Site navigation

Change font size: SmallerLargerReload

About the Australian Human Rights Commission navigation

Protecting the human rights of Indigenous people and communities

The Hon Catherine Branson QC
President, Australian Human Rights Commission

National Indigenous Legal Conference, Adelaide, 25 September 2009

1 Introduction

I would like to acknowledge the Kaurna peoples, the traditional owners of the land on which we meet today, and pay my respects to their elders past and present.

Australia’s human rights protection is inadequate

During the recent National Human Rights Consultation the Australian Human Rights Commission heard even more powerfully the message that it had heard many times before: Australians care about their fundamental human rights and think that there should be better protection of these rights.

Australia’s strong traditions of liberal democracy, an independent judiciary and a robust media have been sufficient to protect the rights and freedoms of most people in Australia, most of the time. However, not all people in Australia can be confident of enjoying this protection in respect of all aspects of their lives all of the time.

Aboriginal and Torres Strait Islander peoples in Australia are particularly vulnerable to breaches of their rights. When compared with Australians generally, they continue to enjoy a substantially lower quality of life in relation to their health, education, housing, land, and they have a higher engagement with the criminal justice system, child protection systems and welfare.

In the Commission’s view, human rights are not sufficiently protected and promoted in Australia at present. Many of the international human rights instruments that Australia has promised to uphold are not reflected in Australian law. Importantly,

Aboriginal and Torres Strait Islander peoples live with the consequences of this inadequacy everyday.

Violations of their human rights are not just features of our history. Australia’s main instrument for the prevention of racial discrimination, the Racial Discrimination Act 1975 (Cth), is currently suspended in relation to the Northern Territory Intervention measures and welfare quarantining trials for Aboriginal and Torres Strait Islander peoples in Queensland.[1]

The need for change has been identified on numerous occasions over the past decade, including by United Nations human rights committees. To give just one example, the UN Committee on the Elimination of Racial Discrimination has expressed concern ‘over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories’.[2]

It is timely to consider an agenda to ensure adequate protection of the human rights of Aboriginal and Torres Strait Islander peoples into the future.

As you know, the federal government recently completed its National Consultation on Human Rights and we are now awaiting the release of the final report of the consultation committee.

The Consultation provided the first ever Australia-wide opportunity to talk about protecting and promoting human rights and, I am confident, will prove to have been a critical first step in moving towards enhanced human rights protections for all people in Australia.

The government will soon be considering the recommendations of the National Consultation on Human Rights and what it should do to improve the rights of all Australians.

And, importantly so far as the subject of this address is concerned, the government has also been presented with the report of the independent Steering Committee which was tasked with conducting consultations for a National Representative Body for Aboriginal and Torres Strait Islander peoples.

Additionally, not so long ago, the Prime Minister raised the possibility of constitutional reform to recognise Aboriginal and Torres Strait Islander peoples.

What should we hope for from these initiatives?

I believe that there are six main areas where reform is needed to ensure full protection of the rights of Aboriginal and Torres Strait Islander peoples and to bring Australia’s human rights system into line with our international legal obligations.

This may sound like an ambitious wish list. But I believe that each of these measures is achievable and is also essential if we are to create meaningful progress towards ending the disadvantage currently faced by Aboriginal and Torres Strait Islander peoples.

2 A national Human Rights Act

In 2009, Australia remains the only democratic country in the world without a national bill of rights or charter of rights in some form.

We have not implemented in domestic legislation many of the international legal obligations that we have assumed by ratifying international human rights treaties. 

In our submission to the National Consultation on Human Rights, the Commission recommended that the government adopt a Human Rights Act that is comprehensive in its scope. We recommended an Act which:

We also believe that an Australian Human Rights Act should protect both civil and political, and economic, social and cultural rights. Because of the overwhelming level of economic and social disadvantage faced by some Aboriginal and Torres Strait Islander peoples, as well as other vulnerable groups in Australia, it is important that a Human Rights Act does not ignore economic and social rights (such as the rights to health, education and housing).

A Human Rights Act could also contain specific protections for Aboriginal and Torres Strait Islander peoples and other marginalised groups, such as people with disability. Specific rights protections for Aboriginal and Torres Strait Islander peoples might include recognition of relationship to land; preservation of language and rights to participation.

The Commission recommends that special effort should be made to ensure that Aboriginal and Torres Strait Islander peoples, and members of other marginalised groups, are full and effective participants in the development of a Human Rights Act.

3 Implementation of the UN Declaration on the Rights of Indigenous Peoples

The passage of the UN Declaration on the Rights of Indigenous Peoples[3] through the UN General Assembly in September 2007 was a significant moment for Indigenous rights protection at the international level.

The Declaration is a comprehensive standard on human rights for Indigenous Peoples. It outlines a set of principles concerning equality, non-discrimination, partnership, consultation and cooperation between Indigenous peoples and governments.

The Declaration does not ‘create’ new rights. Rather, it elaborates existing human rights as they apply to Indigenous peoples. It affirms that:

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

At the time of its passage, Australia was one of only four countries to vote against the Declaration in the UN General Assembly.

However, in April this year, the new federal government made a formal statement of commitment to the Declaration.[4]

The statement makes clear to the international community and to all Australians that the government wishes to take genuine steps towards rebuilding the nation’s relationship with Aboriginal and Torres Strait Islander peoples, in good faith and based on principles of partnership and mutual respect.

Of course, the statement of support is only the first step. The Declaration has considerable potential to enhance protection of the rights of Aboriginal and Torres Strait Islander peoples in Australia. But its success will depend on how it is used. The statement of support must be supplemented by further steps to implement the Declaration domestically.

The government should support the use of the Declaration as a framework for decision-making and as a tool to guide reform of Australian human rights protection mechanisms.

Specifically, the government should:

Indigenous organisations should also be encouraged to ‘adopt’ the Declaration, and use it as a framework for engagement and partnership with governments and third parties. Through building up patterns of consistent usage, standards such as free, prior and informed consent will, over time, be built into ordinary protocols for engagement with Aboriginal and Torres Strait Islander communities, whether for land or development initiatives, or for other negotiations on policy decisions that affect Indigenous rights.

4 Constitutional reform to recognise Indigenous peoples and guarantee equality

The third important step for improving the protection of the rights of Aboriginal and Torres Strait Islander peoples lies in amending our Constitution.

As you will be aware, Australia’s Constitution contains no recognition of the unique place of Aboriginal and Torres Strait Islander peoples in our nation. This is perhaps not surprising given the historic context in which the Constitution was drafted. However, the times and prevailing attitudes have changed.

The Constitution also permits the Parliament to make laws that discriminate against Aboriginal and Torres Strait Islander peoples on the basis of race. While the success of the 1967 referendum and deletion of the words ‘other than the aboriginal people of any state’ gave the federal parliament the power to make laws for Aboriginal people, the resulting amendment to the Constitution did not confer a responsibility upon the Parliament to ensure that any laws passed under the section would be for the benefit of Aboriginal people or otherwise ensure their right to equal protection under the law.

Furthermore, section 25 of the Constitution provides that, for the purposes of determining the composition of the House of Representatives:

... if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

The section recognises that states may exclude voters on racial lines. As the Council for Aboriginal Reconciliation has stated, ‘[s]uch a provision is inappropriate for any democratic nation, particularly one whose people come from many different backgrounds’.[5] The 1988 Constitutional Commission described section 25 as ‘odious’ and recommended that it be repealed.[6]

The Commission agrees that a constitutional provision that contemplates denial of the right to vote on the basis of race has no place in an inclusive, multicultural Australia.

However, even if section 25 is removed, Parliament could still introduce laws that discriminate on the basis of race. Neither a statutory Human Rights Act, nor other equality legislation could prevent Parliament from doing this. This was demonstrated by the overriding of the operation of the Racial Discrimination Act by the Northern Territory Emergency Response legislation.

Therefore, I believe that the removal of section 25 should be accompanied by the insertion of a clause to guarantee racial equality and to prohibit racial discrimination.

Constitutional protection of racial equality would prevent legislative protections against racial discrimination from being overridden or suspended by Parliament. It would mean that Parliament would not have the power to introduce laws that discriminate on racial grounds.

Nearly all Commonwealth countries have entrenched equality and non-discrimination clauses in their Constitutions, including Canada, Fiji, India, Malaysia, New Zealand, Republic of South Africa and the United Kingdom.

Of course, there is no reason in principle why constitutional protection of equality should be limited to the grounds of race. And the Australian Human Rights Commission has recommended that the government instigate a national dialogue about whether the Australian Constitution should include a general guarantee of the right to equality (that is, to protect the right to equality for all people in Australia, not just members of different racial groups).

This would require extensive community consultation and engagement in order to build the understanding and awareness necessary before a proposal to amend the Constitution in this way could succeed at a referendum. Broad community consensus on a number of complex questions will need to be achieved before a proposal for constitutional protection of equality can usefully be put to the Australian people.

Let me turn now to the issue of a preamble.

A proposal for a new preamble to the Constitution was put to a referendum in November 1999. No state or territory recorded a majority vote in favour of the proposal, with only 39.34% of the total Australian population voting in favour.

Part of the reason for the failure of this proposal was poor drafting and a poor consultation process. Many Australians who support recognition of Indigenous peoples in the preamble voted against the proposal because of dissatisfaction with the language used.

A lesson from this failed attempt is that there must be extensive, genuine engagement with Aboriginal and Torres Strait Islander peoples and the broader Australian community to determine the wording of any proposed preamble. A failure to do this is likely to undermine community support for constitutional change.

A new preamble would not have direct legal effect or give rise to substantive rights or obligations. But there is symbolic importance in recognising the rights and unique status of Aboriginal and Torres Strait Islander peoples in the preamble to the Constitution. It would go some way towards redressing the historical exclusion of Indigenous peoples from Australia’s foundational documents and its sense of national identity.

Last year, the Prime Minister Kevin Rudd raised the possibility of starting a process for moving towards constitutional change. The Commission has urged the government to act in this regard and begin an inclusive and consultative process for recognising the special position of Aboriginal and Torres Strait Islander peoples in the preamble to the Constitution.

Of course, changing the Constitution is not easy. The political difficulties involved in holding a successful referendum have defeated many attempts for change.

However, it is not impossible. It has been done before. Indeed, the 1967 referendum was the most successful referendum ever held.

Constitutional change is important to both the appropriate recognition of Aboriginal and Torres Strait Islander peoples and to the adequate protection of their human rights.

5 National Indigenous Representative Body

Sustained progress in Indigenous policy-making can only occur when there is a genuine partnership between government and Aboriginal and Torres Strait Islander peoples and communities. 

This requires effective participation by Aboriginal and Torres Strait Islander peoples in the development of policies and programs that affect them. There is presently no Aboriginal or Torres Strait Islander representative in Federal Parliament. ATSIC was abolished five years ago.

The Australian Government acknowledged the importance of addressing this deficit in our democracy and of establishing a new partnership with Aboriginal and Torres Strait Islander peoples when in 2008 it commenced formal discussions with Indigenous peoples about key issues for a new national representative body. Following these consultations, the Minister for Indigenous Affairs, Jenny Macklin, invited the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, to convene an independent Steering Committee to develop a model for a new body.

Last month, the Steering Committee handed its report to the government. This report was the result of a year-long process of research and consultation with Aboriginal and Torres Strait Islander peoples around Australia.

The Steering Committee recommended a new approach to Indigenous affairs. It recommended a new representative body, independent from government, with an equal number of men and women in leadership roles and bound by strict ethical standards. This body would be a direct and independent voice to government from communities around Australia.

The proposed body would be a private company limited by guarantee and would be funded by the Australian Government on a recurrent basis for an initial five-year period, subject to negotiation thereafter.

It would have four main components including: a National Executive led by full-time male and female co-chairs; a National Congress that would set national policies and priorities through an annual congress; an Ethics Council that would apply a merit-based process to shortlist candidates for election as members of the National Executive and to develop and maintain the ethical standards of the organisation; and an administrative support unit.

The model provides multiple ways for Aboriginal and Torres Strait Islander peoples to be involved in the representative body - through existing representative peak bodies, sectoral expert bodies, community organisations, as well as in an individual capacity.

We are still waiting to see a formal response from the government to the proposed model. I am hopeful that the response, when made, will lead to the prompt establishment of an effective and influential representative body to facilitate the meaningful participation of Aboriginal and Torres Strait Islander peoples in the development of policies and programs that affect them.

6 A framework for negotiation to address the unfinished business of reconciliation

The reforms that I have described are all critical to the protection of Aboriginal and Torres Strait Islander peoples’ human rights into the future. However there remains significant ‘unfinished business’ in Australia.

The term ‘unfinished business’ was coined by Patrick Dodson during the life of the Council for Aboriginal Reconciliation. I use it here to refer to the need for acknowledging our history as a nation and facing up to the consequences of past injustices.

There are two critical and related issues that are fundamental to the process of reconciliation in Australia:

It is one thing to acknowledge the existence of human rights violations – as the Apology did so movingly. It is another thing actually to deal with the consequences and the inter-generational effects of past and, in some cases, continuing injustices.

We have seen some promising developments in recent years which go some way to addressing these issues. For example:

But, despite these developments, the process of reconciliation seems to have lost momentum.

The establishment of a new national representative body may well reinvigorate the process and help set in place a new relationship between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians. The Steering Committee for the representative body notes in its report that the body should negotiate a series of protocols or agreements with governments on their relationships with Aboriginal and Torres Strait Islander peoples. This could prove a significant first step.

Australia stands out from other western democracies such as the United States of America, Canada and New Zealand that have negotiated settlements with their respective Indigenous populations. Some of these processes stem from treaties at the time of colonisation. Others are modern in origin.

Comprehensive settlement processes in other countries have led to agreements between government and indigenous peoples in relation to land rights, governance, healing and other issues.

A comparable process for Australia would involve formal recognition of a number of realities: that Aboriginal and Torres Strait Islander peoples were the original owners of this land; that the British took control of Australia without treaty or consent; and that there has been deep injustice done to Indigenous Australians since colonisation. Such a process should help us as a nation work out how to move forward together – respectful of the rights of Aboriginal and Torres Strait Islander peoples as the original inhabitants of our nation and, at the same time, mindful of the rights and obligations of every member of the Australian community.

7 Building a culture of human rights

Finally I would like to talk about the importance of building a culture of human rights in Australia. Human rights education is fundamental to ensuring that the rights of all people in Australia are understood and respected.

Australia needs a significantly enhanced nation-wide human rights education program.

Broad education about human rights, and the relevance of human rights to people’s lives, should lead to a culture of increased tolerance and respect. Education should focus on ensuring that all people in Australia understand their own rights and their responsibility to respect the rights of others.

It is also important to develop specific human rights education initiatives to address the needs of communities facing particular human rights issues.

An important part of creating a human rights culture in Australia will be creating understanding of the particular importance of human rights for Indigenous communities.

Lack of information about rights, the law, and government processes are critical barriers to accessing justice for many Aboriginal people. This was identified in the Little Children are Sacred report which found that ‘many Aboriginal people remain powerless because they do not have access to information’ and recommended that a range of community education projects be undertaken.[7]

The Australian Human Rights Commission, in partnership with the Diplomacy Training Program and Oxfam, is jointly co-ordinating the development of an Indigenous Human Rights Network over the next three years.

This network will facilitate information-sharing between Indigenous human rights advocates across Australia about developments in Indigenous rights at the national and international level. It will develop web-based resources and regional workshops to promote education and collaboration and support Aboriginal and Torres Strait Islander community leaders and advocates.

8 Conclusion

The reforms that I have identified will take a number of years to realise.

Together, these measures should provide a solid foundation for improving the protection of the human rights of Aboriginal and Torres Strait Islander into the future.

We can do better. Aboriginal and Torres Strait Islander peoples are amongst those in Australia whose human rights are the most vulnerable. The Australian Human Rights Commission will continue to advocate for a system of human rights protection that specifically recognises and better protects the rights of Aboriginal and Torres Strait Islander peoples.

[1] For further discussion of these measures, see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, Human Rights and Equal Opportunity Commission (2007) ch 3.
[2] Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000) par 6. See also: Committee on the Elimination of Discrimination against Women, Concluding comments of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/C/AUL/CO/5 (2006) pars 12-13; Committee on the Rights of the Child, Concluding Observations: Australia, UN Doc CRC/C/15/Add.268 (2005) par 9; Committee against Torture, Concluding observations of the Committee against Torture: Australia, UN Doc CAT/C/AUS/CO/3 (2008), par 9.
[3] United Nations Declaration on the Rights of Indigenous Peoples GA Resolution 61/295, UN Doc A/61/L.67 (2007).
[4] The Hon Jenny Macklin MP, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples, 3 April 2009. At: http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/un_declaration_03apr09.htm (viewed 7 September 2009).
[5] Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights: Ways to implement the National Strategy to Recognise Aboriginal and Torres Strait Islander Rights, one of four National Strategies in the Roadmap for Reconciliation (2000). At: http://www.austlii.edu.au/au/other/IndigLRes/car/2000/9/pg7.htm (viewed 7 September 2009).
[6] Constitutional Commission, Final Report of the Constitutional Commission (1988), p 16. See also House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Reforming our Constitution: A roundtable discussion (2008), p 49. At: http://www.aph.gov.au/house/committee/laca/constitutionalreform/report/fullreport.pdf (viewed 7 September 2009).
[7] P Anderson and R Wild, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’ Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007), pp157 and 160.