Unit rationale, description and aim
Sovereignty and autochthony are central to ideas of how civil government has developed in the Westminster system, often neglected in studies of civil society and public law. For a millennium, the concept of the liberal-state – that limits state power by a constitutional commitment to the values of liberty, equal rights and, the will of the people – has ignored the rights of Autochthones, peoples of the soils. Students will explore limits to sovereignty from the Magna Carta 1215 and the Bill of Rights 1688 onwards. Students will explore the disjuncture of rights for colonised Indigenous peoples surrounding the Doctrine of Discovery (1452 to 2023).
In an Australian context, students will examine the legal fiction of "terra nullius” from Cooper v Stuart 1889 through Federation to ideas of modern nationhood. Students will analyse the UK Australia Constitution Act 1900 that excluded Indigenous peoples on the basis of race. Students will apply this knowledge of civil government to Indigenous Australians’ campaigns for full citizenship, freedoms, franchise, civil rights, and payment of equal wages. The unit aims to provide transferable skills, a broad understanding of sovereignty and “of civil government” as they apply to legal claims for Indigenous peoples’ civil rights, liberties and freedoms.
Campus offering
No unit offerings are currently available for this unit.Learning outcomes
To successfully complete this unit you will be able to demonstrate you have achieved the learning outcomes (LO) detailed in the below table.
Each outcome is informed by a number of graduate capabilities (GC) to ensure your work in this, and every unit, is part of a larger goal of graduating from ACU with the attributes of insight, empathy, imagination and impact.
Explore the graduate capabilities.
1. Explain the principles of civil government, inc...
Learning Outcome 01
2. Analyse sovereignty and autochthony in relation...
Learning Outcome 02
3. Interpret Commonwealth powers and colonial stat...
Learning Outcome 03
4. Evaluate how statute and common law have been u...
Learning Outcome 04
Content
Topics will include:
- “Of Civil Government”: begging questions about Indigenous liberty and rights
- Sovereignty and Autochthony
- Federation, the UK Australia Constitution Act 1900 and Indigenous Peoples
- “Protection” Ordinances and Pastoralism: the Equal Wages Case 1965
- Indigenous Australians Campaigns for Civil Rights and Freedoms
- Constitutional Reform 1967, Franchise and Full Citizenship
- Federalism, States and Australian Territories – colonial laws
- Nationhood: Commonwealth power, rights and treaties
- Liberty and Freedoms inferred: Cases of ceremonial and cultural loss
- Race Powers and the Racial Discrimination Act 1975 (Cth): Addressing gaps.
Assessment strategy and rationale
To pass this unit, students must achieve an overall minimum grade of pass (50%). Rubrics and feedback will be utilised to describe the standard of work expected.
Students will be expected to demonstrate learning outcomes through scaffolded oral and written activities. To assure assessment in the age of generative artificial intelligence, demonstrating learning outcomes will be integrated with supervised in-class interactive exercises, oral assessment and Cadmus for written assignments.
Task 1. In a brief verbal in-class presentation, students will articulate their ideas about key concepts of civil government and colonisation relating to Indigenous peoples. This will enable achievement of LO1.
Task 2. In an in-class interactive exercise, students will locate a court case to reflect upon civil concepts relating to Indigenous peoples, such as “terra nullius”, the Constitution, Federation and state powers. Subsequently, students will write a case study contextualising their research with analysis and citations. This will enable achievement of LO2 and LO3.
Task 3. In a research essay, students will reflect upon petitions for statutory changes, litigation and common law to recover Indigenous peoples’ rights. The purpose is to develop an argument based on evidence and consider implications of legal change for Indigenous peoples. This will enable achievement of all learning outcomes.
Overview of assessments
1. Seminar Presentation Students are expect...
1. Seminar Presentation
Students are expected to participate in tutorials, whether in-person or online, recognising that pre-reading materials and preparation for tutorials contribute to quality group engagement and their own learning.
Assessment Method: Presentation - in-person or online (5 minutes, equivalent 800 words).
Students will present verbally to explain a key concept/s in the historical development of Western ideas of civil government, such as liberty, freedoms, sovereignty, autochthony, civil rights and, full citizenship, with a brief analysis of bias in respect of Indigenous peoples.
The purpose is to develop students’ knowledge and comprehension about civil government and Indigenous peoples.
20%
2. Reflective Case Study In an...
2. Reflective Case Study
In an in-class interactive exercise, students will locate a court decision of relevance to Indigenous people to reflect upon how historic legal principles and materials concerning civil government and rights were utilised.
Assessment Method: Reflective Report on a Court Case. (1000 to 1500 words)
In their subsequent written assignment, students will identify issues, undertake legal research, analyse the context and different values utilising a range of sources, and communicate their reflections.
The purpose is to develop personal reflective skills about civil government in the context of different values, beliefs and relevant Indigenous peoples’ standpoint.
30%
3. Research Essay ...
3. Research Essay
Students will synthesise and evaluate how campaigns for statutory changes, litigation and common law have been applied by Indigenous peoples to recover rights and help address gaps confronting civil discrimination.
Assessment Method: Research Essay (1500-2000 words).
The purpose is for students to develop skills that persuade readers of an idea based on evidence, to propose solutions and consider implications and strategies for Indigenous peoples’ civil government.
Students will be expected to analyse a question, locate and reference research, organise their ideas, construct drafts, seek feedback, edit and, finalise citations in support of their argument.
50%
Learning and teaching strategy and rationale
This unit will be taught through lectures, tutorials, original sources, library research, use of audio and visual materials to hear Indigenous voices, presentations and scholarly debate as part of inquiry-based learning. Students will progress from inquiry (asking questions and gathering information) to analysis (breaking down information, identifying patterns, and evaluating evidence) to applied reflection in practical contexts. Their progress will be supported by scaffolding assessments, a structured path to develop their knowledge skills as they progress through the unit to develop their own conclusions. Accessibility and flexibilty in learning will be supported through different modes of delivery.
Lectures with audio and visual materials will provide support and structure for student research and investigation. Tutorials will start with proposing a research question, supported by in-class peer reflections. Students will formulate questions about the topic based on their research. Students will be encouraged to work independently and in small groups to evaluate credibility of the sources and evidence. Educators will faciltitate students as a group to reflect and apply their knowledge skills with a focus on “real world” cases. Students will be asked to critically reflect on their research findings addressing socio-economic inequality and rights of Indigenous peoples in an international context.
Representative texts and references
Resources
Note: Specialist printed materials will be made available free prior to the teaching period.
Legal Particulars
Bill of Rights 1688. In Tony Blackshield, George Williams and Brian F. Fitzgerald, Australian Constiutional Law and Theory: Commentary and Materials (Federation Press, 1966), 48-54.
Magna Carta (The Great Charter) 1225, confirmed 1297. In Tony Blackshield, George Williams and Brian F. Fitzgerald, Australian Constiutional Law and Theory: Commentary and Materials (Federation Press, 1966), 34-39
Commonwealth of Australia Constitution Act 1900 (UK).
Doctrine of Discovery, a series of papal bulls issued in the 15th century: Dum Diversas (1452), Romanus Pontifex (1455), and Inter Caetera (1493), repudiated by the Vatican in 2023. Online access via https://humanrights.ca/story/doctrine-discovery
Ferdinand and Elizabeth, Privileges and Prerogatives Granted by Their Catholic Majesties to Christopher Columbus, 1492, <https://avalon.law.yale.edu/15th_century/colum.asp>.
Representative texts and references
Anthony, Thalia. “Reconciliation and Conciliation: The Irreconcilable Dilemma of the 1965 ‘Equal’ Wage Case for Aboriginal Station Workers” (2007) 93 Labour History 15.
Attwood, B. & Markus, A. (eds) The Struggle for Aboriginal Rights: a documentary history. Sydney: Allen & Unwin, 2020.
Blackshield et al. “Indigenous Peoples and the Question of Sovereignty” in Australian Constitutional Law and Theory. Federation Press, 1996, any edition.
Blackstone. “Title by Occupancy … Prerogative and Forfeiture … Offenses against the Law of Nations … Piracy”, Commentaries on the Laws of England. Oxford: Clarendon, 1765-1769.
Belmessous, Saliha. “The Treaty of Waitangi in historical context” in Mark Hickford and Carwyn Jones, Indigenous Peoples and the State. Routledge, 2019.
Chesterman, John. Civil Rights: How Indigenous Australians Won Formal Equality. 2005. Ch 1
Clark, Martin. “Northern Territory v Griffiths (Deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples”. Opinions on High. Melbourne Law School, 2019. https://blogs.unimelb.edu.au/opinionsonhigh/2019/03/20/griffiths-case-page/
Clarke, Jennifer. "‘Cubillo v Commonwealth’”. In Melbourne University Law Review 25 (2001), 1: 218
Curthoys, A., Genovese, A., and Reilly, A. Rights and Redemption: History, law and Indigenous people. Sydney: UNSW Press, 2008.
Davis, Megan; Brennan, Dean (update). "A Narrative of Exclusion: Indigenous rights in Australia". In Human Rights Defender 7 (2007) 16(1) 16. https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/HRightsDef/2007/7.html
Foley, Gary and Crystal McKinnon, “Civil Rights and Indigenous People”, The Cambridge Legal History of Australia. Cambridge University Press, 2002, 523 – 535
https://doi.org/10.1017/9781108633949.022
Human Rights and Equal Opportunity Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, April 1997, Chapter 13 Grounds for Reparation and Chapter 14 Making Reparation
Larkin, Dani and Harry Hobbs, Dylan Lino and Amy Maguire. “Aboriginal and Torres Strait Islander Peoples, Law Reform and The Return Of The States”. In University of Queensland Law Journal 41(2022), 1: 35-58. DOI: 10.38127/uqlj.v41i1.6353
Locke, John. “Of Conquest”, ch XVI in Second Treatise of Government (1690), 109-120.
Parkinson, Patrick. Tradition and Change in Australian Law. Federation Press, 2013, 5th edition.
Rousseau, Jean-Jacques. “The sovereign … the civil state … Sovereignty is inalienable”. In The Social Contract (1762, trans. Jonathan Bennett 2017) 8-16.
Synot, Eddie and Roshan de Silva-Wijeyeratne, “Constitutional Foundations: The Persistent Myth of Cooper v Stuart” in Nicole Watson and Heather Douglas, Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making. Taylor and Francis Group, 2021.
Raine, M. “ ‘Incremental and cumulative’: Griffiths and the limitations of the Native Title Act 1993 (Cth) in dealing with compensation for cultural loss”. Griffith Law Review 31 ((2022), 2: 151–170. https://doi.org/10.1080/10383441.2022.2073109
Taylor, Russell. “Indigenous Constitutional Recognition: The 1967 Referendum and Today”, Papers on Parliament No. 68
Thornton, Margaret and Trish Luker, “The Wages of Sin: Compensation for Indigenous Workers”. In UNSW Law Journal 32 (2009), 3: 647-672.
Taylor, Alice. “The ‘Constitutional’ Value of the Racial Discrimination Act 1975 (Cth)”. In Sydney Law Review 43 (2021), 4: 519.
Audio and Visual Resources
AIATSIS, The 1967 Referendum, https://aiatsis.gov.au/explore/1967-referendum
Ansara, Martha and Essie Coffey, Alec Morgan. My Survival as an Aboriginal. Ballad Films, 1978, 49,
Daniel Boyd, We call them pirates out here, 2006, oil on canvas, Museum of Contemporary Art Australia, 2006.25. https://www.mca.com.au/collection/artworks/2006.25/
---, Treasure Island Exhibition, 2023, https://www.artgallery.nsw.gov.au/whats-on/exhibitions/daniel-boyd/
Bostock, Gerry and Alec Morgan (producers), Lousy Little Sixpence. Ronin Films, 1983, 54 min
Carmody, Kev and Paul Kelly, From Little Things Big Things Grow, https://www.youtube.com/watch?v=6_ndC07C2qw
Dale, Darren and Rachel Perkins. First Australians, SBS 2008, Episode 1, DVD, Madman Australia
Day of Mourning Protest, 1938, photograph
Edwards, Kutcha. Mrs Edwards. In Circling Time, 2021 https://www.youtube.com/watch?v=59lFJfverK8&t=337s
Jim Everett, One People Sing Freedom. SBS 1988, Video, 50 mins
Lander, Ned and Rachel Perkins, Freedom Ride, Screen Australia, 1993, VHS, 55 min
Lingiari, Vincent. Galarruwuy Yunupingu and Ted Egan. Gurindji Blues. In AIATSIS, Song for the Gurindji, https://aiatsis.gov.au/blog/song-gurindji
May, Phil, His Native Land, Bulletin 1887, cartoon
Peter Nicholson, New Australia Day, 27 January 2012, cartoon
Roach, Archie. Took The Children Away. (30th Anniversary Edition) - Official Video, https://www.youtube.com/watch?v=EA52bupg-BY
----- Warner Music Australia, https://www.youtube.com/watch?v=IL_DBNkkcSE