Davis, Megan --- "Indigenous Rights and the National Human Rights Consultation" [2010] IndigLawB 14; (2010) 7(17) Indigenous Law Bulletin 24

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Indigenous Rights and the National Human Rights Consultation

Megan Davis

On 30 September 2009, the committee overseeing the National Human Rights Consultation (‘the Committee’) handed down its report to the Federal Government (‘the report’).^[1] Chapter nine deals with issues affecting Indigenous people, explaining why the Committee did not recommend an Indigenous-specific right. The report dismisses recognition of such a right for a number of reasons, one of which involves the claim that Indigenous rights are unsettled and controversial. Insensitively, the chapter concludes that the ‘limited response from the Indigenous community on this point’ precludes serious consideration of whether rights specific to Indigenous people ought to be explicitly included.^[2] This is an extraordinary comment to make in respect of a community that is known to be under-funded, under-resourced and, by the Committee’s own admission, ‘consulted out’. This decision represents a step backwards for Indigenous rights and the status of Australia’s first people. Chapter nine is available on the National Human Rights Consultation website for Aboriginal and Torres Strait Islander people to read and should be distributed widely.^[3]

Deciding not to consider Indigenous-specific rights means that the report was written in isolation of Unfinished Business – the substantive legal advocacy and scholarship on Indigenous rights developed over decades. This includes the crucial work of the Council for Aboriginal Reconciliation, the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) and even the Social Justice Reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner.^[4] This body of work establishes why and how such recognition could be achieved. Of course, Unfinished Business raises enormous constitutional questions that were ostensibly outside the purview of the National Consultation. Yet the Committee’s failure to even cite or reflect on decades of debate is problematic. As Pat Dodson said:

It is hard to be enthusiastic about the outcome of this Inquiry … Do we keep amending and repealing Acts or do we need an overhaul of the entire Constitutional framework?^[5]

The dismissal of Indigenous rights by the Committee comes despite the adoption in 2007 of the Declaration on the Rights of Indigenous Peoples (‘the Declaration’) by the General Assembly of the United Nations.^[6] According to the report, the adoption of the Declaration was not sufficient to establish that Indigenous people have distinct or agreed rights; the Committee considered this more an attempt to resolve ‘tensions and complexities’ between ‘universal rights’ and the ‘legitimate concerns of minorities’.^[7] Inaccurately, the report overstates the opposition of Canada, Australia, New Zealand and the United States (‘CANZUS’) because of their ‘sizeable Indigenous populations’. This ignores the fact that CANZUS have minority Indigenous populations compared to the 143 states who voted in favour of the Declaration.

Another worrying aspect of the report is the weight that was given to those members of the Australian community who were ‘consulted’ who believe that Indigenous rights do not exist, should not be recognised and that protecting them would amount to a grant of something extra that ‘ordinary Australians’ are not afforded.^[8] The Committee noted the sentiments expressed by the majority of survey and focus group participants that ‘differences should be in the mode of enjoyment of same rights rather than the enjoyment of differing rights’.^[9] This approach betrays an important internal contradiction: the strength of this report is its acknowledgement of the poor knowledge and lack of community understanding about human rights. Indeed, this is the reason underpinning the Committee’s recommendation in favour of human rights education. Yet, at the same time, the Indigenous chapter gives excessive weight to uneducated, ill-informed views and treats them as persuasive.

The right of Indigenous people to practice their distinct cultural rights is inherent; it is fundamentally important that states protect this right. This has been recognised not only in the Declaration but also in binding conventions such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Racial Discrimination.^[10] Furthermore, Indigenous rights have been recognised extensively in the Australian legal system, whether through the common law or through legislation such as the Native Title Act 1998 (Cth), the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Family Law Act 1975 (Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). On top of this, there are many state based statutory schemes covering land, heritage and intestacy issues. In fact, we now have bipartisan support for express acknowledgement of the distinct nature of Indigenous rights in the preamble to the Constitution.^[11] So why does this report give the impression that Indigenous rights are controversial and unsettled?

Maybe it is because Aboriginal and Torres Strait Islander people have fallen victim to the politics of pragmatism, which seem to have replaced leadership and courage in the Australian democracy. This can be seen in the report’s screeching over-emphasis on ‘consultation’ with focus groups comprised of ordinary Australians who have very limited knowledge of human rights and even less understanding of Indigenous people.

Indeed, it appears that the motto of those pursuing a charter of rights has been one of ‘minimalism and pragmatism’. The process operated on three entrenched assumptions. First, our political class is not courageous: the current leadership is not prepared to go out on a limb for human rights, let alone for Indigenous rights. Second, Australians are racist and will not to come to the party on Indigenous rights – we should just resign ourselves to that fact. Third, our democratic system works well and parliamentary sovereignty should be preserved as much as possible.

While each of these assumptions is troubling, the final proposition is particularly difficult. The human rights sector wants a charter of rights precisely because our democratic system does not work to protect vulnerable members of the community. In Australia, the executive is subject to few effective checks and balances beyond the ballot box. Indigenous people are a casualty of this system because our statutory rights exist at the whim of a political system where what one parliament gives, the next can take away. As 2% of a 21 million population, Indigenous issues will always be exposed to the zero sum game of utilitarianism. The Committee gives a peculiar nod to the power of majoritarianism in relation to Indigenous people, recommending that Federal Parliament provide a statement of impact for future acts that suspend human rights (Racial Discrimination Act 1975 (Cth)). It is worrying that this report, while anticipating violations of Indigenous rights in the future, also embeds in Australia’s human rights culture a commitment to racial discrimination (although section 51(xxvi) of the Constitution already does that).^[12]

As a human rights lawyer, I would welcome a human rights act primarily because of the important educative role it would play in Australia. The report’s commitment to human rights education is absolutely critical to the future development of Indigenous rights in the Australian legal system. A national human rights program is something that Aboriginal and Torres Strait Islander communities can celebrate. Still, having read the report’s comments about the ostensibly unsettled nature of Indigenous rights, only a few years before the 20^th anniversary of the High Court’s decision in Mabo,^[13] I can’t help but ask myself: Are we back here again?

Ultimately, the authors of the report are only reflecting political reality. I know when Kevin Rudd was elected that many people thought the nation would pick up where Paul Keating left off on Indigenous issues. Besides delivering the Redfern Speech – the greatest speech ever given by an Australian Prime Minister on Indigenous issues – Paul Keating was a leader who thought seriously and deeply about Indigenous issues. But, as Robert Manne argues in The Monthly, Rudd’s ‘regression and evasion’ on the History Wars stands juxtaposed against Keating’s ‘flinching’ Redfern speech and leadership on Aboriginal issues.^[14] For me, it confirms the accepted wisdom in Aboriginal and Torres Strait Islander communities that Prime Minister Rudd did not pick up from where Paul Keating left off but rather continued in a straight line from the approach favoured by John Howard. Of course, many felt that way early on after his refusal to consider providing compensation to members of the Stolen Generations. I agree with Andrea Durbach, whose article appears in this edition of the Indigenous Law Bulletin, that our democracy is diminished and our country the poorer for those pragmatists who adjust their expectations and imagination to demand of our political class only that which is acceptable to the lowest common denominator. If, as Robert Manne astutely describes it, Rudd’s declaration about the end of the History Wars is ‘regression and evasion’, so too is the Committee’s chapter on Indigenous rights.

Megan Davis is Director of the Indigenous Law Centre and Senior Lecturer at the Faculty of Law, University of New South Wales and is an occasional columnist for the Koori Mail. She is a member of the International Law Association’s Indigenous Rights Committee and participated in the drafting of the UN Declaration on the Rights of Indigenous Peoples from 1998-2004.

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^[1] National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) at <http://www.humanrightsconsultation.gov.au/> .

^[2] Ibid 211.

^[3] Ibid, Chapter 9, ‘Human Rights and Indigenous Australians’ in National Human Rights Consultation Report at: <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReport-Chapter9> .

^[4] See, for example, Aboriginal and Torres Strait Islander Commission and Council for Aboriginal Reconciliation Walking Together: The First Steps (1994); Council for Aboriginal Reconciliation Going Forward: Social Justice for the First Australians (1995); Aboriginal and Torres Strait Islander Social Justice Commissioner Indigenous Social Justice, Volume 1: Strategies and Recommendations (1995); Council for Aboriginal Reconciliation, Aboriginal and Torres Strait Islander Commission, Aboriginal and Torres Strait Islander Social Justice Commissioner Towards Social Justice? An Issues Paper Commencing the Process of Consultation by Aboriginal and Torres Strait Islander Commission (1994); Aboriginal and Torres Strait Islander Commission Native Title Social Justice Advisory Committee, Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures (1995).

^[5] National Human Rights Consultation Committee, above n 1, 212.

^[6] G.A. Res. 61/295,U.N. Doc. A/RES/47/1 (2007).

^[7] National Human Rights Consultation Committee, above n 1, 205.

^[8] Ibid 207.

^[9] Ibid 217.

^[10] Convention on the Rights of the Child (1989) 1577 UNTS 3; 28 ILM 1448; [1991] ATS 4; International Convention on the Elimination of all forms of Racial Discrimination [1975] ATS 40.

^[11] Megan Davis, ‘Indigenous Rights and the Constitution: Making the Case for Constitutional Reform’ (2008) 7(6) Indigenous Law Bulletin 6-8.

^[12]National Human Rights Consultation Committee, above n 1, 216.

^[13] Mabo v Queensland (No 2) [1992] HCA 23.

^[14] Robert Manne, ‘The History Wars’ (2009) The Monthly 17.