As the Uluru statement was deliberated last month, I was giving the keynote address to Bond University's law school conference "The law and politics of control and power". When acknowledging the traditional owners of the land on which we met, I emphasised the acknowledgement of country as an important statement of reconciliation, placing attention on the historic and continuing imbalance of power between Indigenous Australians and those who arrived after. It should underpin all we do, if we are concerned with questions of law and politics and the proper limits of those who exercise power.
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My presentation on "power, control and citizenship" examined how citizenship in Australia has evolved. In 1901, when propertied, white, male "Australians" – those bestowed with formal, active, citizenship rights – came together to write the constitution, there was a democratic element to it; it's known as the "people's convention". That women and Indigenous Australians were not part of the people underlines an imbalance of power from the nation's inception.
This is not to discount the voice of the women who were campaigning for the vote and who ensured that section 41 of the constitution guaranteed those who already had the right to vote in the colonies would be able to vote in federal elections. This included Indigenous and white women in South Australia who had the vote at that time and, by the time of Federation, white women in Western Australia, too. Indigenous South Australian women would later lose their right to vote when the 1902 Electoral Act, which introduced the franchise for women in federal elections, specifically excluded Indigenous people. The beliefs around people's equality, or lack of it, influenced the balance of power within society at that time. It wasn't until 1962 that Indigenous Australians' right to vote was passed into the Electoral Act.
Formal citizenship status, which Indigenous Australians had by their birth in Australia, did not mean they had substantive citizenship rights. The 1967 referendum did not correct formal citizenship, which indigenous Australians held, but, importantly, as the Uluru statement identified, led them to being counted.
The other aspect of identity that influenced the compact of membership in 1901 was the male white drafters seeing themselves primarily as British subjects. They did not seek to break their ties with empire at Federation; they sought a compact that refigured the exercise of power between a central governing body and the continuing colonies. They wanted to bolster their collective power to exclude immigrants (including non-white British subjects) and to create a uniformity of approach to questions of interstate trade. Ultimately, this led to the lack of a formal legal concept of Australian citizenship. Australians were all British subjects until the introduction of the Australian Citizenship Act 1948 – and, when that was introduced, it still sat alongside British subject status.
When Australians solely became Australian citizens in 1987 and were no longer British subjects, it represented an important shift in an Australian conception of sovereignty. Being a "subject" is just that – the individual is subject to the power of the Crown or the state. While subjects gained some benefits (although not uniformly, as Indigenous Australians' experience affirms), there was also a fundamental inequality in the relationship.
Becoming solely Australian citizens signified a fundamental move where the people become sovereign. While Australia still had a queen, a queen of Australia, it realigned the concept of power between the executive branch of government – those governing us – and the people. Citizenship is about an equality between those exercising the power and those subject to that power. It is fundamentally part of the concept that those people exercising power are subject to the law in the same way that the citizenry is.
But what does subject to the law mean? As Kristen Rundle explains, legal philosopher Lon Fuller is a guide here, noting "legal power over subjects is something to be distinguished from mere power over subjects". Moreover, "Fuller's legal subject ... is not just an individual possessed of choices, or a planner with regard to her own interests, but akin to the Greek conception of the citizen, is envisaged as an active participant in the legal order."
Rundle continues: "perhaps the most important way in which the legal subject's agency becomes visible to us, and through which we also come to appreciate the centrality of her status ... lies in the clear message ... about how the possibility of law depends on its acceptance by the subject".
The Uluru Statement From the Heart is an inspirational call to all Australians – "In 1967 we were counted, in 2017 we seek to be heard." It is Indigenous Australia's call to move from formal Australian citizen status to substantive Australian citizens – active citizens – to true acceptance of their rightful place in our nation. This is a striking and affirming message for all of us. Its implementation is not only constitutionally sound but affirming of our collective move from subject to citizen.
Kim Rubenstein is a law professor and public policy fellow at the Australian National University.
