Read the question

I have some experience at setting assessment tasks and grading the resulting answers. One of the most common errors students (and everyone else) commit is not reading the question carefully. Another error that everyone commits is providing the correct answer to a different question.

As loathe as I am to support the ANU, this is what has happened in this situation:

One of the modules, on self-determination and autonomy, deals with the issue of a treaty and requires candidates to take a quiz to test their knowledge. They are asked to address the statement: “Legally, we cannot have a modern treaty process in Australia”, with the correct answer being “False”. Those who respond “True” are required to try again in order to progress through the quiz. The exercise, according to critics, fails to acknowledge that the legality of such a treaty — specifically whether a country can sign a treaty with itself or its own people — is widely contested.

I haven’t done this particular module – no doubt I will soon. But I have done lots of similar type modules. Very often the assessment requires a 100% pass mark. So there is nothing sinister in staff having to repeat the assessment if they got the answer to that question wrong.

The correct answer to the question is indeed, “False”. Whether or not a treaty process is controversial or contested is a political question, not a legal question.  True – there are so many political judges around that the distinction between the law  and politics has become blurred, but nonetheless there is a distinction between the two ideas. In fact, that is one of the finest notions in western civilisation.

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45 Responses to Read the question

  1. flyingduk

    I had a similar issue recently when I was forced to do SA Health’s mandatory ‘Aboriginal Cultural Awareness’ online training. I honestly answered all the test questions, for example ticking as correct the box stating ‘Any past abuses were sad but the perpetrators are now gone and I am not responsible for the consequences’. For some reason, I only scored 9% ‘correct’ on the test.

    On another occasion, I was told that ticking ‘true’ to ‘child abuse is more common amongst communities with lower socio-economic status’ was the wrong answer because ‘child abuse can occur at any level of society’ (which isn’t what the question asked).

  2. pbw

    As loathe as I am to support the ANU, this is what has happened in this situation:

    Bravo, Sinc.

  3. struth

    Next step for you was what, Flyingduk?

  4. Lordazrael

    Incorrect. There is and has never been an aboriginal nation with whom a treaty could be signed as was the case with the Maori. That is a legal issue we covered in first year introduction to law at qut back in 1992.

  5. Rafe Champion

    Good call Sinc.
    Yes Flyingduk, what next?
    Re the prevalence of abuse, we had the same situation with survey data on domestic violence collected in the NSW Dept of Health circa 1980. The Department had been recently converted from a Commission with a buffer zone of Commissioners between the Minister and the organization to a Department with a politically appointed Secretary (later Director General) driving political agendas to the point where grade 6 officers in research and planning were considering the agenda as they processed data.
    We had data showing a clear relationship between class and the prevalence of violence but because there were cases in rich suburbs someone up above tried to get my manager to write the report to eliminate that distinction. He was a very principled person and I think he had his way. Actually there was a case years later where he was almost sacked for a similar stand but mercifully someone on near the top protected him.

  6. Dr Fred Lenin

    If we go along and agree that Australia was “invaded” Ibeleive that would nagate native title and you don’t make treaties with conquered people all problems solved .

  7. Dr Fred Lenin

    If we go along and agree with the communists that Australia was “invaded” and therefore conquered , that would negate native title , and you don’t make treaties with conquered people , all problems solved .

  8. Tim Neilson

    Lordazrael
    #2755429, posted on July 5, 2018 at 11:44 am

    That is indeed the real issue.

    Even if in the past there had been indigenous “nations” on a micro scale (which might be at least plausible) the vast majority of indigenous Australians – perhaps all – no longer belong to any community which could be even remotely analogised to such a “nation”.

    So while Sinc’s general assertions are true, on the specifics he’s wrong. Legally we could do only a bogus Potemkin pseudo-treaty.

  9. stackja

    Inventive, agile, innovative lawyers/judges.

  10. Leo G

    What question?
    Is “address the statement” synonymous with “answer the question”.

  11. Indigenous subject “academics” push a ridiculous idea that there is a singular “Aboiriginal estate”.

    There isn’t. A Warlpiri man has as much in common with a Kamilaroi man as does Guiseppe the barista in Melbourne has to do with Paddy the bartender in Penrith.

  12. Roger

    “Legally, we cannot have a modern treaty process in Australia”

    A treaty is an agreement ratified by two or more sovereign entities, i.e. nations or international organisations, enforceable by international law.

    Legally, we cannot have such a modern treaty process between Australian citizens and an Australian government. To do so raises questions about sovereignty that were long ago settled. Do we really want to go there?

  13. John Brumble

    “Do we really want to go there?”

    Is that a trick question? Of course they want to go there.

  14. Roger

    Is that a trick question? Of course they want to go there.

    But do the majority of Australians?

  15. Legally, we cannot have such a modern treaty process between Australian citizens and an Australian government. To do so raises questions about sovereignty that were long ago settled. Do we really want to go there?

    Maybe we should excise a good chunk off the NT,* Victoria, SA and Tasmania.

    *Actually serious about the NT.

  16. Snoopy

    A treaty is a contract, yes? I’m going to enter a contract with myself to gift me $500,000 per year.

  17. Sinclair Davidson

    To do so raises questions about sovereignty that were long ago settled.

    Settled by whom?

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

  18. Snoopy

    Maybe we should excise a good chunk off the NT,* Victoria, SA and Tasmania.

    All the better for illegal immigration.

  19. Snoopy

    When the ANC confiscates white-owned farms and transfers them to Africans, how much land will Coloureds receive?

  20. calli

    What question?
    Is “address the statement” synonymous with “answer the question”.

    In answer to your question – no.

    🙂

    Although there is an implied question – Is this statement True or False? if there are boxes there to tick.

  21. H B Bear

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    All 500+ clans?

  22. struth

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    Holy shit.

  23. Tim Neilson

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    How is it a “treaty”?

    As has been pointed out above, a treaty is an agreement, with ramifications under international law, between two sovereign nations.

    The states aren’t sovereign nations (and never were). The idea that any group of indigenous people in Australia today is a sovereign nation is wishful thinking by social engineers.

    And, as pointed out above, the idea of a “treaty” between a nation and a group of its own citizens simply doesn’t make sense.

    That’s why the correct answer to ANU’s question, which began with “Legally,…”, is “true”.

    If the question had been whether some other sort of agreement was “legally” impossible, the answer would probably be “false”. But there would even in that case be issues about who entered the agreement on behalf of whom, who was bound by it who could enforce it etc, which might well mean that when it is actually determined precisely what is supposed to happen it will be found to be impossible.

  24. Zulu Kilo Two Alpha

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    Having seen the legal dogfight that erupted when the Liberal Government of Western Australia attempted to negotiate a “final payout” with the Noongar people, I would beg leave to disagree.

  25. Winston

    If there’s to be a treaty between Australians of aboriginal ancestry and those who are not, how are we going to work out who’s in each group? Perhaps everyone should have to take some sort of DNA test, and those who are in the wrong group wear some sort of token, such as a yellow star, so we all know exactly who’s got the treaty with who.

    I look forward to my children’s future, where instead of having any notion of a divisive idea, such as singing the National Anthem together, schools can line all the formerly equal kids up into ‘Invader Aliens’ and ‘Noble Custodians of the Land’ groups at each end of the courtyard, and have one group Welcome to Country the other.

    What could possibly go wrong?

  26. Sinclair Davidson
    #2755542, posted on July 5, 2018 at 1:17 pm
    To do so raises questions about sovereignty that were long ago settled.

    Settled by whom?

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    The plenary power of each State is constrained by races power held entirely by the Commonwealth and the Federal power over treaties and inconsistency provisions.

    If you did not call it a treaty and did not declare excision from the Commonwealth…but it would not be a “treaty” in the proper sense.

    Any treaty from the outset seems like a bizarre legal fiction. Aborigines were citizens before and after 1986; terra nullius was invalidated in 1992 and treaties are made under the external affairs power.

    As for territories? That’s basically Federal plenary power.

    There might be some claim by abusing the external affairs power and incorporating treaty into domestic law, such as the ICESR etc.

    Who the hell knows anymore? Callinan was the last decent High Court judge. Keifel’s conservatism has been beaten out of her. Maybe French’s example of rolling over for everything Parliament or the executive wanted conditioned her.

  27. BorisG

    Horrible question for a test, mainly because legal opinion on this topic is divided.

    Wording is also convoluted.

  28. flyingduk

    Next step for you was what, Flyingduk?

    Next step was to tell the auditors to bugger off…

  29. C.L

    Whether or not a treaty process is controversial or contested is a political question, not a legal question.

    You would first have to prove this argument. It is an undecided mystery.
    As it stands, it is no less correct to argue that a “treaty” between people (in fact there is not a “between” or two distinct peoples in play) is indeed impossible.
    Ergo: the university is adjudging that answer “false” for ideological reasons.

  30. Blair

    ““Legally, we cannot have a modern treaty process in Australia”
    I guess there is presently no law banning the establishment of a treaty between descendants of Aboriginal and Torres Strait Islanders who were living in Australia at the time of settlement in 1788. And the political process could result in the enacting of such a law.

  31. BorisG

    Whether or not a treaty process is controversial or contested is a political question, not a legal question.

    That is no more than an opinion.

  32. Tim Neilson

    I guess there is presently no law banning the establishment of a treaty between descendants of Aboriginal and Torres Strait Islanders who were living in Australia at the time of settlement in 1788.

    There’s no law banning 2+2 from equalling 5 either.

    The point is that the question asked whether “legally” it was or was not possible for there to be a “treaty” [which has a legal meaning] process.
    And the answer is “not possible”.
    We could, at least prima facie in theory, have some sort of agreement or other supposedly legally valid arrangement. But not, “legally”, a “treaty”.

  33. David Brewer

    “Legally, we cannot have a modern treaty process in Australia”

    What does “modern” mean? What is a “treaty process” as opposed to a treaty? And what exactly does “Legally, we cannot” signify: does it mean that the process would be illegal, and punishable, or just without legal effect, or that the process, or the resulting treaty, would be open to legal challenge, or what exactly?
    Who’s we – all Australians, or Aboriginals on one side and non-Aboriginals on the other, or the States on the other side, or the Commonwealth on the other side?

    Asking True or False to such a statement is a joke. All it means is that the students have been given an answer to this question during the course and are expected to regurgitate it for a food pellet.

    Still, excellent trolling Sync. You have got us going again. I love this place.

  34. Leo G

    I don’t see any impediment to a treaty between the states and Aboriginal peoples

    Possibly the distinction between Aboriginal and aboriginal.

  35. struth

    A treaty is between two states or “nations”

    A treaty between a state and the humans in it is called a law.

    There is no nation if aboriginals.
    There never was and never will be.

  36. I understand you point Sinc, between the legal and the political, however I believe the answer could still be true.
    Contracts / treaties can still be legally invalid from the getgo.
    For example a contract to sell land can be legally invalid immaterial of how much is offered or what the specific conditions are, if the vendor doesn’t actually own the said land.

  37. Squirrel

    “One of the most common errors students (and everyone else) commit is not reading the question carefully. Another error that everyone commits is providing the correct answer to a different question.”

    These students are clearly set for a career in public life and/or public relations, particularly if their sentences start with the words “So what we know…..”.

  38. Confused Old Misfit

    David Brewer
    #2755671, posted on July 5, 2018 at 4:22 pm
    +10!

  39. Macspee

    What is a “modern treaty process”?

  40. Bec J

    Sinc – the answer to the legal question is no putting aside the political issues. There is a basic question of authority to sign the treaty on behalf of aboriginal people. Who gets to sign it and from whence does that person derive their authority to sign? Legally no one can sign a document on behalf of another person without requisite authority (POA, statutory authority to execute on behalf of companies etc). The next issue is precisely whom is entering into the contract. Who is going to delegate authority to sign? Every aboriginal in Australia currently living and still to be born? How are those people going to provide their authority in absence of belonging to a sovereign state?

  41. Nerblnob

    Australians often think Australia is “behind” the rest of the world but they are leading the charge by a good length in the race to abolish the distinction between opinion and fact.

    re: Treaty
    Who is aboriginal? How proved?

    I don’t see any impediment to a treaty between the states and Aboriginal peoples.

    The signatories will be the same self-appointed activists calling themselves “community leaders” that governments, police and social workers go scurrying after for approval already.

  42. Rob MW

    “Legally, we cannot have a modern treaty process in Australia”, with the correct answer being “False”. Those who respond “True” are required to try again in order to progress through the quiz.

    I’ll sit on the fence. I would say the correct answer is neither false or true. My reason:

    COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 75 Original jurisdiction of High Court

    COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 75
    Original jurisdiction of High Court
    In all matters:

    (i) arising under any treaty;

    (ii) affecting consuls or other representatives of other countries;

    (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

    (iv) between States, or between residents of different States, or between a State and a resident of another State;

    (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

    the High Court shall have original jurisdiction.

  43. Sinclair Davidson

    Bec – I hear what your saying but doesn’t seem to be insurmountable. This is exactly the problem with every treaty ever signed. Never mind treaties, this is exactly the problem with every EBA ever signed.

    Edward – yes but too complicated for a stock standard training course in the very basics.

    Boris – completely agree. The people who put the assessments together for these training courses are appalling. But that is the eternal problem with unis – they don’t take the advice of the actual professionals that they employ.

  44. Rococo Liberal

    Sinc is correct. There is no legal impediment to the Australian government entering into a ”treaty” with the aborigines. It can use the race power in the Constitution.
    However, the ”treaty” will not be a treaty in the ordinary sense.
    However, there is no Australian law that defines what a treaty is. It therefore takes its ordinary meaning, which can be changed by changing usage or government fiat
    It’s like calling two blokes married. Of course they aren’t ”married” in ordinary language, only in poof-speak and government fiat. That’s why we have to talk about ”gay marriage”.

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