A Question of Legitimacy: Australian Government and British Possession

 On the 22nd of August, 1770, Lieutenant James Cook wrote in his Journal:

"Notwithstand[ing] I had in the Name of his Majesty taken posession of several places upon this coast I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took po session of the whole Eastern Coast from … Latitude [38° South] down to this place by the Name of New South Wales together with all the Bays, Harbours Rivers and Islands situate upon the said coast after which we fired three Volleys of small Arms which were Answerd by the like number from the Ship."
(Quoted from https://www.nma.gov.au/defining-moments/resources/cook-claims-australia)

This is arguably (along with other claims of possession by Cook and later Arthur Phillip) the most racist act in Australia's history.  It is racist because it purported that European law and custom automatically overruled the laws and customs of the native people of the land simply because it was the law agreed to among Europeans; and on that basis Europeans could claim possession of any terra nullius (or 'uninhabited land') on the basis of that law, regardless of the fact that the law had not been agreed to by other civilized peoples (such as those of the Middle East, India and China).  It was further racist because in a land clearly inhabited, and in which Cook had met (and shot, and killed) several of the inhabitants, it made the assumption that the land was uninhabited for legal purposes because the inhabitants did not farm in the manner of Europeans.

The claim of possession was not the last racist act directed towards indigenous Australians in Australia's history; and certainly not the most directly vicious.  It was, however, the most consequential.  The founding of English colonies in Australia, and later the Federation of Australia by an Act of the English Parliament derive their legitimacy from the legitimacy of that original claim of possession.  If that claim had no legal force in Australia; then neither did any Act of the English Parliament have legal force in Australia - and if they did not have legal force, neither could they establish legitimate government in Australia.  And if we assert the legitimacy of the Australian government in law; then by that act we logically also assert the legitimacy of that original act of dispossession and with it the racism entailed by it.

I am certain that many will claim that the legitimacy of the Australian government rests on some other foundation than the initial racist act of claiming possession of Australia for the English Crown.  An obvious candidate for an alternative principle is the Jeffersonian claim that "... governments deriv[e] their just powers from the consent of the governed ...".  The problem with such a claim' is that it is not the basis of Australian law.  Rather, Australian law cannot come into effect unless it receives the 'Royal Assent'; ie, the signature of the Queen's representative at State or Federal level.  There was an attempt to correct that flaw in our Constitution in referendum on becoming a Republic in 1999 - but the Australian people rejected it; and it remains the case in Australian law that Australian governments can make laws they have never proposed to the people, and which the majority of the people disagree with - provided they have royal consent.

An alternative ground for legitimacy might be found in Realpolitik - whatever the merits of the initial dispossession, Australia now exists as a functioning society, and that fact alone grants its government and its laws legitimacy.  In practical terms, we are more or less forced to this position.  Whatever the merits, Australians are simply not going to abandon this continent as a whole; and if they did, it would not help the indigenous people - for some other power would immediately seize so wealthy (and effectively empty, in this scenario) a land.  However, that is a constraint only on how we proceed.  If we make it the founding principle of the 'legitimacy' of our government - we have thereby declared that our government is based on the principle of might makes right.  In doing so, we also declare that if some foreign power were to conquer Australia, and make good their possession; then by that fact alone they would have justified their aggression.  We would be declaring, in fact, that not just power, but morality comes from the barrel of a gun.

A third, and more reasonable, suggestion would be to accept the illegitimacy (and immorality) of the original act of dispossession - but argue that it is now history and cannot be altered.  Consequently we must accept the legitimacy of the English Parliament granting Australia a Constitution as a legal fiction; and do our best to ensure our laws are moral and principled going forward.  The problem with this position is its narrow view.  While as a practical matter, we must currently accept the legal fiction of the legitimacy of the act of dispossession; it is not the only legal fiction we have available to use in grounding our society.  While we cannot go back in time and establish a Treaty with the indigenous peoples of Australia; we can establish now a legal framework such as the indigenous peoples would have accepted in a Treaty has a treaty been signed with them; and, with the consent of their descendants, establish that framework in the Constitution - making it the basis of legitimacy of Australian society.  Too me, this is far superior.  If we must have a legal fiction at as the foundation of our law and governance - let it at least be a just legal fiction rather than one that appeals to ultimately immoral principles.

This is an approach I find very desirable.  I want there to be a Treaty with the indigenous peoples of Australia, adopted as a Constitutional Amendment, and made part of our Constitution.  Ideally, it would include a clause making it only possible to alter the language of the Treaty by the consent of the majority of Australian indigenous people in Australia; and ideally, also, it would include a bill of rights.  At this time, however, that is not a practical aspiration.  However, we can alter the laws of Australia (and where necessary, the Constitution) to give the indigenous peoples of Australia the protection for them and their descendants against the tyranny of the majority that a genuine treaty process in the past would have provided.  Which is, of course, the purpose of the Voice to Parliament and Makarrata Process.