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Legitimacy of Sovereignty in Australia

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Legitimacy of Sovereignty in Australia

The validity of the autonomous authority and legality of the Australian nation and its

legal infrastructure is an involved and contested subject, weaving together elements of

history, politics, and philosophy. Multiple crucial factors need consideration when examining

this subject matter. A primary factor relates to the issue of the inherent sovereignty of the

Aboriginal and Torres Strait Islander populations. These native communities have a long-

standing pre-eminence in Australia, anchored in their 65,000-year-old ancestral ties to the

land(Langton, 2019). However, their independent authority isn't officially accepted by the

Australian government, triggering a prolonged period of tension and contention.

To delve deeper into this issue, we must also take into account the Western

understanding of sovereignty, a concept shaped by the historical development of ideologies

within Western societies. In a crisp, diverse and democratic society such as Australia,

sovereignty can be viewed as residing within the populace and their various affiliations,

rather than being vested entirely within the parliamentary institution(Poulter, 2016).

However, this interpretation of sovereignty does not fully contemplate the unique history and

circumstances of Aboriginal and Torres Strait Islander communities.

The continuing negotiation of treaties in Australia serves a crucial function in

addressing concerns over sovereignty. By recognizing Indigenous sovereignty via these

treaties, Australia's own status as a sovereign nation can be affirmed and enhanced. However,

the reservation remains when defining Indigenous sovereignty on par with state sovereignty,

drawing potential competition between the two. This method could possibly reinforce a strict,

singular perspective of power within Australian communities, which may impede the journey

towards harmonious governance and reconciliation(Jonas, n.d.).

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The authenticity of the Australian government's authority has continuously been a

point of discussion in the world of political thought. Some individuals maintain the viewpoint

that Britain's initial declaration of sovereignty over Australia is an unalterable "state act" that

stands irrefutable(Patton, 2009). On the other end of the argument, some believe that the

validity of the Australian government is directly linked to how it upholds the principles of

justice, fairness, and equality. This tussle serves as a vivid display of the complex mix of

historical narratives, judicial laws, and ethical perspectives associated with the validity of the

Australian state and its rule of law(Brooke, 2017).Thus, the matter regarding the acceptance

of Australian sovereignty and its judicial composition is a complex one, embedded with

numerous viewpoints and historical nuances. Affirming the sovereignty of Indigenous

Australian and Torres Strait Islander communities is an essential aspect in any discussion

regarding the authenticity of the Australian nation and its legal order. Delving into this topic

requires an informed and sensitive analysis that takes into account the historical wrongs and

intricacies, while simultaneously aspiring for a fair and equitable future for everyone in

Australia(Popic, 2005).

The legality of Australia's autonomy and judicial structure present multifaceted

arguments that several theorists have rigorously delved into. In this context, we'll evaluate the

viewpoints professed by scholars like Carl Schmitt, Aileen Moreton-Robinson, and Thomas

Hobbes regarding the power and legitimacy behind Australia's legal and political

establishments.

The German legal scholar and political thinker, Carl Schmitt, proposed that a state’s

authority lies in its ability to make definitive decisions during exceptional

circumstances(Kiem, 2017). He deemed the state as sovereign when it can decide on the

exception -- a time when the regular legal framework is put on pause. If applied to the context

of Australia, scenarios might include the proclamation of a state of emergency or the

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deployment of military forces to uphold societal order. Nonetheless, Schmitt's theory has

faced considerable backlash for arguably justifying authoritarian rule and the curtailment of

individual freedoms.

Aileen Moreton-Robinson is a respected Aboriginal Australian academic who has

extensively explored the topic of territorial autonomy and the intricate dynamics between

indigenous groups and the Australian government(Motha & Rijswijk, 2016). Moreton-

Robinson asserts that the legitimacy of the Australian government is deeply rooted in the

continuous subjugation and colonization of Indigenous populations and their territories. She

asserts that acts of violence and eviction form the backbone of the Australian state,

employing the judicial system to retain its dominion over Indigenous communities. Moreton-

Robinson's standpoint underscores the unending battle for the acceptance of Indigenous

autonomy and underscores the necessity for an agreement mechanism that acknowledges the

independence of Indigenous groups.

Thomas Hobbes was a British philosopher who posited that the underpinning of a

state's authority is the social contract. In Hobbes' view, individuals residing in a state of

nature find themselves in an unremitting state of conflict, and the only means of eluding this

predicament is to institute a social contract under a sovereign authority. This sovereign

possesses ultimate power to uphold orderliness and safeguard the interests of the citizens.

When applied to the Australian state, Hobbes' theory could suggest that the validity of the

state and its justice system hinges upon those governed giving their consent. Nonetheless,

Hobbes' concept has been the subject of criticism, as it may be employed to validate

authoritarian rule and the stifling of opposition.

Concluding, the legitimacy of Australia's state sovereignty and its justice system is a

complicated matter that has been explored by multiple scholars. The viewpoints of Carl
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Schmitt, Aileen Moreton-Robinson, and Thomas Hobbes illuminate various facets of state

power's basis, like the capacity for decision-making during exceptional times, the persistent

colonization of Aboriginal communities, and the mutual agreement between the state and its

citizens(Prokhovnik, 2015).

Carl Schmitt's sovereignty philosophy hinged on a state's ability to act decisively in

emergency situations, also known as the "state of exception". This viewpoint becomes vitally

important when exploring instances, such as issuing a state of emergency or utilizing military

power to instil and maintain order, within the backdrop of the Australian state. Schmitt's

contention essentially postulates that a state's command rises to its peak when it can identify

and manage within these exceptional circumstances, surpassing the typical legal

structure.Nonetheless, Schmitt's concept isn't devoid of detractors. It has been subjected to

rigorous examination due to its alleged propensity to advocate for autocracy and suppression

of civic freedom. The fear lies in giving the government sweeping powers during turbulent

times, as it may result in misuse of power and the encroachment on private liberties and

freedoms.

Schmitt's views provide significant enlightenment regarding the state's function in

preserving order and managing extraordinary circumstances. This acts as a timely caution of

the precarious equilibrium between state power and personal freedoms, emphasizing the need

for systems to stop unwarranted power accumulation. Schmitt's concept highlights the crucial

role of stringent supervision and responsibility to protect against state authority's possible

abuse when striving for order and security, especially in instances where civil liberties may

be challenged(Rushton, 2020). Therefore, Schmitt's insights are still pertinent for those trying

to understand issues of administration, power, and individual privileges, not just in Australia

but in a wider international framework.

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Aileen Moreton-Robinson's insights illuminate the fundamental elements of

Australia's governance, stressing its power rests on the ongoing settlement of Indigenous

societies and their ancestral territories. She firmly believes that the very presence of Australia

is founded on a past soaked in brutality and usurpation, causing immense suffering amongst

the Indigenous communities. From Moreton-Robinson's viewpoint, the justice system is a

pivotal instrument, maintaining the state's power over Indigenous inhabitants, ensuring their

sustained oppression and marginalization.In this scenario, Moreton-Robinson emphasizes the

continuous fight for Indigenous sovereignty recognition(Byrd, 2020). She maintains that a

treaty process is critical to formally recognize and honor the sovereignty of Indigenous

communities. This idea symbolizes a wider movement calling for fairness, equity, and

remediation for the historical injustices inflicted upon the Indigenous peoples(Straton, 2011).

The perspectives of Moreton-Robinson offer invaluable insights for understanding the

persistent impacts of colonization on the legitimacy of Australian governance and law-

making systems. These perspectives invite rigorous evaluation of the ethical and moral

aspects of a nation that was founded on a past of brutality and dispossession(Muldoon, 2020).

They also underline the immediate necessity for substantive actions toward reconciliation and

justice for the Aboriginal communities in Australia. In the long run, they aspire toward a

future where Aboriginal self-determination is understood and revered, and past injustices are

redressed(Rogers, 2017).

Thomas Hobbes, an influential 17th-century philosopher, posited a sovereignty theory

pivoting on the idea of the social contract. This premise underpins his outlook on the rapport

between a nation and its denizens. Considering the Australian state, one can apply Hobbes'

theory in evaluating the justness of its administrative and judicial systems, given they are

contingent upon the approval of the populace.

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Hobbes hypothesised that people knowingly surrender certain liberties to a ruling

power, devising a societal agreement. This bargain entails that the governing body provides

stability and order, while it received compliance from the populace(Chingola, 2022). This key

notion is modifiable to the contemporary context in Australia, where the administration draws

its power and validity from the tacit permission of its citizens. Thus, this societal agreement

amplifies the value of this approval in maintaining the nation's judicial system and directive

principles.

While Thomas Hobbes' theory boasts considerable merits, it has also sparked an array

of criticism. The primary concern lies in its potential to act as a justification for oppressive

governance and the silencing of opposition. Many critics contend that an authoritarian

construal of Hobbes' concepts could result in the state exercising unrestricted power, thereby

undermining individual liberties and rights. This criticism underlines the fine line that must

be trodden when incorporating Hobbes' theory into contemporary policymaking, stressing the

importance of responsible leadership that respects accountability(Schwartz, 2019).

The social contract premise of Thomas Hobbes' philosophy of sovereignty provides

vital perspectives about the relationship between a nation and its citizens. This concept

emphasizes the importance of agreement as an essential foundation for the state's genuinity

and its legal system. Still, it's critical to weigh and interpret it correctly to prevent its potential

misuse to rationalize autocratic regimes. Grasping and implementing Hobbes' viewpoint can

offer help in navigating the intricacies of contemporary governance, making sure both the

preservation of personal rights and freedoms and the upkeep of order and security(Brenna,

2018).

The intrinsic principle of state sovereignty and its fundamental authority is a common

denominator in these various theories. Though there is a unique perspective coming from
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each of these theorists, they all grapple with the matter of state power.The viewpoint of Carl

Schmitt underlines the crucial function of the state in safeguarding stability and order. He

sheds light on the potential misuse of authority, maintaining the state's sovereignty is vital to

uphold the law's supremacy. In a parallel manner, Thomas Hobbes through his social contract

theory, underscores the need for a robust state to prevent the disarray that arises from the state

of nature. This belief in the imperative role of the state in maintaining law and order and

thwarting anarchy is a common point of emphasis for both Schmitt and Hobbes.On the

contrary, Aileen Moreton-Robinson offers a unique perspective that intersects with Hobbes'

ideas when it comes to examining consent in relation to the legitimacy of the state and its

legal system. Moreton-Robinson, from her Indigenous feminist standpoint, places great

emphasis on the acknowledgement of consent from all parties involved in the governance of

the state(Spiers, 2016). This aligns closely with Hobbes' concept of a social contract, whereby

individuals willingly consent to the authority of the state in order to ensure their collective

security.Nonetheless, these perspectives diverge in terms of their emphases and contextual

considerations. Schmitt and Hobbes prioritize the role of the state in maintaining order, even

if it means employing a certain degree of authoritarianism. In contrast, Moreton-Robinson

underscores the significance of inclusivity, particularly for Indigenous communities, in the

establishment of the state's legitimacy. She introduces a critical element of diversity and

consent that is somewhat absent in the theories of Schmitt and Hobbes. The insights offered

by Carl Schmitt, Aileen Moreton-Robinson, and Thomas Hobbes shed valuable light on the

legitimacy of the Australian state and its legal system.

The argument about sovereignty offered by Schmitt's concept is firmly grounded in

the thought that the state's decision-making power drives during periods of exception; this is

diametrically opposed to Moreton-Robinson's perspective, highlighting the continuous effects

of colonization on the independence of Indigenous people. The understanding of sovereignty

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for Schmitt is centered around the belief that significant decisions, especially during times of

upheaval, lie in the hands of the state. This often equates to the temporary halting of existing

legal standards and a pronounced declaration of power, potentially leading to a state of

exception. Although Schmitt’s theory has its merits, it has received considerable backlash for

its perceived propensity to rationalize authoritarian regimes and the halting of civil liberties

in the name of preservation of state's sovereignty.

Moreton-Robinson, on the other hand, provides an insight into the lasting impact of

colonization, specifically with regards to Indigenous sovereignty. Her perspective

underscores the relentless struggle for the acknowledgement of Indigenous' sovereignty

within the backdrop of historical misappropriation and marginalization. According to

Moreton-Robinson, Indigenous communities continue to wrestle with the aftermath of

colonial rule, underscoring the importance of recognition and mitigation of these issues

through a more fair-minded approach.

Looking deeper into the social contract theory as suggested by Thomas Hobbes, we

see an apparent paradox. Hobbes' idea of sovereignty is securely established in a reciprocal

pact between the political authority and its subjects. The social contract provides the base

from which the government derives its legitimacy, guaranteeing societal stability and

organization. This theory is in stark contrast to Moreton-Robinson's viewpoint, which

underlines the constant battle for acknowledgement of Indigenous sovereignty. Herein, the

social contract emerges as an idea from which Indigenous groups have not completely

partaken or realized any advantages.

In the end, these paradoxes compel us to contemplate the intricacies and obstacles

linked to the concept of sovereignty. Philosophies such as Schmitt's and Hobbes' have

significantly influenced our comprehension of governmental power, while Moreton-

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Robinson's ideology draws focus to the demand for a broader and fair approach, explicitly

acknowledging and respecting the sovereignty of Indigenous communities. Discussions on

the topic of sovereignty persist to advance as societies wrestle with these incongruities and

the ethical obligations they introduce.

The understanding provided by Aileen Moreton-Robinson offers an integral view to

explore the ongoing colonization of Indigenous communities and their territories,

highlighting a significant modern legal issue in Australia: acknowledging Indigenous

autonomy. This multifaceted problem is anchored in Moreton-Robinson's convincing claim

that the birth of the Australian state is intrinsically tied to a history tainted by brutality and

dispossession. She put forth that the legal system is not just a tool for justice but also a modus

operandi that has been traditionally used to maintain the state's supremacy over Indigenous

groups.

Moreton-Robinson's compelling narrative emphasizes the oppressive history of

Indigenous peoples in Australia, portraying it in a distressing light. It draws attention to the

plundering of their lands, their social exclusion, and the unravelling of their cultural

identities. These acts of violation have left long-lasting wounds that remain visible within

Indigenous societies today.

Perceiving the freedom of Native people group is a urgent step towards tending to the

enduring effects of our pioneer past. By avowing their inborn self-administration and self-

assurance, we enable the Australian government, yet additionally its residents, to patch the

authentic wrongs that have defaced our set of experiences. This reaches out past shallow

affirmations, to a firmly established change of thought, affirming that Native clans are the

legitimate overseers of their familial terrains, culture, and future. To enhance and respect the

voices of Native social orders and to guarantee a fair, flourishing future for all, Australia
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should confront its pilgrim history and endeavour towards a general public that praises

variety and solidarity. One specific legal issue prevalent in Australia today, pertaining to the

acknowledgement of Indigenous sovereignty, revolves around the process of treaty-making.

This process serves to recognize and affirm the sovereignty of Indigenous communities and

sets up a framework for negotiating agreements between these communities and the state of

Australia. From Moreton-Robinson's perspective, it’s vital to have a treaty process that

validates Indigenous sovereignty and addresses the lasting effects of colonisation on their

lands and societies. By accepting and upholding Indigenous sovereignty, the treaty process is

positioned to redress the historical and ongoing injustices encountered by Indigenous

communities, establishing a relationship with the Australian state that is marked by justice

and equality.

In Conclusion, the intellectual outlook of Carl Schmitt, Aileen Moreton-Robinson,

and Thomas Hobbes offer multiple dimensions on several facets of the legitimacy of

Australia's governance and its legal infrastructure. The exploration of their varied views

unveils the intricate and contentious nature that defines this complex subject matter.Moreton-

Robinson's viewpoint particularly stands as a profound interpretation within the context of

current colonization and the legal challenges Australia grapples with. Her deeply insightful

analysis emphasises the long-standing historical injustices that have been inflicted upon

Indigenous communities and their territories. Moreton-Robinson's emphatic advocacy for

acknowledging Indigenous sovereignty surfaces as a potential impetus to redress these long-

standing injustices.Taking steps to include Indigenous sovereignty in treaty negotiations

offers a hopeful solution to rectify the longstanding and ongoing hardships experienced by

Indigenous societies. Through endorsing Indigenous independence and control, Australia has

the opportunity to progress towards a balanced, fair, and peaceful co-existence with
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Indigenous communities. It's a recognition that extends further than mere symbolism and

signifies a deep-seated pledge to rectify the wrongdoings in history.

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