of a sudden, he waved his hand and said, "I own all that." And of course, anybody with any common sense would tell you that's absolutely ridiculous. And so, that statement there is just as ridiculous as someone standing on Dover and saying, "Oh I can see land over there, so I own that too." Right? Just nevermind the people living on it.
 
Now, that's just absurd. So there is a formula, and in international law, at the time when they did that, that made that very different. And they totally ignored all those laws. Now then they go, "All these occurred before the Australian Constitution came into force in 1901." Now, I have absolutely no idea why they bother to say that, because you see, the Federation had nothing to do with the sovereignty that was asserted back then. Because all those colonial states, the colonies, New South Wales, Victoria, Queensland, West Australia, South Australia, Tasmania, were already in existence and so they were claiming [sovereignty]. So through those colonies, that's where they were asserting [sovereignty] and forming government, in those colonies.
 
So to come up and say, oh you know, and to think that the Australian Constitution had something to do with British assertion of sovereignty is absurd. So you can throw that one aside and all they did was just create another tier of government. That's all they did with the 1901 Constitution. Then you've got, "That document created a new nation upon a continent that the British already regarded as theirs." So they make their own statement and confirm that that's the case.
 
"Changing the Constitution in 1967 did not alter this, nor would changing the Constitution today." Now for educated people to write that is absolutely irresponsible, because that's misleading, completely misleading altogether. Because you see, when they say that changing the Constitution in 1967, did not alter this, there is something that's important, and that is that if you go to '63, '64, and '65 and look at the Hansards when they were talking about establishing the Bill to get the 1967 Referendum up, you will see in there where Beasley Sr. said that he led a parliamentary inquiry around Australia looking at Aboriginal Peoples' citizenship and he said in the Parliament, that it's ridiculous that we here in Australia have a Federation, and we still do not recognise Aborigines as citizens. Okay?
 
So if he was saying that in '63, '65, well then when did they make us citizens, because the 1967 referendum certainly didn't do that? And so this fellow here, George Williams, is missing the mark as a constitutional expert, because he professes he is. No doubt he is, right? He has that status. But, then they go here and they say that , "nor would changing the Constitution change that today". Now that's not quite true either, right? And so we need to go through that. Right.
 
"This of course represents the position under the Australian law of which the Constitution is the ultimate expression. It does not affect how Aboriginal people view their own sovereignty." That may be so, but there's a caveat here when you say that. Let me just go through the rest of this first.
 
Interviewer: Maybe you should explain what a caveat is.
 
Ghillar, Michael Anderson: No, no, no, I'll talk to that here. "As a result it does not prevent them," being us Murris, Yolngu, Anangu People, "from asserting their own independence and the continuing validity of their laws and culture." Now you see how clever they wrote that? They don't say continuing to exercise our sovereignty, but we can continue to exercise our Law and culture. Right? So they show themselves up in that paragraph.

So the caveat that I talk about, when we say this here, the caveat is that Aboriginal People view their own sovereignty. A caveat is when you place something on top to hold it or to have another interest in it, and so you're saying there is another interest and that has to be represented. So I'm not going to agree with that because there's something else that should be included in this here. And so that's why you say you've put a caveat on it, because there is another interest. Okay? That has to be considered.

Now, here. Then they go, "Quite apart from these arguments, none of the changes proposed to the Constitution in any way touch on anything to do with sovereignty." Not true, because you see the moment you put the word Aboriginal in there, and you give them a constitutional head of power to pass laws for Aborigines and Torres Strait Islanders, well then they can pass laws to control us any way they want to. Because they got that power, and again unless you say, unless it is specifically stated that inclusion in the Constitution, does not impact continuing Aboriginal sovereignty under their law and culture, well then that's a furphy. That's an absolute lie, and so once they put the word in there, you've given a constitutional head of power for the government, the executive government of Australia to pass any kind of law specifically for Aboriginal Torres Strait Islander people.

Right now, as it stands, under Section 51, Subsection 26, they can pass laws for the Aboriginal race. So what does that mean? That means we're outside the system. We're not inside the system, and I don't know how to say it other than just like that, because you're either on the inside, or you're on the outside. You're not in between when it comes to law like that. So at present under the Australian Constitution, we are a race outside the system. And if you don't believe me, read the 2005 Aboriginal and Torres Strait Islanders Act, Commonwealth law, and you will see in there, that the definition means that that's for the Aboriginal and Torres Strait Islander race. So we're an independent race. We are not citizens of this country. We're outside the system, and Robert Menzies warned them of that. You take the word Aboriginal out of there, and you say that we can pass laws for Aboriginal People, that's not what the '67 Referendum said. The Referendum wiped out, "except the Aborigines of the states.” So that merely made it possible for them to pass laws for that race of Aborigines in the states. So they could reach into the state and pass a law for them. Whereas previously when it said, "except the Aborigines of the states", that meant the Commonwealth couldn't pass law for Aboriginal people.

Now the question is, what power do the state Parliaments have to pass laws for Aborigines? Because, you see, constitutions is what everybody tells you that governs you. So all the powers in the Constitution that establish that Parliament and the powers of that Parliament, if there's no constitutional head of power that allows the state government even to pass laws for Aborigines, then the state should not be passing laws for Aboriginal people at all. They don't have a constitutional head of power. So in the Constitution here, the Australian Constitution, they're trying to put the word Aboriginal in there so they can get the power to pass laws for Aborigines.

And then to say here, "Voting 'Yes' in the recognition referendum would therefore not amount to any surrender of sovereignty." Who are they trying to kid? Whilst they may say, no, we're not surrendering, Aboriginal People are not surrendering, the Australian government are not going to use the word Aboriginal sovereignty at all. They can't, because the moment they mention the word Aboriginal sovereignty, they wipe themselves out of existence. And so then you've got two societies living on one land, one passing laws for the immigrants and the British subjects, who now live here. But the other fellows who are the Aboriginal and Torres Strait Islanders, we can't pass laws for them, but we use the race power to do it and control them and have them subjected to our laws. But then when the High Court came down in Mabo and said that our laws and culture survived, then we, me, under my Law and culture, I'm loyal to my Law and culture. I'm loyal to Aboriginal Law and culture. I'm not loyal to a whitefella's culture. I'm not loyal to the British legal system.

And so this here, where they say, "will not surrender our sovereignty", they will not say that will they? I bet they are not prepared to put anything in there to say that this referendum will not impact in any way whatsoever or shall be construed to impact or affect the continuing sovereignty of Aboriginal Torres Strait Islander People. That's the wording that's got to be put in there if they're not going to impact on our sovereignty. That's not going to happen. That's not going to happen at all.
 
Now, so, then you've got here, then Megan Davis and them go on, "And none of the changes suggest that Aboriginal People are submitting to the nations, state or surrendering their claim to self-government." What a lot of rot, because it has to be stated. So they're going to have to write that up as a statement in this Constitutional Referendum. So this is what gives us cover. If they're not going to write that up in the constitution as a preambular statement, a legal statement to any referendum, then this is all just a lot of political rhetoric to try and pretend to the Aboriginal People, "Oh look we've got George Williams here, this big professor of law, and this Megan Davis, an Aboriginal professor, an Aboriginal person who've been in the United Nation and Chair of the Permanent Forum." So what? These people are misrepresenting what's going on. And these people here are worse than Captain Cook and the first mistake that was made, and the first theft that was made.
 
Unless what they're saying here, is stipulated in writing in a preambular statement to any Constitutional Referendum, so the public knows that this is not going to happen. Well then this is all a waste of time. It's a lie. It's deceiving the people about the real truth of what's going to happen here. And so those Aboriginal People over there, who are going to Uluru, we just need to make sure that those people understand that they do not represent their nation states. What they're using is a Western Democratic process, so-called, to get Aboriginal voices heard so that they can give government direction about the grassroots Peoples' interest in this. That's not happening.
 
I was in Western Australia in the last couple of days, and the Bropho family went to go into the meeting, and they blocked them. They banned them from going into the meeting in Perth. As they've done with other people in other places, and tried to shut them down, because they said, "Oh no you were not invited as a delegate. You were not invited as a delegate, therefore you can't be elected to go to Uluru." So we're not going to pay your way. What happens to the rest of the people out there in those isolated communities, rural communities, who don't speak this language, and don't understand what's going on? They are deceiving our People. This is a rogue movement by this Referendum Council. Those Referendum Council, truly, they need to be exposed for one of the greatest crimes about to be committed on Aboriginal People in this country. And it's worse than James Cook, worse than Phillip, and it's worse than a lot of those massacres, because here they are, they're cutting our throats while we're looking at them. And they're stabbing us in the back and deceiving us as they talk to us.

You know this is a horrible way to watch our People die, and be consumed by an illegal system, and these fellows think they're doing the right thing by us. This is one of the greatest deceits of all time. And if you talk about genocide, when this here happens here, we got no right to say no, because the executive government will be given the powers to pass laws for Aboriginal and Torres Strait Islander People. If that's what you want, well then my mob, we say: You pass it for the people who agree with it, but us mob here Euahlayi, and no doubt I think the Gomeroi People will say: We are not included in this. Yeah? All you other fellows who wanted to be included in it, go ahead if you want to give all that away. Go and talk to Megan Davis and George Williams and all them clowns that are running around on that council.

That council are the most dangerous group of people ever, and so people need to really think about what they're doing, and this is not about status. This is not about getting a good job. This is not about becoming famous. "I was on the Referendum Council, and I got this passed in the Referendum, and my name goes down in history." Your name will go down in history, and you will be - cursed will be your footprints on this earth, because you will have committed a major crime against our People.
 
Interviewer: One last question, so can you explain why there's this massive millions of dollars poured in, why it's so urgent for them to put Aboriginal People in the Constitution?
 
Ghillar, Michael Anderson: I have absolutely no idea why the urgency. All of a sudden, after 2011, when we were told by the United Nations, you have to reset your relationship with Aboriginal People. And of course you go back to all the stuff that we've been doing with the UDIs, Universal Declarations of Independence, and we've been writing to the states and telling them you no longer have authority. And the fact that we're creating an environment where those of us who are pushing sovereignty are saying, "Well wait a minute, you can't pass those laws for us. You can't impact on us like that there. You don't have those powers anymore because we have contested sovereignty here."
 
I believe that there's all of a sudden, a sudden push, and according to that advice by the Sir Samuel Griffith's Society of Lawyers to John Howard in 1998. They were saying we've got to become familiar with all the international laws that the Aboriginal People are getting in the United Nations, and are being supported in terms of their rights in their countries; look at the decolonization process; and the way in which we're pushing UDIs now, which are accepted internationally. There are several international advisory opinions to the United Nations Security Council on the UDIs and supporting the right of People to rebel against oppressive and tyrannical rule, and free themselves from subjugation by colonial rule. So we get outside of that system and we have a right to self-determination.

Now instead of Australia trying to support us in this here, they're oppressing us. They're pushing us. And so they've started a regime, and they're spending millions and millions of dollars on trying to convince the Australian public that, "Oh look, don't you think it's time that we recognise the Aborigines in the Constitution?" They're not even telling the Australian public what's going on. They're not telling the Australian public what will happen as a consequence of this Referendum if it gets up. And quite frankly, us Blackfellas ... when we fought for rights before, this is a time when we really need to get out there and have our guts kicked in to show to the public we're not going to lay down, die here. We're not going to let this happen. And as I said before, this is evil, and it is going to be so destructive. It's going to wipe out all our kids' rights in the future.
 
So for those people who say, "Oh I'm talking about ... What about my grandchildren and great-grandchildren and great-great-grandchildren?" Well if you say that, act on it, and protect their rights. That's what has to happen. We can't allow this to happen. No.

29 April 2017, Canberra.