1. Australia has troops, police and advisers deployed in East Timor, Papua New Guinea, the Solomon Islands and elsewhere.  Considering the ability of the Commonwealth to admit new States to the Federation under s. 121 of the Constitution, would the admission of some or all of the Pacific microstates into the Australian nation be beneficial or detrimental to either party?  Would some alternative (perhaps analogous to the status of Puerto Rico) be preferable?

Introduction

This paper will suggest that Australia has not ventured far enough down the path of decolonisation, nor has it substantially moved away from its monocultural exercise of power in order for Australia’s structures of governance to competently fulfil the aspirations of Pacific Island nations. Until Australia transfers significant jurisdictional power to its Indigenous nations, investing in and fostering these partnerships, then, and only then, should similar models be offered to struggling Pacific Nations.[1] Otherwise, any governance agreement is only bound to lead into tension and frustration for the weaker State concerned. Nonetheless, a model shall be discussed to include Pacific Nations into Australia’s federation – one that encompasses a system of shared sovereignty. This paper will show that cultural autonomy from the dominant Australian culture is a proven indispensable element to creating an economically successful nation. This would therefore have to be reflected in the constitutional arrangement that takes place under s.121.

     The first section will briefly highlight the monocultural tendencies of Australia’s federation as the primary adjustment required in order to accommodate Pacific Nations within its structure of governance. The second section shall discuss the necessary elements for nation building within a federation – such as the recognition of sovereignty and the match between culture and the institutions that organise and exercise that authoritative sovereignty.

Monocultural Governance

Of the 43 men and 3 women appointed to the High Court, ‘there has yet to be an appointment not of Anglo-Celtic background’.[2] Legal reasoning, despite its claims to objective universality is a pattern of cultural thought specific to its origins. All interpretations of law are cultural,[3] yet the Australian legal system hides its bias of Anglo values in its supposed objectivity. This not only naturally rewards those who share the same culture but operates to the detriment of those who do not occupy such a worldview. Furthermore, political theorists have contended that ‘western political thought has often embodied a series of culturally specific assumptions and judgements about the relative worth of other cultures, ways of life, value systems, social and political institutions and ways of organising property.’[4]

This arises in part because Anglo culture is dominant in Australia; this dominance creates the illusion of its culture being ‘normal’ and sets the benchmark in which Islander culture would be (and Indigenous culture is) judged. As former High Court Chief Justice Gerard Brennan has noted extra-judicially, ‘Perhaps the independence that is most difficult for judges to achieve is independence from those influences which unconsciously affect our attitude to particular classes of people. Attitudes based on race, religion, ideology, gender or lifestyle that are irrelevant to the case in hand may unconsciously influence a judge who does not consciously address the possibility of prejudice and extirpate the gremlins of impermissible discrimination.’[5]

            This impermissibility has been compounded since Cole v Whitfield[6] confirmed in 1988 that originalism can be utilised for textual interpretation of the Constitution.[7] The creation of the Constitution captures a time in Australia that saw, at its centre, a cultural uniformity as the natural destiny for the nation. When the intentions of federation’s fathers are seen as a reliable source over and above contemporary international standards which are often seen to hold ‘shifting and uncertain values,’[8] the holy spirit of white Australia is naturally invoked. Values dear to white Australia necessarily come to the forefront and judgments will always be made to protect those interests. This is evidenced in Singh v Commonwealth[9] where the court had to decide whether the word ‘alien’ in s.51 (xix), applied to a child facing deportation who was born in Australia to Indian citizens. It was agreed that textual interpretation via the convention debates was required to give meaning to the application of the word ‘aliens’. Originalism played its part in the 5:2 decision that this Indian girl was an alien of Australia and in so doing, the Court impliedly insisted on a Stare Decisis of Australian monoculturalism. If Pacific Nations were incorporated into Australian federalism under s.121, Pacific Islander culture would be subsumed beneath the 106 year empire of Anglo-Australian federal constitutionalism.

While some ‘non-Anglo’ cultural rights have been legally recognised such as native title, these have been limited to subservient land rights[10] and the hunting entitlements that arise from it.[11] While Australian courts dissect what parts of Indigenous culture are ‘legitimate’ there has not been, as Professor Mick Dodson has said, ‘a full acceptance of Indigenous society as a source of law.’[12] One such case where cultural law was at the foundation of a legal claim and was deemed illegitimate by Anglo Courts occurred in the criminal trial of Galarrwuy Yunupingu.  In this case[13] he relied on an honest claim of right[14] as a defence to permanently depriving a photographer of his film used to photograph Gumatj children without permission – in contravention to Indigenous law. He claimed the defence of honest legal right, as Australian law allows, [15] but this was a type of legal right that Anglo law decided not to recognise.[16] This decision denied Indigenous people the means to enforce their laws – even those that are amenable to the common law – on their own statutorily recognised land.[17]

The Northern Territory Court of Appeal relied on Kirby J’s judgment in Wik stating:

‘the source of the enforceability of native title in this or in any other Australian court is, and is only, as an applicable law or statute provides.  Different considerations may arise in different societies where indigenous peoples have been recognised, in effect, as nations with inherent powers of a limited sovereignty that have never been extinguished. This is not the relationship which the indigenous people of Australia enjoy with the legal system of Australia.’[18]

Here the judiciary is limiting its own common law ability to recognise another culture’s source of law through circular reasoning that states because the High Court hasn’t yet recognised any form of sovereignty, it is at present, unable to recognise any form of sovereignty. This is despite the High Court’s imbued power to overturn its past judgments. This resistance can be contrasted with the United States’ common law, which 70 years prior to Australian federation, recognised through Marshall CJ’s ‘domestic dependent nations’ doctrine that Native American nations retained inherent sovereignty; albeit of a limited scope.[19]

While the Australian judiciary guards its monocultural authority, it should be noted that the legislature is better equipped to recognise ‘dissimilar’ culture as a legitimate basis for law and governing institutions. In comparison to other democratic federations, Australian legislatures remain virulently protective of their monocultural exercise of power. In 1979 the Commonwealth legislated for the creation of autonomous political and administrative institutions to establish a system of self-governance for the people of Norfolk Island in recognition of ‘the special relationship of the descendants with Norfolk Island and their desire to preserve their traditions and culture.’[20] No such opportunity has been provided for Indigenous Australians, despite their repeated yearnings for similar recognition. The Australian government’s devolution of power over Norfolk Island occurred essentially because of the self-referential cultural similarity that exists between them. Until this devolution of power is extended to those already in its jurisdiction who do not share the same worldview, no Pacific Island should be subjected to the authority of the Australian Sovereign. However, if a shared system of governance was desired by Australia and Pacific Nations, the following section shall outline themes for the best possible arrangement.

Constitutions & Cultural Match

All across the world businesses, political parties and national entities have a constitution that is (or was) intended to reflect the culture it wishes to portray and promote to the world. In other words, institutions must match their culture in order to best achieve their desired goals. Furthermore, the constitution must also be constructed by the people in that culture in order for it to have any meaning and legitimacy for the people it intends to represent. While the Australian Constitution was written only by male professionals and landed gentry[21], it has more or less come to represent the dominant political culture in modern day Australia in regards to the operation of its power-sharing institutions. It has never, and will never ‘match’ Indigenous or Pacific Islander’s cultural structures for exercising authority. But despite this assertion, the sovereign rights and powers these political entities can recognise each other as possessing could become realised precisely through s.121 of the Constitution. 

               Section 121 allows for the inclusion of a new State and permits those terms and conditions to be determined by Parliament. The central terms of this agreement would have to ensure protection of cultural values so as not to be frustrated by Commonwealth intervention. The main challenge for Pacific (and Indigenous) Nations is building capable governing institutions that match their cultures in which people and local economies can flourish. This requires a large degree of self-determined governance which becomes trickier within a federal structure that, by its nature is a system of co-determination. The countervailing strength of federalism is that it ‘permits a measure of governmental autonomy for regional political communities through State institutions.’[22] The scope of this regional autonomy would be the most important, yet one of the hardest balances to achieve under section 121.

               The negotiations over what aspects of the federal Constitution apply to the State would mimic the discussions between the US and Puerto Rico that resulted in the 1952 ‘Commonwealth Solution.’ The ambition for Australia should be to avoid the frequently applied ‘colonialism by consent’ label that the US/Puerto Rican arrangement has,[23] by recognising the crucial role that sovereignty – as the legitimate basis for decision making – has to play. This would require extra limits to be placed on the Commonwealth, particularly through s.109 and s.51. A superficial glance would encourage the exclusion of the Commonwealth to use the race power s.51 (xxvi) which would border on plenary power over the Islanders lives. Similarly s.25 would also have to be abrogated as it permits the State to deny any of its racial minorities from voting in the House of Representatives if the State so chose to exercise that power.

Economic Development

The foremost incentive for a Pacific Island to enter Australian Statehood would be reaping the benefits of a steady economic flow through Commonwealth taxation[24] and the free trade between States[25] protected by s.117 of the Constitution that forbids the Commonwealth to discriminate between subjects in different States. This economic enticement however, comes at the risk of the Commonwealth’s fiscal purse being used to coerce a State’s aspiration into one that more closely resembles its own agenda. Preserving cultural traditions and promoting institutions that match those traditions is central to sustained economic development; one which the Commonwealth Treasury is in a unique position to facilitate.

Research conducted by the Harvard Project on American Indian Economic Development (HPAIED)[26] has closely monitored Indigenous nations and identified the key ingredients to building successful economies within a federation. After more than a decade of research they have concluded firstly that ‘without sovereignty and nation-building, economic development is likely to remain a frustratingly elusive dream.’[27] Unlike Indigenous Australians whose sovereignty remains resolutely denied,[28] Pacific Nations enjoy sovereignty and the final agreement under s.121 would need to honour this fact. Analysing the 67 Native American Nations surveyed by the project, they concluded ‘that those tribes who have broken out economically and have really begun to sustain economic development are uniformly marked by an assertion of sovereignty that pushes the Bureau of Indian Affairs into a purely advisory role rather than a decision making role.’[29] Sovereignty is the starting point; it provides the foundation for the exercise of local leadership and decision-making. HPAIED’s ‘evidence indicates that a federal policy of supporting the freedom of Indian nations to govern their own affairs, control their own resources, and determine their own futures is the only policy orientation that works. Everything else has failed.’[30]

            Therefore to encourage economic development, placing extra limits on the Commonwealth’s powers of imposition over the State are required to ensure that the authority of local decision making stays in the State’s hands regardless of the transient federal government’s ideology. Placing the development agenda beyond an imposing reach of an ‘outside’ power gives legitimacy to the local governing authority and marries local decisions with their consequences, which naturally leads to better decisions. Mistakes will be made, but the community will own the problem rather than blaming federal interference. As the continuing legacy of colonialism attests to, these nations cannot ‘rely on someone else’s institutions, someone else’s rules, someone else’s models, to get things done.’[31] But it does require the initial financial investment that the Commonwealth is in a position to provide. This is the basis for modifying section 109 to suit a compromise that does not frustrate principles of self-determination but still honours the Commonwealth’s legislative authority.

A model for cultural safeguarding within section 109 could be adapted from Finland. Through constitutional amendments in 1995, the Finnish people guaranteed cultural autonomy for the Saami Indigenous people by inserting a provision that all government authorities have to negotiate with the Saami Parliament before implementing measures in their homelands.[32] This coupled with an allocation from the State budget to foster and encourage Saami language and culture alongside constitutional protection of linguistic and cultural rights[33] ensures their distinct identity continues while still enabling the Saami to enter into the dominant economy and participate in national life. If section 109 was in some way restricted in areas where cultural difference is central to the substance of the proposed law, this could provide a balance between the Commonwealth’s legislative authority and the State’s cultural rights.

Conclusion

Law administers the expression of culture. Law adapts to the cultural values of those who have the power to influence and interpret the law. If Pacific Nations only have subsidiary power to influence their law and their institutions in a federal structure, they will refuse to view that system as legitimate – and development will be perpetually stunted. Section 121 provides a means to instigate a legal relationship that transfers wealth to the region, yet it also allows (and requires) mechanisms for culturally matched institutions to exercise their nation’s sovereignty. This in turn bestows legitimacy upon the community leaders who are invested with the power to make decisions with finality.

Systems of (culturally distinct) shared sovereignty can successfully coexist in a federation as the Nunavut Territory[34] in Canada, and the First Nations in the United States attest to.  The current wealth of the Commonwealth is crucial to investing in struggling nations, but our nation’s primary debt is owed to the Indigenous Nations of Australia. Money alone cannot reduce dependency; it must be coupled with a devolution of governmental power that enables these communities to take responsibility for their political decisions and the consequences – good or bad –that flow from them.

Bibliography

Books

Blackshield, Tony, Coper, Michael & Williams, George (eds.) (2001) Oxford Companion to the High Court of Australia

Hanks, Peter. Keyzer, Patrick. Clarke, Jennifer. Australian Constitutional law: Materials and Commentary. LexisNexis Butterworths 2004

Hocking, Barbara (ed.) Unfinished Constitutional Business? : rethinking Indigenous self-determination. Aboriginal Studies Press 2005

Ivison, Duncan. Patton, Paul & Sanders, Will. (eds.) Political Theory and the Rights of Indigenous Peoples. Cambridge University Press (2000)

Journals and Reports

(1995) 20(1) Alternative Law Journal

(2000) 5 (3) Australian Indigenous Law Reporter

Canadian Royal Commission on Aboriginal Peoples, Report 2, Part two

(1994) 11(15) Constitutional Commentary

Cornell Stephen & Kalt, Joseph.

Sovereignty and Nation Building: The Development Challenge in Indian Country Today. http://www.ksg.harvard.edu/hpaied/pubs/pub_121.htm

(2000) 24 Melbourne University Law Review.

(2001) 13 Yale Journal of Law & the Humanities 58

 (2001) 24(3) UNSW Law Journal

Cases

Coe v The Commonwealth of Australia and the United Kingdom (1979) 53 ALJR 403

Cole v Whitfield (1988) 165 CLR 360

Director of Public Prosecutions Reference no.1 of 1999 (2000) NTCA 6

Mabo v Queensland (no.2) (1992) 175 CLR 1.

Singh v The Commonwealth (2004) 209 ALR 355

Walden v Hensler (1987) 163 CLR 561.

Wik Peoples v Queensland  (1996) 187 CLR 1

Worcester v State of Georgia 31 U.S (6 Pet.) 515

Yanner v Eaton (1999) HCA 53.

Statutes

Aboriginal Land Rights (Northern Territory) Act 1976

Commonwealth of Australia Constitution Act 1901.

Criminal Code Act (Northern Territory)

Norfolk Island Act 1979 (Cth)

(The Finnish) Parliament Act (1995)