Aboriginal Sovereignty and Foreign Law
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Arguments relating to Aboriginal Sovereignty could well benefit from integration with the notion that Australia is operating in a legal vacuum: that it is an independent country which has never established its own legal fount, relying and depending upon foreign law.1
If this is so, then it could follow that the present law of Australia is, in fact, Aboriginal law: English Colonial imposition having been extinguished by choice on the British side and necessarily by independence on the other, with no new fount of law established.
Then reconciliation becomes a matter of every 'Australian' taking part in the creation of our Constitution.
1. Briefly and non-expertly, the assertion that Australia is a legal vacuum arises from the following:
1. The Constitution is an Act of the UK Government;
2. Since Australia became an independent & sovereign nation (Versailles 1920 or earlier), British law is law of a foreign country;
3. One cannot apply the laws of a foreign country to the citizens of a sovereign state.[Hitler did it in Poland for example]
4. At independence, the citizens/occupants of Australia should have been given for approval or consulted by referendum (not a Referendum under the Constitution -- Statute of Westminster) to ascertain their chosen rule of law. (Note that this consultation would have included aboriginal occupants of Australia).
5. No such consultation was carried out (it would have broken down existing power structures probably -- at least made life very difficult for the 'masters' of society at the time), and what has been described as a massive confidence trick was carried out on Austrtalians whereby everything continued as before. But the law being applied is foreign law or derived from foreign law and this is improper (indeed an act of war)under international law.As some American legal experts have noted, if an independent and sovereign country does not automatically sever from the law of its colonisers (and cannot), then the USA should still be operating under UK law and as a colony of England. Else the USA is in a legal vacuum!
6. Further, the various letters patent etc. of the UK which give authority under their law have been withdrawn. The UK has accepted and stated for many years that Australia is a sovereign and independent nation and beyond its legal right or reach.
7. How can an Australian judge or politician citizen of a sovereign nation (ie Australia) act to enforce the law of a foreign country? Especially when that foreign country says that it no longer has any legal reach. The word traitor would have been used in the past.
8. It follows that the Courts have no authority, our Parliaments have no authority and nothing we do has any basis in law at all.
9. These arguments -- and they are accepted by very senior members of the legal fraternity -- lead to the conclusion that the dereliction of successive community leaders (read Prime Ministers and Attorneys-General) has left Australia with no valid law. A very serious matter and one which is certainly known to Government.Why have they not acted to put the matter on a proper footing before now?
10. The further and new argument, however, is that in this legal vacuum we slip automatically back into any law that was valid for Australia. This, I've suggested, leaves Koori law as the only present valid law of Australia -- under the principles of international law.
Note that this makes the present Republican debate of Aust. an absolute nonsense. We are a Republic -- there is no choice or question. The only way that can not be so is if Australians by simple majority, agree to place themselves under British law and become a colony of Britain (and Britain agrees to this).
I am not a lawyer, and there is much more detail to insert in the above arguments, but I have written this treatise in some haste as a stream of consciousness. But the thread of logic is not a matter of legal opinion -- rather it is historical fact. I'm personally convinced.
Note that the consequences of this mess cannot even be argued under our current legal regime since the challenge is that we don't have one. For me, then, the ONLY way to proceed is a full Constitutional development procedure to be set in train now. And the issues of reconciliation would fall to the public domain -- not the arena of politics.
Please feel free to contribute to this discourse.
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