Indigenous voice to parliament

[TwinTurbo]

It could’ve been worse. We could be speaking French

Or Dutch.

Always a Bulldog

 

[steeliz]

I think (and hope) this idea is dead in the water. If Albanese wants input from Indigenous people,
why doesn't he just form a committee and not fool around with the Constitution.
The Government in Australia consists of Australian people. I believe Indigenous people are also Australian and
are part of the Constitution. So why is this change necessary?

This is the problem.

Indigenous people aren't part of the constitution.

The Doctrine of Terra Nullis is still enshrined in the constitution.

 

[Philistine]

Indigenous people aren't part of the constitution.

No racial subgroup gets a specific mention in the constitution. Why should they? We are all Australians and the constitution applies equally to all of us.

Prior to the 1967 referendum, aboriginals were regarded as a separate and inferior group. In the referendum, Australians voted overwhelmingly (90.77% to 9.23%) to give aboriginals the same rights and responsibilities as all other Australians. Why is it still a matter for debate 56 years later?

 

[steeliz]

No racial subgroup gets a specific mention in the constitution. Why should they? We are all Australians and the constitution applies equally to all of us.

Prior to the 1967 referendum, aboriginals were regarded as a separate and inferior group. In the referendum, Australians voted overwhelmingly (90.77% to 9.23%) to give aboriginals the same rights and responsibilities as all other Australians. Why is it still a matter for debate 56 years later?

The Doctrine of Terra Nullius exists in the constitution.

" land that is legally deemed to be unoccupied or uninhabited."

Justify it any way you like, but until that is removed from the Australian Constitution your argument just doesn't hold water.

 

[Philistine]

The Doctrine of Terra Nullius exists in the constitution.

" land that is legally deemed to be unoccupied or uninhabited."

Justify it any way you like, but until that is removed from the Australian Constitution your argument just doesn't hold water.

My eyes must be going. I have spent the past couple of hours reading and rereading the constitution and I cannot find any mention of Terra Nulius. Perhaps my copy of the constitution is a pirate knock-off.

 

[Hacky McAxe]

The Doctrine of Terra Nullius exists in the constitution.

" land that is legally deemed to be unoccupied or uninhabited."

Justify it any way you like, but until that is removed from the Australian Constitution your argument just doesn't hold water.

The Constitution doesn't reference Terra Nullius. But the findings of Mabo were that the Constitution and British occupation were based on Terra Nullius even if they weren't specifically recorded.

This is with the exception of the Melbourne area treaty termination, which was when British colonists made a treaty with the Aboriginal tribes in the Melbourne area to avoid bloodshed, and settled that they could own a large part of the land. But Governor Burke released the Terra Nullius proclamation that declared that all of Australia, including Melbourne area, was unoccupied/unihabited and therefore rightful that the British take control of all the lands. It also made the treaty with the Aboriginals of Melbourne area Null and Void.

 

[steeliz]

My eyes must be going. I have spent the past couple of hours reading and rereading the constitution and I cannot find any mention of Terra Nulius. Perhaps my copy of the constitution is a pirate knock-off.

link: Chapter 3 – Parliament of Australia (aph.gov.au)

The doctrine of terra nullius
3.18
Terra nullius is a Latin phrase meaning 'no-one's land'. The doctrine of terra nullius 'existed in the law of nations throughout the development of Western democracy', and was derived from Roman law. It is the concept that 'ownership by seizure of a thing no one owns is legitimate' applied to lands and waters that were 'discovered', or 'conquered', during the period of empire building between the 15th century and the middle of the 18th century. Captain Cook had been instructed by the British Admiralty to take possession of undiscovered land in the South Pacific if he found it to be uninhabited. Despite seeing many Aboriginal people when he arrived on the continent that would later be called Australia, Captain Cook did not see what he understood to be agriculture or signs of permanent habitation, and he claimed the eastern half of the continent for the for the British Crown.20
3.19
The term terra nullius was used in an 1835 proclamation by Governor Bourke of NSW, which was intended to reinforce the notion that no one owned the land before British possession and settlement. Bourke's understanding of the term became accepted doctrine in the law of the colonies, and remained a cornerstone of Australian law until its repudiation by the High Court Mabo judgment in 1992.21
3.20
According to Justice Jayne Margaret Jagot:
By the doctrine of terra nullius, the common law of Australia could not and did not recognise the laws and customs of Aboriginal and Torres Strait Islander peoples. It should be apparent from this that, in such a context and until 1992 and the Mabo decision, to acknowledge that land is the land of Aboriginal people would have conflicted with legal doctrine. That legal doctrine, in common it must be said with a number of others, did great harm to our society, and its consequences continue today…22
3.21
The doctrine of terra nullius was challenged and eventually overturned as a result of the Mabo case. Meriam man from the Island of Mer in the Torres Strait, Eddie Koiki Mabo, discovered that according to Australian law, he and his family did not own their land on Mer. In 1982, Mr Mabo, the Reverend David Passi, Celuia Mapo Salee, Sam Passi and James Rice brought an action against the State of Queensland and the Commonwealth of Australia in the High Court.23 The Mabo case challenged the legal doctrines that:

Aboriginal and Torres Strait Islander peoples had no concept of land ownership prior to the arrival of British colonisers in 1788 (the doctrine of terra nullius); and

sovereignty delivered complete ownership of all land in the new colony to the Crown, abolishing any existing rights that may have existed previously.
3.22
Mabo v Queensland (No. 1)24 was heard in 1986 and 1988. After a number of intervening steps at state and national levels, over many years, the High Court's decision in Mabo v Queensland (No. 1) led to the subsequent High Court case, Mabo v Queensland (No. 2),25 which would determine the matter of the plaintiffs' land rights.
3.23
On 3 June 1992, the High Court upheld the plaintiffs' claim and ruled that the lands of the Australian continent were not terra nullius when European settlement occurred. The High Court ruled that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'.26
3.24
The High Court decision in Mabo v Queensland (No. 2) established the doctrine of native title in Australian law, recognised that Indigenous peoples have lived in Australia for thousands of years and enjoy rights to their land according to their own laws and customs, and overturned the doctrine of terra nullius. In 1993, the Native Title Act 1993 (Cth) was passed by the Australian Parliament, paving the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights to land and compensation.27
3.25
The High Court's decision also held, however, 'that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates'.28
3.26
Some inquiry participants argued there are significant problems with existing native title claims processes and legislation. For instance, Indigenous health organisations peak body, the National Health Leadership Forum submitted:
Native Title was meant to recognise rights and interests over land or waters where Aboriginal and Torres Strait Islander peoples practiced and continue to practice, traditional laws and customs prior to colonisation. However, the process is tedious and time consuming which has been compounded by a series of amendments to the Native Title Act (1998, 2007 and 2009) which have reduced the ability to make claims, where previously it was possible, in order to favour other forms of land use such as mining. In addition, the Native Title has also created divisions within communities through the reorganising of Aboriginal communities which has been imposed on by the state through the process of Native Title countering its original intent.29

 

[Hacky McAxe]

link: Chapter 3 – Parliament of Australia (aph.gov.au)

The doctrine of terra nullius
3.18
Terra nullius is a Latin phrase meaning 'no-one's land'. The doctrine of terra nullius 'existed in the law of nations throughout the development of Western democracy', and was derived from Roman law. It is the concept that 'ownership by seizure of a thing no one owns is legitimate' applied to lands and waters that were 'discovered', or 'conquered', during the period of empire building between the 15th century and the middle of the 18th century. Captain Cook had been instructed by the British Admiralty to take possession of undiscovered land in the South Pacific if he found it to be uninhabited. Despite seeing many Aboriginal people when he arrived on the continent that would later be called Australia, Captain Cook did not see what he understood to be agriculture or signs of permanent habitation, and he claimed the eastern half of the continent for the for the British Crown.20
3.19
The term terra nullius was used in an 1835 proclamation by Governor Bourke of NSW, which was intended to reinforce the notion that no one owned the land before British possession and settlement. Bourke's understanding of the term became accepted doctrine in the law of the colonies, and remained a cornerstone of Australian law until its repudiation by the High Court Mabo judgment in 1992.21
3.20
According to Justice Jayne Margaret Jagot:
By the doctrine of terra nullius, the common law of Australia could not and did not recognise the laws and customs of Aboriginal and Torres Strait Islander peoples. It should be apparent from this that, in such a context and until 1992 and the Mabo decision, to acknowledge that land is the land of Aboriginal people would have conflicted with legal doctrine. That legal doctrine, in common it must be said with a number of others, did great harm to our society, and its consequences continue today…22
3.21
The doctrine of terra nullius was challenged and eventually overturned as a result of the Mabo case. Meriam man from the Island of Mer in the Torres Strait, Eddie Koiki Mabo, discovered that according to Australian law, he and his family did not own their land on Mer. In 1982, Mr Mabo, the Reverend David Passi, Celuia Mapo Salee, Sam Passi and James Rice brought an action against the State of Queensland and the Commonwealth of Australia in the High Court.23 The Mabo case challenged the legal doctrines that:

Aboriginal and Torres Strait Islander peoples had no concept of land ownership prior to the arrival of British colonisers in 1788 (the doctrine of terra nullius); and

sovereignty delivered complete ownership of all land in the new colony to the Crown, abolishing any existing rights that may have existed previously.
3.22
Mabo v Queensland (No. 1)24 was heard in 1986 and 1988. After a number of intervening steps at state and national levels, over many years, the High Court's decision in Mabo v Queensland (No. 1) led to the subsequent High Court case, Mabo v Queensland (No. 2),25 which would determine the matter of the plaintiffs' land rights.
3.23
On 3 June 1992, the High Court upheld the plaintiffs' claim and ruled that the lands of the Australian continent were not terra nullius when European settlement occurred. The High Court ruled that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'.26
3.24
The High Court decision in Mabo v Queensland (No. 2) established the doctrine of native title in Australian law, recognised that Indigenous peoples have lived in Australia for thousands of years and enjoy rights to their land according to their own laws and customs, and overturned the doctrine of terra nullius. In 1993, the Native Title Act 1993 (Cth) was passed by the Australian Parliament, paving the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights to land and compensation.27
3.25
The High Court's decision also held, however, 'that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates'.28
3.26
Some inquiry participants argued there are significant problems with existing native title claims processes and legislation. For instance, Indigenous health organisations peak body, the National Health Leadership Forum submitted:
Native Title was meant to recognise rights and interests over land or waters where Aboriginal and Torres Strait Islander peoples practiced and continue to practice, traditional laws and customs prior to colonisation. However, the process is tedious and time consuming which has been compounded by a series of amendments to the Native Title Act (1998, 2007 and 2009) which have reduced the ability to make claims, where previously it was possible, in order to favour other forms of land use such as mining. In addition, the Native Title has also created divisions within communities through the reorganising of Aboriginal communities which has been imposed on by the state through the process of Native Title countering its original intent.29

That's not the Constitution though. That's chapter 3 of an inquiry report into the nationhood, national identity and democracy of Australia, held in 2019

 

[steeliz]

That's not the Constitution though. That's chapter 3 of an inquiry report into the nationhood, national identity and democracy of Australia, held in 2019

That part of the enquiry was rehashing accepted history.

It was a cornerstone of Australian law, May not have been written into the constitution but a part of common law, just like squatter's rights and enforced by courts until Mabo.

200 years of Australian Courts accepting Terra Nullius as law:

Rights - High Court overturns 200 years of common law - Australian Constitution Centre

 

[Hacky McAxe]

That part of the enquiry was rehashing accepted history.

It was a cornerstone of Australian law, May not have been written into the constitution but a part of common law, just like squatter's rights and enforced by courts until Mabo.

200 years of Australian Courts accepting Terra Nullius as law:

Rights - High Court overturns 200 years of common law - Australian Constitution Centre

Yep. That's what I said earlier. Mabo considered Terra Nullius to be a foundation of the Constitution and Occupation by the British. And rightly so, because it couldn't be established without precedence of Terra Nullius. But Terra Nullius was never specified in the constitution and doesn't exist in the constitution today.

 

[steeliz]

Yep. That's what I said earlier. Mabo considered Terra Nullius to be a foundation of the Constitution and Occupation by the British. And rightly so, because it couldn't be established without precedence of Terra Nullius. But Terra Nullius was never specified in the constitution and doesn't exist in the constitution today.

Technicality.

It was still law.

 

[TwinTurbo]

The Doctrine of Terra Nullius exists in the constitution.

" land that is legally deemed to be unoccupied or uninhabited."

Justify it any way you like, but until that is removed from the Australian Constitution your argument just doesn't hold water.

We can’t remove something from the Constitution that isn’t there in the first place.


Always a Bulldog

 

[Natboy]

What difference will more Albo style symbolism and changing a few words in a document they won’t ever read make to indigenous people on the street?

 

[speedy2460]

This is the problem.

Indigenous people aren't part of the constitution.

The Doctrine of Terra Nullis is still enshrined in the constitution.

So are you saying that Indigenous people in Australia are not Australians?

 

[steeliz]

So are you saying that Indigenous people in Australia are not Australians?

That is what you got out of that?

 

[KambahOne]

I'm voting yes, but my indigenous wife and son are voting no. Go figure.

And I'm voting yes even though I've seen first hand what indigenous people do to indigenous people when in positions of self governance and power. ATSIC was rife with cronyism, nepotism, embezzlement and massive corruption at every level. ORIC continually uncovers corruption within indigenous corporations where millions have gone missing. That's why I'm all for the forming of an advisory body only. Let that work for a while and then give it a little power, else it could kill itself ala ATSIC and nothing will ever be done.

 

[Natboy]

I'm voting yes, but my indigenous wife and son are voting no. Go figure.

And I'm voting yes even though I've seen first hand what indigenous people do to indigenous people when in positions of self governance and power. ATSIC was rife with cronyism, nepotism, embezzlement and massive corruption at every level. ORIC continually uncovers corruption within indigenous corporations where millions have gone missing. That's why I'm all for the forming of an advisory body only. Let that work for a while and then give it a little power, else it could kill itself ala ATSIC and nothing will ever be done.

Even though it’s meant to be an advisory body Albanese has indicated they may have parliamentary power which is concerning. Even if they don’t have actual power in parliament I can’t see Albanese saying no to any recommendations as he’s a yes man in that sense

 

[The DoggFather]

Do not talk over me or I will destroy you with a lethal combination of exquisitely executed roundhouse kicks delivered by my perfectly sculptured and toned calf muscles you skippy skinny poof .

You're suffering from "poof syndrome" lol

 

[DinkumDog]

You're suffering from "poof syndrome" lol

My fave part is probably the masseuse:

‘You’re probably used to working on skippy skinny poofy guys but it’s time to meet a real man. Do you believe in God? Because you will when I take off my shirt. Women who work on my body fall into a trance like state and do not come out of it for weeks. Do you know what doctors call this phenomenon? Love’ .

 

[Natboy]

It sounds like Albo is going to backflip and re-instate the “racist” alcohol ban in Alice he allowed to lapse. Cherry-Evans would be proud of the backflip