Towards treaty and reconciliation

Associate Professor Harry Hobbs is a constitutional and human rights lawyer whose work explores questions of sovereignty and statehood.

He has published numerous works regarding the legal rights of Indigenous Australians, micronations, and secessionism in Australia.

Associate Professor Hobbs recently received a prestigious Discovery Early Career Researcher Award (DECRA). 

What are your areas of expertise?

I am a constitutional and human rights academic lawyer whose work sits at the intersection of law, democracy, and politics. Over the last few years, as Australians have debated whether and how we should recognise Aboriginal and Torres Strait Islander peoples in the Constitution, much of my focus has been on how a First Nations Voice might work, and the legal and political questions surrounding treaty. Like all scholars, I publish this work in academic outlets, but I know that big reforms such as Voice and treaty are only feasible with popular understanding and support. For this reason, I try hard to write in accessible language, formats and for popular audiences, and take every opportunity to discuss these issues on radio and at community events.

A lot of this work concerns the idea of sovereignty. In examining this big concept, I have also explored the phenomenon of people who claim to secede and establish their own country, perhaps in a fight with their local council. Micronations have no basis in law for their existence, but they nevertheless act as if they do: they issue stamps, mint coins, compose national anthems and write thousands of letters to real countries. Why? My work examines what it is about ‘the state’ that grabs attention. It also explores a strange anomaly. In places like the United States and Canada, with a long history of Indigenous treaty-making, it is well understood that Indigenous nations are different from micronations. Indigenous nations have a historical foundation of self-government and continue to possess that right (even if its exercise is constrained); micronations are often the product of an eccentric who is disputing planning regulations. Australian law treats them the same: neither has any right to self-government. My sense is that most Australians think that is wrong. We can agree that one is more legitimate than the other. 

I am also interested in the way Australians understand our political and legal system. The Covid-19 pandemic and the associated public health orders caused significant stress and it is important to assess how our institutions performed. My sense is that the failure of our parliaments to meet their core responsibilities of regular sitting and serving as a forum for debate, has contributed to the growth of people claiming the law (such as the requirement to wear a mask) does not apply to them. My more recent work explores these issues. 

What inspired you to work in this field?

My family. My grandfather Stewart Harris was a journalist who wrote regularly on racial discrimination and Aboriginal land rights in the 1960s and 1970s. He was also a passionate advocate for a treaty. In 1979, along with Dr Nugget Coombes and Judith Wright, he formed the Aboriginal Treaty Committee, which was designed to educate and build awareness among non-Indigenous Australians for the idea of a treaty. A few copies of his book, It’s Coming Yet…An Aboriginal Treaty within Australia between Australians sat in a bookshelf at home and always fascinated me. Stewart passed away when I was only very young, but he was always very present in conversations around the dinner table. Particularly his view that if you have an opportunity to help, you have an obligation to do so. 

I see my work on Indigenous constitutional reform as part of that, but so too my work aimed at helping Australians to understand our political and legal system. As I tell my students, the law is more accessible than ever, but there are still many barriers to entry and understanding. If we have been lucky enough to be taught how it works or to spend time learning ourselves, we have an obligation to help our family, friends and colleagues understand. 

Tell us more about your DECRA project. 

When the British arrived in Australia they chose not to negotiate with the Aboriginal and Torres Strait Islander peoples who had possessed the land for some 60,000 years. They just took it. This was inconsistent with the international law of the time – the international law that the British themselves wrote. This decision has had significant consequences. It means our political and legal system developed from the idea that Aboriginal and Torres Strait Islander peoples had no rights worth respecting. It is impossible to go back to first contact and start again, but over the last few years, governments around Australia have committed to talking treaty with Indigenous Australians. 

This is momentous. However, it will not be simple. Because we have never negotiated treaties before many Australians, including governments, have little familiarity with major elements of treaty. A host of fundamental questions, such as what a treaty might contain or what a proper negotiation process might look like, remain unclear. 

My DECRA project has two parts. First, it will examine modern treaty-making in Canada and the treaty settlement process in New Zealand to understand the historical, political, legal, and institutional factors that promote settlements. Given we are in the very early stages of treaty processes here in Australia, my project could help inform the design of these processes across the country. 

Second, the Constitution divides power between the Commonwealth and the States. When it comes to an Indigenous treaty, there are some things that state governments may negotiate but the federal government may not (and vice versa). It is important then to assess just what content various governments can agree to include in any treaty. Ultimately, the project will identify viable legal and constitutional models of treaty-making for Australia.

What do you hope to achieve through this research? 

It is a simple answer but a big hope. I hope that my research will improve the likelihood that treaty processes in this county will succeed. It could help with the technical and legal aspects of treaty, including the design of institutions and content of negotiations. But it could also help by demystifying the idea, and making clear to all Australians that we should not fear treaty. 

My favourite metaphor is that a treaty is a marriage not a divorce. It is not about division or rejection. It is a coming together of two peoples to create a better relationship. It is an attempt to reach a common understanding about how we can share this land together.

You’ve been a vocal proponent of the proposed Indigenous Voice to Parliament. Why do you think the Voice is important to the treaty process?

The Voice is critical to treaty processes. It is important to remember that a modern treaty process will look very different from a negotiation at first contact or in the early years of colonisation. This is not a story of two very different political communities meeting for the first time and working out how to share the land. After two hundred plus years, the lives of Indigenous and non-Indigenous Australians are inextricably intertwined. Given this, and alongside the development of modern Australia, a treaty negotiated today will be lengthy, technical, and complex. The 1840 Treaty of Waitangi, for example, consists of three articles, but modern treaties in Canada stretch to 300 pages. 

It is not fair to ask a First Nations community to negotiate directly with the federal or a state government. They will not have the resources and legal expertise to ensure a fair agreement. A Voice will help level the playing field, guaranteeing that government acts in accordance with the commitments that it has made.