(Media Release from Michael Anderson Ghillar)
Ghillar , Michael Anderson, Convenor of the Sovereign Union, last surviving member of the founding four of the Aboriginal Embassy and Head of State of the Euahlayi Peoples Republic provides an insight into First Nations Sovereignty and how acceptance of the Voice and First Nations inclusion in the constitution can be declared as acquiescence to being governed by the colonial power.
“If First Nations agree to a Voice, which is only advisory with no power of veto and for which the colonial parliament legislates its structure and composition, international law sees this as acquiescence and a relinquishment of First Nations sovereignty which has never been ceded and for which so many of our people have died and continue to assert with the phrase ‘Sovereignty Never Ceded’.
“This reality was emphasised by an international lawyer, who was Dean for the Latin American embassies in Canberra. During our meeting he made it very clear to me that any participation that involves being included in the Australian constitution can and will be construed internationally as acquiescence, the agreeing to be ruled, consent to being governed, by the illegal occupying power. So the presence of the Aboriginal Embassy in Canberra, the spearhead of First Nations’ resistance, is flexing its power by negating acquiescence and empowering self-determination and the assertion First Nations continuing sovereignty.
“I have yet to see any analysis of acquiescence in the Referendum debates by the so-called experts and lawyers who are trotted out to validate the Voice, but perpetrate misinformation. The National Indigenous Times recently reported Nyungar Human Rights barrister Dr Hannah McGlade’s support for the Voice to parliament. The heading of the story ‘Voice will empower us, not undermine Sovereignty. This statement was also made by an Attorney-General’s senior official in response to questioning by Senator Lidia Thorpe in Senate Estimates. In his response to Senator Thorpe, he made the point that any constitutional change will not impact of First Nations Sovereignty, which is alarming disinformation. Any agreement to include, in the Australian Constitution, the Voice or recognition of First Nations Peoples will have significant legal and political impacts on the continuing sovereignty of First Nations through the concept of acquiescence.
“I note that Dr McGlade cited the Coe cases in the High Court, which essentially ruled that any challenges to the sovereignty of the occupying State is not justiciable. This is correct because the High Court of Australia is an organ of the occupying federated colonial government, that is to say the High Court is established by Section 71 of the Australian Constitution. This means that if the High Court itself was to rule on First Nations sovereignty, then it takes itself out of existence by recognising the true continental common law of the land. The High Court, however, belongs to the foreign system of the imposed colonial authority of the Crown. The Mabo Case affirms this in paragraph 83,
83 …The Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.
“This works both ways, as the High Court cannot rule on our continuing sovereignty of First Nations Peoples in Australia due to our unique sui generis status,
- … Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law.
Mabo v Queensland (No 2)  HCA 23; (1992) 175 CLR 1 (3 June 1992)
‘In saying this, the present Chief Justice of the High Court Keifel maintained the misinformation when handing down the Thoms and Love cases decisions on 11 February 2020, when she said in the majority ruling, that the decision of an Aboriginal Elder is absolute and cannot be overturned by an Australian court. Keifel CJ’s ruling was in error when the majority judgement ruled that this did not equate to recognising First Nations’ sovereignty – another case of discourse suppression, because if Thoms and Love were neither citizens nor aliens, their status is obvious.
“There are significant legal concerns that have to be fully fleshed out before there is any further talk of Constitutional inclusion given these facts. We need to consider what these constitutional proposals really are, because whilst the majority of First Nations Peoples object to constitutional inclusion, the media misinforms the public that there is ‘widespread support’ for the Voice, as a result of the engineered Yulara/Uluru Statement, which truly misrepresents the First Nations position and opposition, but is drowned out by mainstream media and the phoney so-called leadership and legal experts.
“We hear the Prime Minister Albanese almost crowing that Aboriginal and Torres Strait Islanders have been so generous to accept a Voice to Parliament that the Parliament establishes and controls it and they are not even asking for reparation. We must understand that this referendum is being put to the non-Aboriginal public (and there’s 25 millions of them). What the public doesn’t understand is the true nature of the consequences that this referendum will have on First Nations Peoples. Oddly enough the public are scarcely interested in the legal and political ramifications of constitutional change. The public wants to support change for the correct reasons, but are led to believe that the constitutional referendum is going to make significant impacts on the lives and wellbeing of First Nations Peoples. Sadly, this is more disinformation.
“The Labor Albanese government can in no way describe how constitutional recognition will shift the pendulum of ‘disadvantage’ that is currently being experienced by First Nations Peoples. This fact is borne out by a study of the Closing the Gap reports. First Nations people that I have spoken with around this country in the last six months have no idea of what constitutional inclusion truly means for them.
“Our people in the communities are seeking justice for the horrid crimes committed against them since colonisation and the crimes that are still being committed. Our people are sick and tired of the welfare mentality and the deficit model that continues to pervade and influence government and bureaucracy.
“I am not surprised that our people have spoken to me about the need for Royal Commission to look into the corruption that pervades the First Nations hierarchy from government to community-based organisations. They suggest the inquiry must include an investigation into the operations and functions of the Native Title Service organisations that are funded directly from the federal Attorney-General’s purse, because it is the Peoples’ view, from experience, that the Native Title Services, state and Federal governments are working hand in glove to severely restrict and curb successful Native Title applicants from being self-determining. More importantly there is an absolute abuse of the process where, for example, in WA the State Premier and Cabinet’s Guidelines for Connection to Country in Native Title claims instruct the Native Title Services, who facilitate the claims, to ignore or sideline true cognitive bloodline descendants to Country, but instead to include First Nations people who are living on the land at the time the Native Title claim is lodged. These claimants could have come from elsewhere. This corrupted process has devasted the community harmony right throughout Australia and denies true bloodline cognitive descendants to determine their own future on Country and foreigners get to control decisions on traditional lands which in many cases are against the wishes of First Nations owners. The royalties that are received from mining are controlled and manipulated by third and fourth parties which have control and manage these royalties through trusts. But as we well know Royal Commissions have delivered little to First Nations, with the majority of recommendations ignored.
“So I ask: How will inclusion in the constitutional alter all this corrupt activity and dictatorship through Australia’s support of an oligarchy system?
“Dr McGlade refers to Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples,
Indigenous peoples have the right to participate in decision-making
in matters which would affect their rights, through representatives
chosen by themselves in accordance with their own procedures,
as well as to maintain and develop their own indigenous decision making
“But everyone has to realise that Australia views the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as an aspirational document only, with no legal effect in domestic law.
“Her reference to the Uluru statement fails to acknowledge that First Nations Peoples representatives who were chosen from the different regions to attend the Uluru Conference to express the grassroots views and to raise key topical matters that the grassroots want dealt with at the political and legal level were prevented from having a voice at that forum by the gatekeepers employed by federal government funding within the peak First Nations bodies.
“The conference at the Yulara/Ayers Rock resort (not Uluru) was in fact a closed conference restricted to authorised personnel only. The individual First Nations persons who made their own way there to participate from various parts of Australia were not permitted in the main conference hall, because they were not approved delegates and the organisers proceeded to direct them to watch the proceedings by a video link in an adjacent room. When the ‘Walkout’ happened even NITV was prevented from broadcasting. Videos from this conference are available here:
“In Dr McGlade’s statement she says, “The Voice cannot be construed as cession of Aboriginal sovereignty by way participation in the Commonwealth parliament and the Australian body politic any more than the participation of Aboriginal politicians on behalf of their political parties.” This also means that the restricted ‘invitation only’ Uluru conference does not truly reflect the true nature of First Nations Peoples’ aspirations and objectives from the grassroots communities, which must be interpreted in the same way.
So the Uluru statement must be measured in the same way – i.e. a highly restricted number of people who have vested interests.
“Dr McGlade also referred to that 1990s Aboriginal and Torres Strait Islander Commission’s (ATSIC’s) call for a Treaty, but omits the fact that the Fraser government in 1979 agreed to negotiate a national Treaty between the Commonwealth government of Australia representing the Australian public and the popularly elected National Aboriginal Conference (NAC). This was a result of the National Aboriginal Government protest led by Kevin Gilbert on Capital Hill, Canberra, before the new Parliament House was built in August 1979. See Kevin Gilbert, Aboriginal Sovereignty, Justice, the Law and Land, Burrambinga Books, 1987.
“The federal government attempted to find an alternate name to the word treaty and settled on a Yolngu word Makarrata. The NAC was in the process of returning back to the name treaty in reference to Makarrata because the Elders at Santa Theresa community in SA were offended by the NAC consultants, who attended their community because they knew the true meaning and definition of Makarrata and made it clear they would not participate in anything using that terminology.
“I conclude by making the following three points:
“Firstly, What confidence can First Nations have in a Federal Government that has not incorporated the UN Charter 1945 into domestic law. The matter of Ngurapmpaa v Balonne Shire Council in Supreme Court of Queensland involved the right of Balonne Shire Council to charge Euahlayi People land rates on land that had been returned as redress for dispossession. On 30 April 2014 counsel for Balonne Shire Council argued that the Charter of the United Nations does not have force of domestic law in Australia, ‘…what is now s.5 of the Charter of the United Nations Act 1945 serves only for the purposes of international law, to ratify Australia’s participation in the United Nations.’ The Commonwealth of Australia’s Charter of the United Nations Act 1945 Part 2, Section 5, as amended in 2010 states, ‘The Charter of the United Nations (a copy of which is set out in the Schedule) is approved.’
In Bradley v Commonwealth 1973, however, Chief Justice Barwick with Gibbs and Stephen JJ ruled that the ‘Charter of the United Nations Act 1945 did not make the Charter binding on persons within Australia as part of the municipal law’ and ‘neither the Charter nor the Resolution of the Security Council had been carried into effect by legislation in Australia.’
“Secondly, is the concern expressed by the international lawyer, who was Dean of the Latin American embassies in Canberra, and advised me that any participation that involves being included in the Australian constitution can and will be construed as acquiescence and agreeing to be ruled by an illegal occupying power.
“Thirdly, How can we trust either Labor of Liberal governments to do the right thing for us when they refuse scrutiny by international Human Rights Rapporteurs from UN to investigate Human Rights violations in Australia, e.g. The Committee for the Elimination of All Forms of Racial Discrimination and the Subcommittee on Prevention of Torture, which was ‘prevented from visiting several places where people are detained’ in October 2022. The Court House holding cells at Queanbeyan, New South Wales, was one of the sites the delegation was refused entry.
“Fourthly, How can we trust any government that refuses to enact a law against genocide. Maybe they fear we will bring genocide charges against them and seek reparation.
“For a refreshing insight I suggest readers go to Prof Irene Watson’s lucid analysis of the Voice published in Pearls and Irritations on 29 October 2022. Irene Watson belongs to the Tanganekald, Portuwutj, Meintangk and Bunganditj Peoples and works at the University of South Australia as the Pro Vice Chancellor of Aboriginal Leadership and Strategy, and Professor of Law, and has published extensively on colonialism and Indigenous Peoples. Her article begins, The Voice to the Australian Parliament provides no hope and no future for First Nations imprisoned by ongoing colonialism. It will not work towards de-colonisation in Australia. In practice it will support colonial decision making which affects Aboriginal lives in the distant metropolis of Canberra.
“We cannot trust the thief who is the judge. Maintaining our continuing sovereignty is our best protection.”
[Ghillar, Michael Anderson is Convenor of Sovereign Union of First Nations and Peoples in Australia and Head of State of the Euahlayi Peoples Republic, his email address is firstname.lastname@example.org,]