Securing the rights of Indigenous Territorians

Securing the rights of Indigenous Territorians

Speech by Mr Tom Calma,

Aboriginal and Torres Strait Islander Social Justice Commissioner,

Human Rights and Equal Opportunity Commission

Forum: Securing Territorian’s Rights – Statehood and a Bill of Rights?

Charles Darwin University, Darwin

10 May 2007

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May I begin by acknowledging the Larrakeyah people – the traditional owners of the land where we meet today.  I pay my respects to their elders and those who have come before us.

My thanks to Charles Darwin University for the invitation to address this important symposium on how best we might secure the rights of all Territorians through constitutional change or a bill of rights.  I also acknowledge Indigenous faculty and students - and for those who may not be aware I was a senior lecturer at this campus for six year in the early 1980s.

I would also like to begin by paying my respects to all of my Indigenous brothers and sisters here in the Northern Territory who have made such a substantial contribution to advocating for the recognition of our rights over a lengthy period of time. Consider the following:

• the equal wages case;
• the Wave Hill walk off;
• the fight for land rights in Gove, and the Bark Petition;
• the historic Aboriginal Land Rights Act;
• the Burunga statement;
• the Batchelor statement;
• the Kalkarinji statement;
• the protests over uranium mining at Jabiluka;
• the tireless efforts for land hand-backs under land rights as well as recognition of native title across the territory;
• the creation of Aboriginal controlled national parks such as Kakadu, Uluru - Kata Tjuta and Nitmiluk;   and the many jointly managed Territory parks
• the recognition of our rights to sea country; and
• the Going Home conference – that led to the Bringing Them Home national inquiry.

This month sees us celebrate and commemorate 40 years since the 1967 Referendum to amend the federal Constitution as well as 10 years since the release of the Bringing them Home report.  It is a time to reflect, and to honour our elders and their forebears for their consistent and unwavering fight for our rights.  We have achieved much in this forty year period. 

The best way that I can honour the legacy of Indigenous peoples’ fight for their rights over the past forty years is to reflect on the challenges that still remain into the future and to share with you a positive vision for our future as Aboriginal peoples, and also as Aboriginal Territorians.  I speak to you today in that spirit. 

In brief – what I want to discuss today are the following points.

First, I want to highlight the importance of human rights and building a culture of respect for human rights within society.

• Our challenge is to ensure that human rights are lived and are not treated solely as aspirational.  This will require building a culture of respect for human rights.

• As I will explain, I do not believe that we currently have such a culture of respect for human rights – or enough of such a culture.  History (and recent times) in the Northern Territory show us that without adequate protections of human rights being in place, rights violations can too easily happen and citizens can be left without a remedy

• I’ll talk about how a Bill of Rights and Constitutional reform in the Territory can contribute to creating such a culture of respect, particularly in relation to Indigenous peoples.

I will reflect on some of the core features of human rights.  Put in crude terms, why do rights matter to Territorians?  I want to talk about ways that they can contribute to improving the livelihoods of all Territorians. 

Having done this, I will then go on to discuss issues relating to the protection of human rights that are specific to Indigenous peoples. 

• Do we need specific protections for Indigenous peoples in addition to those for Territorians in general?

• In the alternative, can a Bill of Rights provide appropriate protection and recognition for Indigenous peoples without including any explicit guarantees for Indigenous peoples?

Ultimately, this raises issues about how to address the following issues for Indigenous peoples:

• Recognition of Indigenous peoples status as first peoples with ongoing traditional connection to land, territories and resources;

• Recognition of the collective rights of Indigenous peoples as distinct societies and peoples; and

• How to address the entrenched inequality that is experienced by Indigenous peoples in the Territory, largely as a result of historical treatment.

 

The importance of human rights and building a culture of respect for rights

So to begin, I want to reflect on the importance of human rights and of building a culture of respect for human rights.

As a nation we pride ourselves on being the ‘lucky country’ and on giving everyone a ‘fair go’.  This is often described as being part of our ‘character’ – as part of the essence of what it means to be an Australian.

As a people, Australians are resilient, resourceful, and determined.  We speak our mind.  We are proud of our achievements and we play hard.  We like to win! And we are respected internationally as a robust democracy and as a nation committed to the rule of law and human rights. 

Given these great characteristics of Australians generally then, there are some features to debates on human rights in Australia that are somewhat surprising. 

There is an antipathy and indeed hostility towards human rights from some people.  For a country that is such a robust democracy, this is a surprise.

I suspect that this comes from the very poor understanding about human rights generally in Australia.  This misunderstanding occurs across a spectrum.  At one end, human rights are often misused as political tools, devoid of their legal content;  and at the other end of the spectrum, they are often presented as somehow a threat to the sovereignty of governments or as intrusions from foreigners, namely un committees, ‘telling us what to do!’

Somewhere in between is the belief that ‘human rights’ are responsible for providing ‘special treatment’ to some groups – such as to Indigenous peoples.   This is a myth that has proven very difficult to counter in public debate despite the lack of evidence for it and the demonstrable inequality experienced by Indigenous peoples.

And in the middle is the pragmatic Australian who doesn’t really see the need for human rights protections and sees that Australian values, such as the ‘fair go’, are good enough protections. 

As an example of this, there is currently a web forum on the ABC website related to an opinion piece by Fred Chaney discussing the announcement this week by the Western Australian government that it is looking at introducing a Bill of Rights.  One of the contributors to that forum, “Jared”, says of a Bill of Rights:

What a lot of tax payer funded rubbish.  If you don’t like what the government is doing, vote them out.  It's called democracy.  Simply enshrining some 'basic' human rights in a bill of rights is never going to stop a government from throwing them out or rewriting them when they feel like it, so what's the point? And further, Australia and Australians have lived for over 200 years without a formal bill of rights.  Why exactly do we need one now?¹

One of the problems of simply relying upon democracy is that it is not always the rights of the majority grouping that are affected.  When you are 2% of the total population, majority rule does not provide the protection that Jared suggests exists.

• It may also come as a surprise to Jared, and other Australians, when they realise that in Australia we have one of the weakest systems for the protection of human rights in the western world. 

We have not implemented in domestic legislation perhaps more than half of the international legal obligations that we have undertaken to respect through ratifying international human rights treaties. 

This has resulted in what the UN has termed an ‘implementation gap’.  This gap was identified at the UN World Summit in September 2005 as one of the primary challenges for the international system if it is to achieve peace, security and development for all.

As Fred Chaney asked earlier this week: (and I quote)

Could you stand up in public, in a courtroom, or even stare down a government and its bureaucracy and confidently demand your rights?  I'll hazard that the answer lies somewhere between "probably" and "but I don’t know my rights".   If you say "probably" you may well be among the many people who think Australia has legally-enshrined rights like most other countries, although we don't.²

If we look to domestic Indigenous policy making processes, they treat human rights as a prescriptive framework that is focused on what you can’t do and on a compliance mentality.  Efforts to engage with human rights principles are limited to a cursory examination of whether an initiative might fall fowl of racial discrimination laws, rather than a fuller consideration of whether those policies are consistent with the full suite of human rights principles.

Clearly this is an essential component of the human rights system.  But it is much more than this.  It also encourages the adoption of proactive measures to create an enabling framework for active participation and engagement of all citizens, and particularly for those who are disadvantaged or powerless. 

The human rights framework promotes a focus on ensuring that different segments of the population are able to participate fully.  This requires a focus on gender equality; the rights of children and a focus on the best interests of the child; as well as providing recognition and protection for cultural diversity. 

Importantly, human rights also provide a framework to assist in targeting government activity to areas of greatest need.  One of the fundamental goals of human rights is the provision of equality before the law and non-discriminatory treatment for all. 

Where such discrimination exists, such as the entrenched discrimination against Indigenous peoples that is reflected in disproportionately high rates of disadvantage, there are obligations on the national government to ensure that actions by government to address these inequalities are sufficiently targeted, are progressively reducing the inequality gap and are doing so as quickly as possible and utilising the maximum of available resources. 

What should be clear from this description of human rights is that they are a tool for accountability of government to Australian citizens.  They provide a framework for ensuring that in the making of decisions, principles of equality and fairness are taken into account and that all decisions can be justified on the basis of human rights considerations. 

As it relates specifically to Indigenous peoples, human rights also provide an enabling framework that promotes active engagement through partnerships, shared decision making and ultimately shared responsibility for outcomes.  A human rights based approach also emphasises the necessity for Indigenous participation at all stages of the policy development and implementation processes. 

Effective participation in decision making processes that affect us has been confirmed as essential to ensuring non-discriminatory treatment and equality before the law.  It is also central to the human rights based approach to development which is now widely accepted and operational across the United Nations and the international development cooperation system.

In brief, I want to refer to some of the limitations in the protection of human rights in Australia at present.  These are some of the issues that need to be addressed through a bill of rights or constitutional reform.

• Federally and in all states and territories, we have anti-discrimination laws that prevent discrimination on the basis of sex, race, age, disability and other grounds and which also prohibit racial hatred.  These are important laws and have been in place for some time now.  They are the first stage of human rights protection in Australia. 

• But they are also limited in their operation and they can be difficult to enforce.  One of the difficulties is the burden of proof, and the individual nature of the processes.  Group actions are difficult to bring, and these laws are generally not very good at addressing the systemic issues that may be the underlying causes of an individual complaint or at achieving system wide reform where a problem is more broadly based. 

• In most instances, existing laws against racial discrimination do not protect against religious discrimination – and this is an emerging issue within Australia for new migrants who are Muslim from Africa, Asia and the Middle East.   

• And existing anti-discrimination laws are generally limited to prohibiting unlawful behaviour – i.e., as negatively focussed – rather than proactively encouraging greater harmony, respect and equality.  There are examples in other countries where human rights laws reflect the legal obligations of governments to not only respect rights by preventing violations, but also to protect and fulfil rights by positively promoting understanding and informed decision making.  In the United Kingdom for example, there is an enforceable statutory duty on government agencies to promote racial equality. 

• For the states and territories, the existing discrimination laws at the federal level also provide an important check and balance on the exercise of power.  This is by virtue of the operation of section 109 of the federal Constitution, which renders invalid any law of the states and territories that is inconsistent with a validly made federal law.  This means that all state and territory laws must be consistent with the Racial Discrimination Act, for example. 

The protection of the Racial Discrimination Act was instrumental in overturning the reservation system in Queensland in the late 1970s and in making invalid laws passed in Queensland and Western Australia that sought to extinguish native title across the board. 

• Utilising this protection is, however, difficult.  It requires court action to the High Court and meeting the complex burden of proof.  It is arguable that mandatory sentencing laws could have been challenged all the way to the High Court – but the path proved a difficult one.

• The limitation of this is that it only applies to the states and territories.  On two occasions now the federal government has introduced laws that are discriminatory in their impact – amendments to heritage protection laws to prevent them from applying to one group of Indigenous people in relation to the building of the Hindmarsh Island bridge, and amendments to native title laws that extinguished and otherwise impaired native title rights of Indigenous peoples so that they are prevailed over by other non-Indigenous interests.  As these laws were more recent federal laws than the Racial Discrimination Act, the principle of parliamentary sovereignty meant that the latter laws are valid.  In fact, in making submissions before the High Court in the Hindmarsh Island Bridge Case, the federal government’s Counsel acknowledged that there is nothing in our Constitution or system of laws that would prevent the federal government from introducing ‘Nazi style Nuremberg’ laws. 

• So in effect, there is no restriction on the federal parliament from introducing racially discriminatory laws despite the existing protections against racial discrimination in Australia.  However, States and territories who do so risk the laws being found invalid by the High Court, but only where cases are able to be formulated appropriately – i.e, that they can prove discrimination:  breaches of other human rights will be irrelevant to this decision as they are currently not protected in federal laws.

• The other main limitation in relation to human rights in Australia is that in simple terms, there are simply no extensive protections of human rights.  So, in litigation about the stolen generations, the Courts have found that as long as the laws were validly enacted, there is no remedy for the treatment of people who were removed.  In Kruger v Commonwealth,³ Chief Justice Brennan of the High Court stated that:
  

  the Australian Constitution, with few exceptions…, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power.  Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament.  Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights.  The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. 

• In relation to the powers of the federal government to make laws in relation to territories such as the NT, Chief Justice Brennan also stated in the Kruger case that:
  

  the legislative power of the parliament to make laws for the government of the territories is sovereign and, subject to the possibility of any specific limitation to be found elsewhere in the Constitution, there is nothing which places rights of any description beyond its reach.

In other words, there are no restrictions on what laws can be made for the Territory and no rights that are guaranteed.

So what does all this mean for the protection of human rights in the Northern Territory?

It means that the protection of human rights that actually exists is more limited than the average person would think.  There are limited remedies where your rights are violated.   And other than the normal scrutiny processes of Parliament – such as committees of inquiry - there are not processes in place to ensure that government has to consider how its laws and policies are likely to impact on the rights of its citizens, prior to them being introduced.

There is an illusion of human rights protection in Australia.

The protection of human rights is now starting to be addressed across Australia.  Victoria and The ACT now have Bills of Rights in their Human Rights Acts.  And Tasmania and Western Australia also have consultation processes underway to introduce such protections. 

Options for protecting the rights of Indigenous peoples in the Northern Territory

So what does it mean for Indigenous peoples in the northern Territory?

There are three key considerations that impact on the human rights situation of Indigenous peoples and the type of protection that would be desirable.

First, is that you can expect that those who are the most marginalised and vulnerable within society are the people who will feel the impact of a lack of protection the most.  This is particularly when that group is a minority or suffers other barriers to participation in mainstream society – such as language, geographical and educational barriers. 

The entrenched disadvantage and inequality experienced by Indigenous peoples is a serious concern in this regard which renders Indigenous peoples more vulnerable to breaches of their rights.  In practical terms, this means that any human rights protections must acknowledge that there does not exist a level playing field.  Human rights do allow for special measures for disadvantaged sectors of society to ‘catch up’ and importantly, they require that this be done as quickly as possible, with benchmarks and targets and with a foreseeable end to such measures once equality is achieved.

Second, this vulnerability can hinder the ability of Indigenous peoples to claim their rights.  If your life experience is one of marginalisation and poverty, you may not feel that you are in a position to challenge people in positions of authority.  Having your rights trammelled can be met with resignation or frustration rather than action. 

Human rights emphasise the importance of active participation and of process.  Indigenous engagement and participation is essential to realising positive change and this is recognised internationally in human rights standards.  In recent years this has begun to be made explicit by reference to the principle of free, prior and informed consent.  It is also an essential part of the right to non-discrimination and equality before the law, self-determination, the right to development and for the provision of culturally appropriate services which is an essential component of the rights to health, housing and an adequate standard of living.

Third, so much of the powerless of Indigenous peoples is the result of the lack of recognition and respect for our cultural systems and way of life.  So an essential component of human rights is supporting cultural diversity and our right to be different.  Equality does not mean identical treatment, based on one cultural model.  It requires recognition of our cultural difference as a positive contribution to the cultural diversity of our nation. 

There is increasingly recognition internationally that the situation of Indigenous peoples is unique in that we have been colonised and continue to seek to perpetuate different cultures within this colonisation context.  We therefore retain collective rights as peoples, which are inherent in our status as First Nations Peoples.  These collective rights are unique to us: they include rights to self-government; to our lands, territories and resources; and to perpetuate and protect our cultural characteristics. 

International recognition of this, however, is limited in two important respects:  first, we must do so consistent with human rights and not violate the rights of individuals either within our culture or more broadly within mainstream society; and second, that we continue to operate within existing nation states and are bound by the rule of law, principles of good faith, partnerships etc – so we don’t have unilateral or exclusive rights that override the systems of the nation state where we live.

So how do we protect Indigenous peoples human rights in this context?  

First it must be noted that adequate protection of rights isn’t achieved by one initiative of itself, such as a bill of rights.  It will require a comprehensive approach that encompasses:

• rights education within communities and as a core component of our schooling and education system (similar to the treatment given to civics education);
• support to build the capacity and good governance within our communities, consistent with an understanding of human rights;
• it will carry right through to processes for Indigenous  peoples to contribute to formulating as well as analysing and evaluating government policy and service delivery, and to effectively participate in decision making processes;
• it also requires ensuring that there is a proactive system of protection against violations of peoples’ human rights and a system of remedies where such violations have occurred.

There must be a range of activities that complement a Bill of Rights or other forms of rights protection.

This is not, however, an argument against a Bill of Rights.  Often opponents of bills of rights will claim that creating such a law doesn’t create a culture of rights and so on.  That is true.  But in my view, it is doubtful whether such a culture of respect for human rights can exist without a bill of rights.  This is particularly so where there is a low level of understanding of human rights and no requirements for government to actively consider rights in their processes.  So a Bill of Rights can be a positive agent of change by putting rights on the table and mandating that they be a consideration at all stages of the government process. 

The next issue is whether there is a need for specific recognition of Indigenous rights or whether the general protections of human rights will be sufficient to protect Indigenous peoples’ rights.

A Bill of Rights generally protects the rights of individuals as opposed to collectives.  All Indigenous people – as individuals – should have such protections.  But it would be useful to supplement this with protection of the overall integrity of Indigenous cultures at a collective level.  This can be done in two main ways – recognising the rights of indigenous peoples to self-determination; or through a constitutional recognition such as section 35 of the Canadian Constitution.

It is important that we recognise the distinct status of Indigenous peoples – we are not merely ‘disadvantaged Australians’ or a ‘minority’ grouping.  We are the First Peoples of this land who were colonised and have continuing connections to land etc that pre-date current society.  This relationship and status must be recognised, respected and protected.  A failure to do so renders all other protections of our rights nugatory, as they will be out of context. 

It can be argued that this recognition should flow from protections within a Constitution that recognise our unique status.  Section 35 of the Canadian Constitution is a good precedent and example of this.  It recognised and affirms existing Aboriginal rights.  Such a provision in the Northern Territory Constitution might read something like the following:

The pre-existing rights of Aboriginal peoples in the Northern Territory are hereby recognised and affirmed, consistent with international human rights standards.

I believe that such a provision in a repatriated Constitution for the Northern Territory would be an invaluable and appropriate recognition.  This should be a priority for Indigenous peoples in the Territory in the statehood debate.

It could also be argued that the general protection of equality before the law and non-discrimination includes recognising and protecting cultural diversity and would therefore, by implication, recognise our Indigenous cultures and protect them. 

That it would is clear from the international jurisprudence at the United Nations.  But this does not guarantee that Australian courts, who would be the arbiter of this, would accept this position. 

The position that has been adopted under the Racial Discrimination Act in decisions such as Gerhardy v Brown shows why we should be cautious in expecting such an outcome.  That decision has been widely criticised as running counter to international law understandings of equality. 

Again, it would be preferable for there to be a more explicit recognition of the importance of recognising and protecting the inherent value of Indigenous cultures.  This would not override other human rights protections as such recognition would have to be applied consistently with other human rights standards (so for example, culture could not be used as a veil to breach the rights of women to be free from violence).

Finally, so much of the experience of Indigenous peoples reflects in systemic barriers in the enjoyment of economic, social and cultural rights.  A Bill of Rights limited to civil and political rights will be of limited protection for Indigenous peoples.  Any Bill of Rights should recognise economic, social and cultural rights.  These are not merely aspirational.  There is a concrete set of steps required to meet rights to the highest attainable standard of health, housing, nutrition, water and an adequate standard of living.  Complex tools have been developed to ensure compliance with these rights – such as health impact assessments. 

Some of you may be aware of a campaign that I have commenced to achieve health equality for Indigenous peoples within a generation.  This demonstrates the value of a rights based approach to Indigenous health.  It provides a sharper focus for health planning to ensure that it meets basic standards of equality, cultural appropriateness, adequacy, and it places Indigenous health within a more holistic context with a focus also on the social determinants of health. 

Including economic, social and cultural rights within a bill of rights would mandate that government policy turns its attention to whether policy and service delivery meets core elements of a human rights based approach and would contribute to greater debate and accountability for human rights.

And ultimately, that is what a Bill of Rights is about – ensuring transparent government decision making and accountability.  It is about closing the implementation gap between the commitments of governments and their actions. 

It does not fetter the supremacy of Parliament and the responsibility for decision making by governments.   It simply mandates that human rights are front and centre in any consideration of policy and programming –   as it should be. 

Thank you

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Endnotes

 

1. Available online at: www.abc.net.au/news/opinion/items/200705/s1914502.htm, accessed 8 May 2007.

3. (1997) 190 CLR 1.

2. Fred Chaney, WA starts human rights journey, ABC Online 7 May 2007, Available online at: www.abc.net.au/news/opinion/items/200705/s1914502.htm, accessed 8 May 2007.

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Further reading on some of the issues raised in the speech and produced in recent times by the Aboriginal and Torres Strait Social Justice Commissioner and the Human Rights and Equal Opportunity Commission.

1. The Aboriginal and Torres Strait Islander Social Justice Commissioner made a submission to the Australian Senate, Community Affairs, Legislation Committee on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 (Cth) on 13 July 2006, the submission can be found online at: http://www.humanrights.gov.au/Social_Justice/submissions/alra_amendments_senate_subjuly2006.html

2. The Human Rights and Equal Opporutnity Commission made a submission in response to the Tasmanian Law Reform Institute’s Issues Paper: A Charter of Rights for Tasmania? The submission can be found online at: http://www.humanrights.gov.au/legal/submissions/Tas_charter_rights.html

3. An information page on the Bringing them home Report can be found online at: http://www.humanrights.gov.au/bth/
   
   In this section of the web site you will find details of activities to celebrate the 10th anniversary of the tabling of the report.

4. The Aboriginal and Torres Strait Islander Social Justice Commissioner made a submission to the Northern Territory Law Reform Committee's inquiry into the recognition of Aboriginal customary law. The submission can be found online at: http://www.humanrights.gov.au/Social_Justice/customary_law/nt_lawreform.html

5. The Social Justice Commissioner’s homepage contains further materials, including the annual Social Justice report and Native Title Report to federal Parliament. Online at: http://www.humanrights.gov.au/Social_Justice/index.html

6. Ending Family Violence in Aboriginal and Torres Strait Islander Communities – Key Issues, an overview paper of research and findings by the Human Rights and Equal Opportunity Commission, 2001 – 2006 can be found online at: http://www.humanrights.gov.au/social_justice/familyviolence/family_violence2006.html