President speeches: Protecting the human rights of Indigenous people and communities
Commission – General
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,
- Parliament can make laws that breach human rights without providing explicit
justification - human rights can be overlooked in law and policy development processes
- administrative decisions may breach human rights
- Australia does not always provide effective remedies for human rights
breaches - anti-discrimination laws do not protect all human rights or prohibit all
types of discrimination - resources for human rights education are seriously inadequate.
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.
- First, a national Human Rights Act should be passed that includes specific
protection of Aboriginal and Torres Strait Islander peoples’ rights. - Secondly, the government should implement the United Nations Declaration on
the Rights of Indigenous Peoples. - Thirdly, constitutional reform should provide recognition of Aboriginal and
Torres Strait Islander peoples in the preamble to our Constitution. The
Constitution should also be amended to remove existing discriminatory provisions
and replace them with a guarantee of equal treatment and
non-discrimination. - Fourthly, a National Indigenous Representative Body should be established
and processes put in place to ensure the full participation of Aboriginal and
Torres Strait Islander peoples in decision-making that affects their
interests. - Fifthly, a framework for negotiations with Aboriginal and Torres Strait
Islander peoples should be developed to address the unfinished business of
reconciliation. - And sixthly, a focus on human rights education should be pursued to build a
culture of human rights protection and respect.
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:
- requires the government and Parliament to consider the human rights
implications of new laws - requires public bodies to consider human rights when carrying out their
functions and making decisions which affect the public - requires courts to interpret legislation consistently with the human rights
set out in the Act where possible consistently with the purpose of the
legislation.
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:
- fund widespread human rights education in Australia to promote understanding
and use of the Declaration - establish mechanisms to monitor the extent to which the Declaration is being
used in Australia - enable the Australian Human Rights Commission to take the Declaration into
account in exercising its functions.
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:
- we have not yet adequately addressed the ongoing consequences of past
violations of the human rights of Aboriginal and Torres Strait Islander peoples,
and - there has never been agreement between Aboriginal and Torres Strait Islander
peoples and non-Indigenous Australians about how we move forward as a nation,
giving appropriate recognition to Aboriginal and Torres Strait Islander peoples
as the original inhabitants of this land and the custodians of the most ancient
cultures in the world.
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:
- the establishment of the National Healing Foundation
- the commitments to closing the gap within a generation
- the movement to exploring comprehensive settlement approaches to native
title.
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.