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A post-colonial Australian republic: let's embrace each other! - Oqürum
A post-colonial Australian republic: let’s embrace each other!

A post-colonial Australian republic: let’s embrace each other!

I, for one, am glad to see some renewed debate about if/when/how Australia will eventually become a republic.

I’m really keen that when we do, we do it in a genuinely post-colonial way. We are not now a post-colonial society.

In December I shared my submission to the parliamentary inquiry into proposed amendment of section 44 of the Australian Constitution, the section which caused such angst with dual citizens. I argued that this could only make sense in the context of broader reform including becoming a republic.

Lately I’ve seen some opinion pieces (unfortunately a few behind paywalls which I can’t afford) which have been highlighting the need for recognition as part of a republic process. This is in response to the rejection of the Uluru Statement by the former ardent (now tepid) minimalist republican PM Malcolm Turnbull.

Naturally I agree with these sentiments. I ran in the election for the Constitutional Convention in 1998 arguing for republican constitutional reform that included genuine recognition (the best I can say of that campaign is that 1) unlike my two tilts at local government, my mum was happy with it and 2) I didn’t come last).

My dream for us, though, is for more than a passive acknowledgement of one another. It is for an active embrace.

A couple of things I learned a while ago

The photo above is of the back of a t-shirt I bought when I attended the Garma Festival on Yolgnu country back in 2001. I was working for the Aboriginal Legal Service of Western Australia at the time, and attended with our then President, Ron ‘Doc’ Reynolds.

The academic program for that year’s festival was on criminal law and justice. There were national Indigenous leaders from around Australia, eminent jurists from around the country, leading academics and a very freshly elected NT First Minister, Helen Clark, flew in to give one of her first public speeches.

In the plenary sessions, though, I was struck by the contribution of a particular Yolgnu elder.

He stood in front of legal and political luminaries and junior servants of the struggle like me and let us know that some fundamental British constitutional principles, imported into Australia, were comparable to principles in Yolgnu government.

So, for example, the Yolgnu word used to name the academic program, Njärra’, he informed us, referred (in one usage) to a law-making meeting akin to a parliament.

He argued that at another time elders would meet to apply the law, in the manner of a court.

His point was that these two functions were distinct in Yolgnu government: there was a separation of powers.

Around a fire one night I had a conversation with a young elder, and we spoke about the dynamism of Yolgnu law. In particular, he highlighted that once the Yolgnu had practiced capital punishment for severe crimes, but that they had been persuaded by arguments that no government has the right to take one of its people’s lives.

They hadn’t been persuaded because Anglo-Australian law prohibited it, he was very clear. After all, Anglo-Australian law prohibits all forms of corporal punishment and we know that however dynamic Indigenous criminal sentencing has been over the past century it hasn’t abandoned corporal punishment altogether.

No, his point was that Yolgnu lawmakers had been persuaded of the ethical basis for abandoning capital punishment.

It was at that festival that I met and had a chance to hang out with Marcia Langton a bit.

I floated with her and a colleague of hers from Melbourne (whose name, I regret, I’ve forgotten) a few thoughts about the debates I’d been listening to at the forum. She invited me to talk about those ideas at a forum, so I did, and the gist of these ideas is what I’m posting about today.

The idea of legal pluralism is a colonial solution

Discussions of Indigenous customary law in Australia have centered around the idea that we can recognise different customary legal processes as sitting aside Anglo-Australian law and procedure.

This has been referred to as legal pluralism: the operation of a dual legal system with Indigenous customary law a secondary or subset system.

This isn’t too weird an idea in Anglo-Australian law, as it turns out. To a certain extent some religious organisations are permitted to apply theological laws to their members, for example.

Yet the notion of Indigenous Australians having legal processes of their own has, historically, rubbed a lot of non-Indigenous Australians the wrong way.

That’s explicable given Australia’s really terrible racist past.

For me such a pluralist approach is inadequate because it’s such a missed opportunity.

It places the legitimacy of First Peoples’ law as within the power of the Anglo-Australian system to grant or withdraw.

And it doesn’t adequately reflect the very real shared values between First Peoples’ societies and imported Anglo-Australian society.

Embracing those shared values is the incredibly exciting opportunity that becoming a republic can enshrine.

So, here’s my pitch for constitutional reform and a genuine post-colonial Australian republic.

The constitutional and legal systems of Australian First Peoples and the British system imported here have a great deal in common.

Our law making bodies are constituted as distinct from our judicial bodies even if, in the case of some First Peoples, the same elders sit in a law making body and a judicial body.

In terms of the laws that are made, there are common principles.

There is property (the most important being land) that is common and property that is private to families and individuals. In Anglo-Australian law we refer to that nominally commonly owned land as Crown land, because it is actually owned by the Queen of Australia.

There are crimes against persons and crimes against property and those crimes are punishable according to established sentencing norms.

There are laws governing families and the care for and protection of vulnerable members of those families.

Historically, First Peoples’ laws governed trade between First Peoples and, in the north of the continent, trade with peoples of what is now Indonesia, Papua, South East Asia and, potentially, China.

And, perhaps most relevantly to the next part of this post, both Anglo-Australian and First Peoples’ legal regimes established protections for the culture and heritage transmitted from our respective ancestors.

It’s not just about recognition

The big hole, as far as I can see, in the form of recognition proposed by the Referendum Council was that it didn’t include recognition of the legal systems that existed prior to colonisation let alone talk about the shared values which ought to be celebrated in our constitution.

These shared values can be built into the constitution of our republic in a comprehensive way (say, including designated seats in parliament), but let’s just start with the Preamble.

We have to reject the arguments of conservative constitutional lawyers that changing the Preamble may alter the meaning of other sections of the Constitution.

Yes, it will. That’s the point. And that’s a good thing.

I’m not presumptuous enough to suggest the actual words of a Preamble. Just presumptuous enough to suggest the ideas it could cover.

That presumptuousness no doubt stems from my white, heterosexual, tertiary educated privilege.

Oh well.

Here are the kinds of sentiments that represent my thoughts, for what they are worth, on a foundation for future harmony.

  • For tens of thousands of years Australian First Peoples governed societies according to complex systems of laws.
  • Over two hundred years ago, British people began to impose their system of laws on the land and, gradually, Australian First Peoples.
  • The British were not invited and their advancing control of the continent was resisted.
  • We, contemporary Australians of all backgrounds, wish that our ancestors had respectfully collaborated to manage approved migration and the creation of communities governed by a shared understanding of the law whose wealth was exploited to the benefit of all according to their rights under the law (it probably would have avoided lots of contemporary social problems if we had).
  • It is too late for permission to migrate to this continent to be sought or granted, and many of the peoples whose permission would have been applicable have been obliterated by colonisation.
  • Living generations are only ever custodians of an inheritance we must understand and enhance for generations yet to come.
  • The descendants of migrants and those fresh to this country ask remaining First Peoples for forgiveness for the crimes of the past.
  • The remaining First Peoples forgive those crimes.
  • Australian First Peoples and those who have migrated here share common values about how we wish to be governed.
  • Together we wish to establish an Australian self-determination that celebrates those shared common values.
  • We value a system of government that enshrines the separation of executive, legislative and judicial powers.
  • We value a system governed by the rule of law.
  • We share values concerning property that is owned in common by all Australians and land that is owned by citizens, including citizens who own land collectively.
  • We share values concerning prohibitions on crimes against persons and property.
  • Etc. (insert further shared values)
  • Under this constitution we declare that our respective unique and distinct heritages of government and law are unified to create a new, uniquely Australian republic.

That’s the general idea, anyway.

Oh, and one more thing (for now)…

If, in thinking about a federal division of powers, we could replace the States, Territories and local government with provinces roughly  aligned with the old Aboriginal and Torres Strait Islander Commission Regional Councils (but which don’t slavishly follow the colonial State borders) that’d work alright I reckon.

Source: Human Rights Commission, Social Justice Report 2005

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