Saturday 23 January 2016

How Aboriginal Sovereignty In Australia Has Been Legally Extinguished

How Aboriginal Sovereignty In Australia Has Been Legally Extinguished
 
From time to time I am contacted by Aboriginal Australians, the First Australians, in order to press claims for Aboriginal Sovereignty over The Commonwealth of Australia. The question usually leads to an uncomfortable discussion in which I regrettably explain that although claims for Aboriginal sovereignty may be historically and morally justified, they are not recognised in Australian Law.
 
Some of the confusion arises from the High Court's decision in Mabo (No.2) which recognised the existence of Native Title and overturned the legal fiction of "Terra Nullius"; by which the rights and interests of indigenous inhabitants in land were treated as non-existent.
 
The Court in Mabo (No.2) formulated the concept of "Native Title" from within the existing framework of Australian Law and it did not reinstate Aboriginal sovereignty over our nation. In fact, that proposition was explicitly rejected by the court.  
 
The position was also considered in the 2002 case Members of the Yorta Yorta Aboriginal Community v Victoria, where Chief Justice Gleeson, Justice Gummow and Justice Hayne held that 'what the assertion of sovereignty by the British Crown [over Australia] necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty'
 
In Coe v The Commonwealth of Australia  the High Court considered the circularity of challenging the sovereignty of a nation within a court whose jurisdiction comes from the powers vested in that nation. 
In proceedings instituted in the High Court in 1978, Wiradjuri man Paul Coe and others applied for leave to amend a statement of claim to allege, among other things, that the proclamations by Cook, Phillip and others and the settlement that followed 'wrongfully treated the continent now known as Australia as terra nullius whereas it was occupied by the sovereign aboriginal nation', and that 'the aboriginal people ... were entitled not to be dispossessed ... without bilateral treaty, lawful compensation and/or lawful international intervention'. In refusing the application, Justice Gibbs held that '[t]he contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain'.24 Justice Jacobs concluded that 'the Crown's proclamation of sovereignty and sovereign possession ... are not cognizable in a court exercising jurisdiction under that sovereignty which is sought to be challenged'.25
 
The Report of the Expert Panel for the Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution movement includes a chapter on sovereignty which is a clear summary of the legal situation and it reads as follows:
 

9 The question of sovereignty

9.1 Historical issues

At consultations and in submissions to the Panel, there were numerous calls for a reappraisal of currently accepted perceptions of the historical relationship between indigenous and non-indigenous Australians from the time of European settlement. One of the significant issues that emerged was the aspiration of some Aboriginal and Torres Strait Islander peoples for recognition of their sovereign status.1
Numerous commentators have observed that before colonisation, Aboriginal and Torres Strait Islander nations and peoples lived under laws and customs that governed their relationships with their lands and waters, with each other, and with other nations and peoples. They were self-governing peoples exercising sovereignty over their lands and waters.2 On what basis, then, did British colonisation proceed in the several colonies?3 As noted in Chapter 1, when Captain James Cook first visited the east coast of Australia in 1770, he carried instructions from the Admiralty, issued in 1768, that provided, among other things: 'You are also with the consent of the natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain.'4 By the time Arthur Phillip was commissioned to lead the First Fleet and establish a settlement in Australia, his instructions were silent in relation to the 'consent of the natives'.5 Phillip's instructions authorised the grant of land to those who would 'improve it'.6 The instructions assumed that Australia was terra nullius or belonged to no-one. As discussed in Chapter 1, the subsequent occupation of the country and land law in the colony proceeded on the fiction of terra nullius.
While the doctrine of terra nullius meant that the colonial authorities did not recognise Aboriginal and Torres Strait Islander legal systems, the day-to-day lives of many Aboriginal and Torres Strait Islander peoples continued to be regulated by their distinct laws and cultural practices.7 In a number of early decisions of the Supreme Court of New South Wales, it was held that Aboriginal people were not subject to colonial criminal laws for crimes committed by themselves upon themselves. In 1829, in R v Ballard Justice Dowling held:
Until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions even if such interference were practicable.8
In 1841, in R v Bonjon the defendant argued that 'the Aborigines of New South Wales were a domestic dependent nation, internally self-governing' as were the American Indians.9 Justice Willis held that the Supreme Court of New South Wales had no jurisdiction to proceed with the trial of Bonjon, who had been accused of the murder of another Aboriginal person, observing as follows:
Europeans have entered their borders uninvited, and when there, have not only acted as if they were the undoubted lords of the soil, but have punished the natives as aggressors if they evinced a disposition to live in their own country. If they have been found upon their own property (and this is said with reference to the Australian Aborigines) they have been hunted as thieves and robbers—they have been driven back into the interiors as if they were dogs or kangaroos.10
Justice Willis also observed that the Aboriginal people 'had laws which should have been operative', and that 'the Colony ... was neither an occupied place, nor was it obtained by right of conquest and driving out the natives, nor by treaties'. Rather, Aboriginal people's enjoyment of their customary rights was associated with their status as a domestic dependent nation. Justice Willis regretted that no treaty was made with the Aboriginal people, 'no terms defined for their internal government, civilisation and protection'. He reasoned that Aboriginal people remained 'unconquered and free, but dependent tribes', entitled to be regarded as 'self-governing communities'. Their rights 'as distinct people' could not be considered to have been 'tacitly surrendered'. As they were 'by no means devoid of legal capacity' and had 'laws and usages of their own', 'treaties should be made with them'. The colonists were 'uninvited intruders', the Aborigines 'the native sovereigns of the soil'.11
These early decisions of the New South Wales Supreme Court suggest a familiarity with the 'domestic dependent nations' jurisprudence originating in what has been called the 'Marshall trilogy' of decisions of the United States Supreme Court. In the first of the trilogy, Johnson v M'Intosh,12 Chief Justice Marshall upheld the jurisdiction of the Supreme Court to decide who held title to Indian land. In the second of the trilogy, Cherokee Nation v Georgia,13 the Court found the Cherokee to be a 'domestic dependent nation'. The concept of domestic dependent nations was developed in subsequent cases, including the third of the Marshall trilogy, Worcester v Georgia.14
Unlike Justices Dowling and Willis in Ballard and Bonjon, in 1836 in R v Murrell Justice Burton rejected the defendant's argument that 'New South Wales was neither conquered, ceded, nor a British settlement by occupation', and that Aboriginal people were not 'bound by laws which gave them no protection'.15 Justice Burton held that 'the aboriginal natives of this Colony are amenable to the laws of the Colony for offences committed within it against the persons of each other and against the peace of our Lord—the King'.16 Justice Burton also appears to have been aware of the American authorities in relation to domestic dependent nations, but declined to apply them to the 'Aboriginal natives of New Holland':
Although it be granted that the Aboriginal natives of New Holland are entitled to be regarded by civilised nations as a free and independent people, and are entitled to the possession of those rights which are so valuable to them, yet the various tribes have not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilisation and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.
The other members of the Court, Chief Justice Forbes and Justice Bowling, concurred with the views of Justice Burton.17 In 1889, the Privy Council determined in Cooper v Stuart that in 1788 Australia had consisted of 'a tract of territory practically unoccupied without settled inhabitants'.18
In The Treaty Project, academics Sean Brennan, Brenda Gunn and George Williams referred to the voices in Aboriginal and Torres Strait Islander communities who contend that they 'were sovereign before the colonisation of Australia and that their sovereignty was never extinguished (and thus remains intact today)'.19 Brennan, Gunn and Williams note a sense of grievance, felt by many indigenous people (and shared by many other Australians), that 'legitimate political and legal authority—or “sovereignty”—was never properly secured over the Australian landmass'.20
In more recent times, visual expressions of sovereignty can be traced to the establishment of the Aboriginal Tent Embassy outside Old Parliament House on Australia Day, 26 January 1972.21 The founders of the tent embassy likened themselves to 'aliens in our own lands'. In August 1979, the tent embassy called for a bill of Aboriginal rights and recognition of Aboriginal sovereignty. In its 40-year history, the Aboriginal Tent Embassy has maintained its calls for recognition of Aboriginal sovereignty, including in its submission to the Panel.22 According to the tent embassy submission: 'Recognition of Aboriginal Peoples in the constitution must not usurp our continuing Sovereignty. The only resolution of the constitutional issue is by way of negotiated Sovereign Treaties under the supervision of the international community.'23
 
In proceedings instituted in the High Court in 1978, Wiradjuri man Paul Coe and others applied for leave to amend a statement of claim to allege, among other things, that the proclamations by Cook, Phillip and others and the settlement that followed 'wrongfully treated the continent now known as Australia as terra nullius whereas it was occupied by the sovereign aboriginal nation', and that 'the aboriginal people ... were entitled not to be dispossessed ... without bilateral treaty, lawful compensation and/or lawful international intervention'. In refusing the application, Justice Gibbs held that '[t]he contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain'.24 Justice Jacobs concluded that 'the Crown's proclamation of sovereignty and sovereign possession ... are not cognizable in a court exercising jurisdiction under that sovereignty which is sought to be challenged'.25
 
In a submission to the 1983 Senate Standing Committee on Constitutional and Legal Affairs inquiry on the feasibility of a compact or 'Makarrata' between the Commonwealth and Aboriginal people, the Central Australian Aboriginal organisations contended:
We have never conceded defeat and will continue to resist this ongoing attempt to subjugate us. The Aboriginal people have never surrendered to the European invasion and assert that sovereignty over all of Australia lies with them. The settler state has been set up on Aboriginal land. We demand that the colonial settlers who have seized the land recognise this sovereignty and on that basis negotiate their rights to be there.26
In 1988, coinciding with the bicentennial of Phillip's arrival with the First Fleet in Sydney Harbour in 1788, and the founding of the colony of New South Wales, the Aboriginal Sovereign Treaty '88 Campaign renewed calls for recognition of the sovereign rights of Aboriginal nations and peoples, and their ownership of Australia, and for the Commonwealth Government to treat with Aboriginal sovereign nations through the mechanisms of international law.27
In June 1988, the chairpersons of the Northern and Central Land Councils, Galarrwuy Yunupingu and Wenten Rubuntja, presented Prime Minister Bob Hawke with a statement of national Aboriginal political objectives at the Barunga cultural and sporting festival run by the Bamyili Community Council. The statement, known as the 'Barunga Statement', drew inspiration from the Yirrkala Bark Petition sent to the House of Representatives 20 years earlier by a previous generation of Yolngu leaders in protest against mining on the Gove Peninsula (see 8.1).
On 16 July 1990, the Aboriginal Provisional Government was formed, with the aim of establishing an Aboriginal state 'with all of the essential control being vested back into Aboriginal communities'. The model is for an Aboriginal nation 'exercising total jurisdiction over its communities to the exclusion of all others'. The work of the Aboriginal Provisional Government has continued—for example with the call by Michael Mansell in 2002 for a treaty to 'recognise the status of Aboriginal people as sovereign' and to 'describe the limits of the exercise of that sovereignty'.28
As discussed in Chapter 1, in Mabo (No 2) the High Court held that the fiction of terra nullius 'by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country'.29 Referring to the dispossession of the Aboriginal peoples of most of their traditional lands, Justices Deane and Gaudron commented that '[t]he acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of the nation'. While rejecting the fiction of terra nullius and recognising native title to land according to the laws and customs of people with a connection to particular land, the High Court held that the Crown's acquisition of sovereignty 'over the several parts of Australia cannot be challenged in a municipal court'.30
In relation to the methods for acquiring sovereignty of territories already inhabited, Justice Brennan commented as follows:
International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant ... The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. ... To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of 'backward peoples' and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest.31
Referring to the decision in Mabo (No 2), Professor Mick Dodson has commented that '[t]he sovereign pillars of the Australian state are arguably, at the very least, a little legally shaky'.32 Given that the High Court has rejected the fiction of terra nullius, the question arises: What was the basis in international law for the acquisition of sovereignty by the Crown over the several parts of Australia? Professor Marcia Langton has queried:
So how can it be explained that native title to land that pre-existed sovereignty and survived it, as the High Court of Australia explained, has been recognised, and yet the full body of ancestral Indigenous Australian laws and jurisdiction are deemed by a narrow, historically distorted notion of sovereignty to be incapable of recognition.33
Since Mabo (No 2), the High Court has not entertained challenges to the Crown's proclamation of sovereignty and sovereign possession. In Coe v Commonwealth Chief Justice Mason held that Mabo (No 2) was 'entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia'. The decision was:
equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are 'a domestic dependent nation' entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognized by the laws of the Commonwealth, the State of New South Wales and the common law.34
In Walker v New South Wales, Chief Justice Mason rejected the suggestion that Australian criminal law accommodates an alternative body of law operating alongside it.35 There was nothing in Mabo (No 2) 'to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people'.36
In 2002, in Members of the Yorta Yorta Aboriginal Community v Victoria, Chief Justice Gleeson, Justice Gummow and Justice Hayne held that 'what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty'.37 Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. According to the majority: 'Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.'

9.2 Views on sovereignty

In a survey conducted by the National Congress of Australia's First Peoples in July 2011, the three most important policy areas for members were health, education and sovereignty; 88 per cent of Congress members identified constitutional recognition and sovereignty as a top priority. Unsurprisingly, it was apparent from consultations and submissions that sovereignty means different things to different Aboriginal and Torres Strait Islander communities.
The Galiwin'ku Constitution Consultation Meeting provided a collection of documents as 'a representation of our desires in terms of constitution change which might support increased rights for Yolngu people and indigenous Australians'.38 The documents included a paper by the Reverend Dr Djiniyini Gondarra, Senior Elder of the Dhurili Clan Nation and Chairman of the Arnhem Land Progress Aboriginal Corporation, renewing calls for recognition of the traditional law of the Yolngu people of north-east Arnhem Land:
There is no recognition of the fact that we have assented to our law for many thousands of years and we still consider ourselves a sovereign people who belong to different Ringitj Nation States.
It is the Ringitj Nation States that hold the government for our yirralka estates and our people and they should be approached in the right legal way. Then we should hold our own legal meetings according to the correct Madayin processes and then give our legal response back to the government in our own time. ...
We believe we have never been conquered and we are not subject to the Australian or British law but still maintain our sovereignty. We still have our language and practice our Madayin Law and as one of the first peoples we assent to the Madayin law not Australian law. Still we want to find a way forward. So, if the Law we have always assented to is not recognised then there can never be a real rule of Law only lawlessness and true justice can never exist for our people and the communities we live in. So we will continue to fill up NT hospitals and jails.39
The documents also included a letter from the Makharr Dhuni Women's Forum to the UN High Commissioner for Human Rights, which stated:
We are concerned that our Federal and Territory governments are not acknowledging that we are still subject to our own djalkirri rom [foundation law] created by the wangarr [god] since time immemorial. For this reason we wish to reassure you that there are many laws, practices, and protocols that we must adhere to as strong Yolngu women according to the djalkirri rom.40
The statement of Expert Panel member Timmy Djawa Burarrwanga in relation to Yolngu law and constitutional perspectives is reproduced elsewhere in this report.41
Among Aboriginal and Torres Strait Islander people, there is a diversity of understanding in relation to the meaning of sovereignty, and its significance. Tasmanian Aboriginal lawyer Michael Mansell, one of the co-founders in August 1990 of the Aboriginal Provisional Government, has been critical of current proposals for constitutional recognition being considered by the Panel. Mansell has observed that the Panel, in its discussion paper, makes no mention of sovereignty or self-determination, and 'is pushing political assimilation'.42 Aboriginal lawyer Professor Larissa Behrendt has argued that for many people, recognition of sovereignty is a starting point for recognition of rights and inclusion in social processes.43 Behrendt has explained that sovereignty can be used 'as a catch phrase for Indigenous peoples expressing their vision for the future'.44 Noel Pearson has argued that apart from being unachievable, 'full-blown sovereignty' may not be necessary, and that 'local indigenous sovereignty' could exist internally within a nation–state 'provided that the fullest rights of self-determination are accorded'.45
In a submission to the Panel, Tom Trevorrow, the chairperson of the Ngarrindjeri Regional Authority in South Australia, agreed that sovereignty should be among the principles driving discussion of constitutional change, but said that for him the term sovereignty had a broader meaning: 'Ngarrindjeri will continue to assert to Government its own sovereignty over its own people, place and knowledge.'46
Another submission, from the Sisters of St Joseph South Australia Reconciliation Circle, argued:
Changes to the Constitution must include a statement which reflects proper recognition of Australia's history and includes recognition of the colonisation of the First Peoples and their subsequent dispossession. We believe it is vitally important that Aboriginal and Torres Strait Islander peoples are recognised as the prior owners of Australia who had sovereign rights which have never been ceded by Aboriginal peoples.47
Submissions in relation to sovereignty were also made by Kaiyu Bayles, Shane Derschow and Brett Gulley.48 A participant at the Grafton consultation on 29 August 2011 said: 'Aboriginal people never ceded sovereignty, but should be included in the Constitution.'
Hunter Valley Quaker Meeting likewise stated:
There is also a tension arising from the taking of sovereignty of Australia by Great Britain, and the sovereignty of First Peoples, which cannot have been extinguished on the principle of Terra Nullius. We recognize that many Aboriginal organizations seek recognition of the invasion of their lands by the British in the Constitution. We encourage a creative approach to the issue of sovereignty in the light of contemporary concerns about whether the model of the unitary state (including federal states) is the only way to deliver good government.49
These views were not shared by all who made submissions to the Panel. For example, William Cole stated:
I would refer the Panel to the argument made by former High Court Chief Justice Sir Harry Gibbs, where he suggested that accepting elements of other legal systems into the current one would make the current arrangement unworkable. Personally I think that there should be one legal system applicable to all Australians.50

9.3 Conclusions

The four principles agreed to by the Panel for its assessment of proposals for constitutional recognition include that a proposal 'must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples'. For this reason, the Panel has recorded the voices of those who have raised questions about the continuing sovereign status of Aboriginal and Torres Strait Islander peoples.
As the National Indigenous Lawyers Corporation of Australia noted in its submission, recognition or attribution of sovereign status is unlikely to be given any serious consideration in this round of reform. It counselled, however, that it would 'be remiss of the Panel not to state clearly in its report that recognition of our sovereign status is an aspiration of Aboriginal people and Torres Strait Islanders and an issue that will need to be confronted at some stage in the not too distant future'.51
Advice received by the Panel is that the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples. It derives from the majority view of the High Court in Mabo v Queensland (No 2)52 that the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals. Advice to the Panel is that recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.
Any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel's recommendations. Such a proposal would not therefore satisfy at least two of the Panel's principles for assessment of proposals, namely 'contribute to a more unified and reconciled nation', and 'be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'.
While questions relating to sovereignty are likely to continue to be the subject of debate in the community, including among Aboriginal and Torres Strait Islander Australians, the Panel does not consider that these questions can be resolved or advanced at this time by inclusion in a constitutional referendum proposal.
Qualitative research undertaken for the Panel in August 2011 found that 'sovereignty' and 'self-determination' were poorly understood concepts. Given the apparent diversity of current understanding in relation to the meaning of sovereignty and its significance, any such proposal is also unlikely to satisfy the fourth of the Panel's principles, namely the requirement that it be 'technically and legally sound'.

Notes

  1. See discussion in Patrick Dodson, 1999 Lingiari Memorial Lecture, 'Until the Chains Are Broken' (2000) 5(2) Australian Indigenous Law Reporter 73.
  2. Heather McRae, Garth Nettheim and Laura Beacroft (eds), Indigenous Legal Issues: Commentary and Materials (Lawbook, 4th ed, 2009), at [3.10].
  3. Ibid.
  4. 'Secret Instructions for Lieutenant James Cook Appointed to Command His Majesty's Bark the Endeavour', 30 July 1768, National Library of Australia.
  5. See generally, McRae, Nettheim and Beacroft, op cit, at [1.150].
  6. 'Draught Instructions for Governor Phillip', 25 April 1787, British Public Records Office.
  7. McRae, Nettheim and Beacroft, op cit, at 66.
  8. Larissa Behrendt, Chris Cunneen and Terri Libesman, Indigenous Legal Relations in Australia (Oxford University Press, 2009), at 13.
  9. McRae, Nettheim and Beacroft, op cit, at 51.
  10. Behrendt, Cunneen and Libesman, op cit, at 15.
  11. Ibid, at 16.
  12. 21 US (8 Wheat) 543 (1823).
  13. 30 US (5 Pet) 1 (1831).
  14. 31 US 515 (1832).
  15. McRae, Nettheim and Beacroft, op cit, at 150.
  16. Ibid.
  17. See John Hookey, 'Settlement and Sovereignty' in Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and the Law (Allen & Unwin, 1984), at 2–8.
  18. (1889) 14 AC 286.
  19. Sean Brennan, Brenda Gunn and George Williams, 'Treaty—What's Sovereignty Got to Do with It?' (Issues Paper No 2, Gilbert & Tobin Centre of Public Law, The Treaty Project, 2004), at 2.
  20. Ibid, at 1.
  21. Coral Dow, 'Aboriginal Tent Embassy: Icon or Eyesore?' (2000) Social Policy Group 1.
  22. Aboriginal Tent Embassy, submission no 3591.
  23. Ibid.
  24. Coe v Commonwealth (1979) 24 ALR 118, at 129.
  25. Ibid, at 132.
  26. Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Two Hundred Years Later: The Feasibility of a Compact or 'Makarrata' between the Commonwealth and Aboriginal People (Australian Government Publishing Service, 1983), at 10.
  27. Kevin Gilbert, 'Sovereign Treaty to Enshrine Our Rights' in Aboriginal Sovereignty: Justice, the Law and Land (Treaty '88, 1988); also Treaty '88 Campaign, 'Aboriginal Sovereignty—Never Ceded' (1988)
    91 Australian Historical Studies 1.
  28. Michael Mansell, Aboriginal Provisional Government: Finding the Foundation for a Treaty with the Indigenous Peoples of Australia (2002), at http://esvc000200.wic061u.server-web.com/issues/apg05.html#TSI.
  29. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 per Brennan J, at 40–42 (Mason CJ and McHugh J agreeing).
  30. (1992) 175 CLR 1 per Brennan J, at 69 (Mason CJ and McHugh J agreeing); see also, at 15, 31–32, 78–79, 122, 179–180.
  31. Ibid, at 32–33.
  32. Michael Dodson, 'Sovereignty' (2002) 4 Balayi: Culture, Law and Colonisation 13, at 18.
  33. M Langton, 'Ancient Jurisdictions, Aboriginal Polities and Sovereignty' (Speech delivered at the Indigenous Governance Conference, Canberra, 3–5 April 2002), at 1. See also 'Aboriginal people have continued to argue that not only customary property rights in land but also ancient jurisdictions survive, on the grounds that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal governance under the full body of Aboriginal customary laws, by the same logic as that that led to the recognition of native title at common law, must, even if in some qualified way, have survived the annexation of Australia by the Crown': Marcia Langton and Lisa Palmer, 'Modern Agreement Making and Indigenous People in Australia: Issues and Trends' (2003) 8(1) Australian Indigenous Law Reporter 1. See also discussion in Dodson, op cit.
  34. Coe v Commonwealth (No 2) (1993) 118 ALR 193.
  35. (1994) 182 CLR 45.
  36. Ibid, at 47–50.
  37. (2002) 214 CLR 422, at 443–444 [44].
  38. Galiwin'ku Constitution Consultation Meeting, submission no 3526.
  39. Dr Djiniyini Gondarra OAM and Richard Trudgen, 'The Assent Law of the First People: Principles of an Effective Legal System in Aboriginal Communities', 22 February 2011, in Galiwin'ku Constitution Consultation Meeting, submission no 3526.
  40. Makharr Dhuni Women's Forum letter, in Galiwin'ku Constitution Consultation Meeting, submission no 3526.
  41. See also A Corn and N Gumbula, 'Now Balanda Say We Lost Our Law in 1788: Challenges to the Recognition of Yolngu Law in Contemporary Australia' (unpublished manuscript, University of Melbourne, 2011).
  42. Michael Mansell, 'A Doomed Exercise: Why the Proposed Recognition of Indigenous Peoples in the Australian Constitution Will Fail' (Paper presented at 6th National Indigenous Legal Conference, Sydney,
    12 August 2011), at 6.
  43. Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia's Future (Federation Press, 2003), at 99.
  44. Ibid, at 95.
  45. Noel Pearson, 'Reconciliation: To Be or Not to Be—Nationhood, Self-Determination or Self-Government' (1993) 3(61) Aboriginal Law Bulletin 17.
  46. Ngarrindjeri People, submission no 3576.
  47. Sisters of St Joseph South Australia Reconciliation Circle, submission no 3247.
  48. Submissions no 2887, no 990 and no 3178 respectively.
  49. Hunter Valley Quaker Meeting, submission no 3535.
  50. William Cole, submission no 97, at 1.
  51. National Indigenous Lawyers Corporation of Australia, submission no 3561.
  52. (1992) 175 CLR 1, and see per Brennan J, at 31–43, 57, 69.
 

Wednesday 12 February 2014

It’s time for UNICEF and ABC's Four Corners Programme to expose the scandalous treatment of Aboriginal youth in detention in WA and in the NT

Last Monday’s (10 Feb 2014) ABC Four Corners Programme covered the rising international and domestic (Israeli) concern about the military system of youth justice and detention in the Palestinian Territories. 
As a parent and an advocate for reform of the youth detention system in Western Australia and the Northern Territory I was disturbed by the images of what can be best described as traumatic and sometimes violent child abuse. 
The UNICEF report into Children in Israeli Military Detention is timely. Some have criticised the programme for its geo-political spin, but few could dispute that children need protection. 
The UNICEF report catalogues a series of reasonable recommendations to protect the rights of children including: 
• A prohibition on solitary confinement
• A limitation on the use of restraints and strip searches
• More diversionary programmes and alternatives to court and imprisonment
• Medical Examinations before questioning, transfer and detention
• Less traumatic arrest procedures
• A ban on the use of confessions which were given without a lawyer or judge present
• Locating the place of detention near the family of the child and providing access to relatives
• Implementation of international norms and Covenants on the protection of children.
What shocked me about the UNICEF report was that virtually all of the recommendations could and should be applied to children in the Western Australian and NT youth detention systems. Many of the recommendations contained in the UNICEF report were made by the Royal Commission into Aboriginal Deaths in Custody, over 20 years ago, and more recently by the Commissioner for Children in WA but they have never been implemented by the Western Australian and NT Governments.
Much was made in the report about exposing Palestinian youth to the elements but where is the concern for the Aboriginal children who have been kept in solitary confinement in 40 degree heat for 23 hours a day in youth detention in Western Australia. 
Children at the Banksia Hill Detention Centre in Perth have been locked in their cells virtually all day, they are being denied basic education, health and rehabilitation programs and they have very little recreation time.
Calls for Israel to comply with international norms on the treatment of children should be matched here in Australia. Our politicians, bureaucrats, prison authorities and courts can simply ignore international norms on the treatment of children with impunity and without UNICEF scrutiny.
The Four Corners programme highlighted the disgraceful treatment of Palestinian youth in the Israeli Military youth justice system but they also reported the news that the Israeli Government and its Military has accepted that reform is required and will take steps to improve military youth justice and detention. 
That's more than can be said for the Governments of Western Australia and the Northern Territory who refuse to address the problem. Things are so bad that the Prime Minister’s Indigenous Advisory Chairperson, Warren Mundine called for a national summit on Aboriginal justice issues in order to reverse Aboriginal juvenile detention numbers and the soaring incarceration levels. In Western Australia, Aboriginal youth comprise 70 per cent of the juvenile detention population and in the Northern Territory the figure is as high as 98 per cent.
When will UNICEF and Four Corners to investigate the treatment of Aboriginal children in youth detention in Western Australia, until then one might take a jaundiced view about Four Corners’ internationalist position on this vital issue. 
Four Corners, quite legitimately, raised the issue of the conditions of youth detention in the Palestinian Territories but the Israeli military has accepted at least some of UNICEF’s recommendations. Now it’s time for UNICEF and Four Corners to expose the scandalous treatment of Aboriginal youth by the Governments of WA and the NT.
George Newhouse is the head of Shine Lawyers social justice department and he advocated for Aboriginal youth in detention in WA (Wilson v Francis [2013] WASC 157).