Activist sees court judgment questioning jurisdiction over Aborigines

Aboriginal activist and trained lawyer Michael Anderson says a recent appeal court decision implies that Australian courts have no jurisdiction over Aborigines because they have never ceded sovereignty to the white invaders.

On Friday 30th September Mr Anderson appeared in a NSW District Court hearing an appeal by Ms Nicholson-Kitchener against her conviction for using an uninsured motor vehicle at Deniliquin and driving without a license.

Mr Anderson writes in a media release: “Clearly, the judge says in his concluding statement....that the case against her was proven but that she was released without a conviction being recorded against her name.

“This judgement did in fact overturn the Magistrate’s findings, thereby dismissing those guilty findings, as well as overturning any reference to a criminal record, which would have been the case had she not appealed it.

“This is an odd decision from my viewpoint because the judge essentially concluded the case by squaring the ledger, that is, the case was proven – that she committed wrong under Western law – but freed her of the alleged wrong doings, implying an issue of lack of jurisdiction.”

“Clearly, this is not an issue that any government or attorneys-general want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.”

Mr Anderson’s release in full:

On Friday 30th September I appeared in NSW District Court in the matter R v Nicholson-Kitchener in the criminal jurisdiction (case number: 20100040578). The matter is related to Ms Nicholson-Kitchener being charged with the use of an uninsured motor vehicle at Deniliquin and driving without a license.

The District Court matter arose as a result of an appeal in the Magistrate’s Court in Deniliquin by Ms Nicholson-Kitchener. I prepared arguments in the original Magistrate’s Court in this matter, arguing unceded Aboriginal sovereignty and questioning jurisdiction.

In the written submission in the Magistrate’s Court I argued that given Mabo judgement No. 2, which implied that Aboriginal sovereignty is continuing, then this is a matter for another jurisdiction, i.e. the International Court of Justice (ICJ).

I contend that if we have a situation of contested sovereignty, which is implied in the Mabo judgement No. 2, then legal jurisdiction over Aboriginal people is in question.

With the appeal to the District Court, I expanded the written submission, arguing that in 1841 there was great debate in the NSW Supreme Court on the jurisdiction question, with the courts arguing that Aboriginal people had to be subject to some legal jurisdiction, mainly because of the constant conflict that was occurring between the traditional sovereign owners and the invader settler society.

These conflicts came down to conflict over property, that is, the invaders’ society squatted and took possession of Aboriginal lands, waterways and natural resources. Aboriginal people, who fought the invading force, were charged with violations and criminal misconduct for trying retake their traditional property.

The dominant colonial society created laws to protect that which they held by force and created a criminal code that prosecuted Aboriginal people as thieves, when they tried to retake their own traditional lands back.

The laws that now exist in Australia are all about protecting property rights of the invading thieves themselves and criminalising Aboriginal efforts to regain lands and waters. This continues to this day.

Given that there are no treaties that ceded our sovereignty to the British invader, I asked in my submission to the District Court Judge R. Toner, at what time in history did the British usurp Aboriginal sovereignty under existing law at the time, and at which time did the traditional customary laws of the land in Australia governing Aboriginal peoples cease to exist.

What time in history did Aboriginal law cease to exist and British law govern Aboriginal people?

In response to the District Court judgment of 30 September 2011, Judge Toner SC, in his written judgment, has maintained the status quo by citing Denis Walker’s case in the High Court 1994. Judge Toner said that Chief Justice Mason at that time alleged in his judgment that the common law was the only valid law and its application to Aboriginal people is to the extent to which it has been accepted by them.

In the other cases Judge Toner cited in his written judgment he failed to prove that there was in fact jurisdiction over Aboriginal people and basically agreed to the NSW Attorney-General’s response to Neville Chappy Williams on 13 October 2011, when he said the laws have been applied to Aboriginal people ‘consistently’ since colonisation:

The courts have consistently held that the fact of sovereignty of Australia and New South Wales over Australia is something which cannot be considered or challenged in the courts of Australia. The courts have also confirmed that sovereignty over Australia was validly acquired at colonisation and the common law of England properly received at that colonisation applies to and binds equally all those in Australia, including colonists, later immigrants and indigenous people. In the light of that, it is neither necessary not appropriate to provide you with any documents as to the so-called ceding of sovereignty by any people.

Clearly, the judge says in his concluding statement on the Nicholson-Kitchener matter that the case against her was proven but that she was released without a conviction being recorded against her name, i.e. a Section 10.

This judgement did in fact overturn the Magistrate’s findings thereby dismissing those guilty findings, as well as overturning any reference to a criminal record, which would have been the case had she not appealed it.

This is an odd decision from my viewpoint because the judge essentially concluded the case by squaring the ledger, that is, the case was proven – that she committed wrong under Western law – but freed her of the alleged wrong doings, implying an issue of lack of jurisdiction.

Clearly, this is not an issue that any government or Attorneys-General want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.

But if you do this, then we must walk together and support each other, because almost all white lawyers and the black lawyers trained in this country cannot think outside the square boxes to see the arguments from our point of view, because they have sworn allegiance to the Crown.

Contact: Michael Anderson 0427 292 492 or 02 68296355



Clearly, this is not an issue that any government or attorneys-general want to deal with in this country, but the time has come when we must have this debate and deal with the unceded sovereignty issue. I urge all of our people to challenge jurisdiction at every opportunity they can.”
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Yes the question of sovereignty is vital and difficult.

It is unfortunate that the Green's Senator Siewert promised to produce a private members Bill in Federal Parliament to pursue sovereignty, but presumably did nothing.

"What’s your preferred word for a foreign ship coming to your country its crew sticking a bit of cloth on a stick (called flag) into your beach and saying from now on this huge continent they haven't even seen, belongs to a faraway bloke called king?,"British comes to mind, I thought you were talking about Ireland for a second but then you did not mention slaves as the Irish were, this treatment was put on the Irish for 800 years so you must be talking about Australia when you say 200 years and huge continent, white people were victims of invasion too but a lot more brutal, it is not the word invader that gets me going it is the word WHITE that gets me going because it is as racist as the word black. "Hard history to feel comfortable with, isn't it? Own it, grieve and do better".Tell me why as a ancestor of Irish prisoners should I "own it" at least the Aboriginals that survived the British slaughter got to stay in their country not like the Irish.So don't turn this into a Black and white thing when it is a British thing. We don't need racist comments to divide the colour of a persons skin, the Spanish were just as bad as the British and they were not white were they. The Mouries that invaded New Zealand we not white were they So wake up and see whites don't have a monopoly on Invading countries just the same blacks don't have a monopoly on being invaded so next time keep your racist comments to your self it does you cause no good

I’m not belittling the horrors perpetrated on the Irish nor am I asking you to own Australian history, unless the shoe fits. Nor am I denying the other invasions you cite. Wherever the invaders were Europeans, those they invaded still suffer. Just think of South America, where almost exclusively whites still have the money and the power, and in some cases are still murdering and displacing indigenous people. When I was at school almost the entire world map was coloured red for British empire. Red = trail of blood. I’m not anti-white when I cite a thumbnail Australian history; the facts are irrefutable. I just try to change the minds of those who refuse to acknowledge them. That lack of acknowledgement keeps us all stuck in a system that will continue to brutalize our Indigenous compatriots unless we walk with them in their struggle for justice and a fair shake of the stick.

Mate we all know the British invaded Australia and killed Aboriginals but lets face if they didn't we would all be back in Europe, imagine having to live in Germany or England or Greece I for one are glad the British invaded Australia because I now live in the best country in the world.
I thought our Government said sorry to the Aboriginals is that not acknowledgement? I work with people of Aboriginal blood they are good blokes and don't get treated any different to me.Tell the Aboriginals to come to Melbourne we will give them jobs but if you don't pull you weight your out.Most Australian don't care where you come from you are either a good bloke or a knob.If Aboriginals want a fare shake tell them to move to the capital cities there is no opportunity in the bush for them there is no work shit schools crap housing why do they stay there?living where they live is what drags them down we all have to leave home some time so dont tell me it's their ancestral land big deal you got to get out in the big bad world if you want to make it.
So to all you Aboriginals out there stop crying and do something for yourselves go overseas if you have to and make a clean break make some money just do what you have to

Geoff , you do not know nothing about aboriginal mob culture , their sprit !! making above comment its very easy for you , cus you was born aboriginal as a white!!! if you was aboriginal you could not say easily thats way !!!cus then you would have realize what happened with you in your own country , thats disgusting, and you would come out the same way , where our black mob at the moment!!!

You want to know something Geoff? Where I'm from, the Aboriginal people don't live in the bush. We live in cities and a lot of us have jobs and good educations but that doesn't mean that we can just forget the past. I have lived my life so far looking tanned with dark eyes and hair, but no one would guess I'm Aboriginal and that's because of the fact that the British destroyed my culture, but I digress.

The point I've been trying to get to is this: You saying for us to 'tell the Aboriginals to come to Melbourne' just shows how ignorant you are of the modern cultures and societies. Granted, there are a lot of Aboriginal families who live in the bush areas but that's not at ALL how all of us live.
And on a final note, you have no right to tell us to stop crying and do something for ourselves. The Aboriginal culture and spirituality is ridiculously strong, meaning we give a shit about our past and our ancestors, and knowing what happened to them and the kinds of pain and suffering they went through makes us grieve for them. You have your ways, we have ours.

So in conclusion, don't talk about what you don't know.

Centuries ago you white people chose the path of science and technology. That path will destroy the planet. Our role is to protect the planet. We are hoping that you discover this before it’s too late. - Reuben Kelly, Aboriginal Elder

We pay our respect by acknowledging the elders, the traditional owners and our ancestors of the land.

Stand Up!

The world's oldest surviving peoples, animals, water, land, culture and legacy for future generations are in great despair. We are rising one by one to defend ourselves and mother earth. Brothers and sisters please stand together peacefully and speak for our mother and all her children. This is enough senseless destruction of our pristine beauty, we know a better way than the current, we must present it at the global table for discussion.

James Price Point - '10,000 Amend' gathering - peaceful protest against destroying 'country' for mining - 10,000 spiritual warriors for our

(Ancient Mother Earth & the New Dreaming) – 20 days of entertainment

When: 10 – 30 Oct 2011

Where: James Price Point - Western Australia

Join the protests from 10th October 2011 (For two weeks).

If possible please print copies to spread the word wide and far.

Australian columnist found guilty of breaching Racial Discrimination Act
By Patrick O’Connor
7 October 2011

The Federal Court of Australia last week ruled that right-wing Murdoch newspaper columnist Andrew Bolt was guilty of breaching the Racial Discrimination Act due to an article he wrote in 2009, accusing “fair skinned” Aborigines of choosing their racial identity to advance their careers. The judgement has highlighted the deeply reactionary provisions of the Racial Discrimination Act, and establishes a dangerous precedent for the illegalisation of left-wing opposition to race-based identity politics.

Bolt is one of Australia’s most notorious and prominent media commentators. He specialises in provocative diatribes targeting Aborigines, Muslims, welfare recipients, environmentalists, climate scientists, the UN, and other bête noires of the far right. He is widely promoted, and has a regular column in the Melbourne Herald Sun newspaper, a weekly television programme “The Bolt Report”, and receives regular invitations to speak on the government-owned ABC television network.

In April 2009, Bolt wrote a newspaper column titled “It’s so hip to be black”, condemning what he called “the white face of a new black race—the political Aborigine.” The column accused some “white” or “fair” people of choosing to be Aborigines on “almost arbitrary and intensely political [grounds], given how many of their ancestors are in fact Caucasian.” Bolt went on to assert that “there is a whole new fashion in academia, the arts and professional activism to identify as Aboriginal”, adding that “full-blood Aborigines may wonder how such fair people can claim to be one of them and take black jobs.” The column cast doubt on the legitimacy of fifteen prominent people—including academics, writers, artists, and politicians—choosing to identify as Aboriginal.

Nine of those named by Bolt took him and Murdoch’s News Limited to court on the basis of the Racial Discrimination Act, specifically the “racial hatred” sections of the legislation that were added in 1995. These provisions outlaw any public act that “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and “is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.” Exemptions on the grounds of public debate and free expression are permitted, under section 18D of the Act, only for “anything said or done reasonably and in good faith”.

In his ruling on the case, Justice Mordecai Bromberg explained that under the Racial Discrimination Act: “Whether conduct is reasonably likely to offend, insult, humiliate or intimidate a group of people calls for an objective assessment of the likely reaction of those people... General community standards are relevant but only to an extent.” He concluded: “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles.”

The Federal Court further found that Bolt could not claim a section 18D exemption, because of “the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.” Justice Bromberg also cited Bolt’s “derisive tone, the provocative and inflammatory language, and the inclusion of gratuitous asides” as grounds for ruling against the column’s “reasonableness” and “good faith.”

These findings are extraordinary. For a start, “offensive” commentary is determined not on the basis of any objective measure, or by estimating the likely response of a typical Australian citizen, but rather by the reaction of the group allegedly targeted.

Andrew Dodd, senior lecturer at the School of Journalism at Swinburne University, noted: “There would be lots of instances where we’re talking about minority groups, or religious groups, where we’re going to write stuff that really questions their practices. You know, if we’re talking about Scientologists, or the Exclusive Brethren, or a Muslim group, or any one of a number of minorities we’re going to be saying things about them that they’re not going to like hearing. Now, have they got grounds under the Racial Discrimination Act to say, ‘You know what? I’ve been offended by what you wrote. I’m going to take an action against you under the Racial Discrimination Act, and this ruling might just help me.’?”

All manner of politically-motivated prosecutions may follow the Bolt judgement. To take one potential example—American author and critic of Zionism Norman Finkelstein wrote The Holocaust Industry, which examined the way the Holocaust had been exploited to advance various material interests. The Racial Discrimination Act would now appear able to be used to prosecute Finkelstein in Australia, on the basis that pro-Zionist Jewish groups found his work “offensive.”

There are other serious implications. Justice Bromberg’s judgement interprets the exemption clause in the Racial Discrimination Act requiring “reasonableness” and “good faith” in a manner that prohibits statements made with a “derisive tone” and in an “inflammatory and provocative” manner.

The ABC’s Jonathan Holmes noted: “In other words, if you want the protection of section 18D of the act when writing about race in a way that’s likely to offend, you need to be polite, not derisive, calm and moderate, rather than provocative and inflammatory, and you must eschew ‘gratuitous asides’. If you did all that, of course, you’d be unlikely to offend anyone in the first place. So there doesn’t seem much point in section 18D.”

Justice Bromberg rightly condemned the many factual errors and distortions in Bolt’s column. The columnist, for example, wrote that Larissa Behrendt, Professor of Law and Indigenous Studies at Sydney’s University of Technology, had a German father. Her father is in fact Aboriginal. Behrendt and the other eight people who brought the legal action also testified that they had been raised as Aboriginal from childhood, and had not chosen that identity as young adults to advance their careers, as the newspaper column had implied.

The kind of false accusations against specific individuals contained in the Bolt column would normally have given rise to charges of defamation. Within the framework of the Racial Discrimination Act, however, Bolt’s factual errors were largely irrelevant. It appears that he would have been found guilty even if he had been able to prove beyond doubt that everyone he named in his column had chosen to call themselves Aboriginal solely for personal gain.

Justice Bromberg declared: “In seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for, and acceptance of, racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so... Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.”

This finding underscores the political character of Bromberg’s judgement, which is explicitly aimed at reinforcing the official ideology of the Australian ruling class.

From the mid-1970s onwards, “multiculturalism” has been promoted as a refashioned national ideology, in the wake of the collapse of the “White Australia” program. The central purpose of “White Australia” was to provide the necessary ideological cement for the young Australian nation-state amid deep class divisions. Its central purpose was to undermine the development of class consciousness in the working class, through the promotion of a national and racial identity across class lines. As Australian capitalism developed closer trade and investment ties with Asia, however, it became untenable for the ruling elite and its political representatives to retain the old isolationist and xenophobic policies. Multiculturalism was fashioned as an alternative, “progressive” means of undermining the development of a unified and independent political movement of the working class. Over the past three decades, in line with similar processes internationally, “identity” politics has predominated in academia, the media, and throughout political, social and cultural life, with ethnic, racial, linguistic, religious, gender, and sexual distinctions elevated above class.

In relation to Aboriginal issues, this agenda has involved various initiatives—”reconciliation”, land rights, an apology for members of the stolen generations. These have been aimed, above all, at covering up the historical reality that it is the capitalist profit system—not “all white people”—that has been responsible for the dispossession, genocide, and continued oppression of the Aboriginal people. At the same time, definite material privileges and career opportunities have been provided to a narrow layer of Aboriginal bureaucrats, landowners, businesspeople, and other middle-class strata that have been cultivated as a new black elite.

For ordinary Aboriginal workers and young people, on the other hand, social conditions have only continued to deteriorate, with ongoing poverty, unemployment, poor health and drastically lower life expectancy than other Australians, as well as lack of access to basic social services and infrastructure.

It remains unclear to what extent the Bolt verdict has established a precedent that could be used against the socialist critique of “multiculturalism” and Aboriginal identity politics. The World Socialist Web Site and the Socialist Equality Party have a clear and principled position on these issues, advancing a perspective aimed at mobilising the entire working class, Aboriginal and non-Aboriginal alike, in a common struggle against the profit system and all its political apologists. This involves politically exposing the role played by various Aboriginal figures whose wealth and status is bound up with their loyalty to the major parties and to the agenda and institutions set up by the ruling elite under the aegis of “multiculturalism.” No doubt the individuals concerned regard such analyses as “offensive”, “inflammatory” and “provocative.”

For various self-styled “liberal” figures, who have commented on the Bolt case, no such principled considerations arise. Prominent journalist David Marr, for example, sprang to the defence of the Federal Court, insisting that it was not interfering with free speech, merely “attacking lousy journalism.” Marr’s response demonstrates just how closely his social milieu is wedded to identity politics—and to defending its upper-middle class colleagues in the Aboriginal elite. Marr did admit, however, that he thought the Racial Discrimination Act “set the bar too low” by outlawing political comment that was merely “offensive” rather than “humiliating” or “intimidating.”

The pseudo-left protest organisation Socialist Alternative, however, was unequivocal. Its comment on the Federal Court case, authored by Louise O’Shea, hailed the ruling, insisting that the only issue that mattered was that Bolt was a nasty right-winger, and that his conviction should be celebrated on this basis alone. O’Shea stressed that the judge found that “Bolt unashamedly lied in his column and broke the law”, and concluded: “I hope all those who have been vilified, disparaged and mocked by Andrew Bolt over the years are enjoying his public humiliation. May there be more of it.”

What a devastating self-indictment! The unprincipled and subjective basis of middle-class “radical” politics could not be more clearly articulated. Socialist Alternative revels in narrow-minded Schadenfreude and vengeance, while dismissing any consideration of the serious implications of the court ruling for democratic rights. O’Shea insisted that Bolt “broke the law”—without making any assessment of the content of the law itself. Socialist Alternative is clearly content to outsource to the capitalist state the task of challenging Bolt and his positions. O’Shea further writes about Bolt’s “public humiliation”, when in fact the court judgement has allowed the columnist and his right-wing supporters to engage in some bogus posturing as martyrs for free speech.

The Marxist movement’s opposition to the ruling class and its ideologists—including yellow journalists and provocateurs like Bolt—has nothing in common with the approach taken by Socialist Alternative. Genuine socialists are the most strident and principled defenders of the democratic rights of all. The escalating attacks by governments around the world on democratic rights and legal norms reflect the extreme growth of social inequality, because their unprecedented assault on jobs and living standards cannot be implemented democratically. That is why authoritarian forms of rule are being prepared. It is also why the defence of democratic rights requires the political mobilisation of the entire working class on the basis of a conscious struggle for socialism against the capitalist profit system itself.

I see alot of monuments around Australia, most are responsable for gross acts against humanity, yet they are honoured blindly (for some reason?) where are the monuments to the freedom fighters of the Aboriginal cause? or hte war monuments for the Aboriginals who fought in every war Australia has been in, over 50 Aboriginal men were refused entry back to Australia after the Boer war because of the white Australia policy,and why dont we ever hear about these things? Australia bring new meaning to "whitewash"