Public law at Jumbunna
Professor Larissa Behrendt primary area of interest is constitutional and public law matters relating to indigenous peoples. She was a member of the ACT Bill of Rights Consultative Committee that led to the enactment of the ACT Human Rights Act . She was a member of the ATSIC Treaty Think Tank and has published widely on indigenous issues including her most recent book on indigenous peoples issues in Australian public law ' Achieving Social Justice and ' Aboriginal Dispute Resolution'. Larissa is the Chief Investigator on a Treaty project and Aboriginal governance project [link through to grants page]. Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: their role and relevance for Indigenous and other Australians (2002-2005) with the University of Melbourne (Professor Marcia Langton, Chair of Indigenous Studies, and Ms Maureen Tehan of the Faculty of Law, and Dr Lisa Palmer, Postdoctoral Research Fellow), University of New South Wales (Professor George Williams) and ATSIC (industry partner).
The Public Law Aspects and Implications of a Treaty or Framework Agreement(s). (2002-2005) with UNSW (Professor George Williams and Sean Brennan, Gilbert & Tobin Centre of Public Law including a partnership with Reconciliation Australia and support from the Myer Foundation), and AIATSIS (Dr Lisa Strelein).
Megan Davis used to be the Director of Bill of Rights at the Gilbert + Tobin Centre of Public Law before joining Jumbunna Research Unit. She has published and given papers on the importance of a bill of rights for Australia. She has examined the impact of aboriginal customary law upon Australia's human rights obligations for the Western Australia Law Reform Commission. She has lectured in Public Law and Australian Legal Systems and Process. Ruth McCausland worked at the Human Rights and Equal Opportunity Commission on the Stolen Generations inquiry and at the Anti-Discrimination Board, and is the author of the ADB report 'Race for the Headlines: racism and media discours'e. Jason Field worked on the Stolen Generations inquiry. Mark McMillan is primary researcher on a project examining possibilities of Regional governance for Aboriginal and Torres Strait Islander communities.
1. WHAT RIGHTS PROTECT INDIGENOUS PEOPLES?
International human rights law
Universal rights
Indigenous peoples are the beneficiaries of all human rights that are enumerated in international human rights instruments. These rights are known as 'universal rights' because they are the rights that all human beings enjoy by virtue of their humanity and inherent dignity. These universal rights are enumerated in the following international human rights instruments:
- The International Covenant on Civil and Political Rights (ICCPR)
- The International Covenant on Economic, Social and Cultural Rights (ICESCR)
- The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- The International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- The International Convention on the Rights of the Child (CROC)
- The International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- The right to self-determination
Indigenous peoples assert the fundamental right of self-determination. The right to self-determination is enumerated in common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the United Nations Charter:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.The United Nations Draft Declaration on the Rights of Indigenous peoples that is currently being negotiated annually by a Commission on Human Rights inter-sessional working group recognizes the indigenous right of self-determination Article 3 of the Draft Declaration states:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
There are some member states of the United Nations that object to the indigenous right to self-determination on the basis of territorial integrity and secession. Indigenous peoples repudiate member state concerns about secession, arguing that it implies that indigenous peoples relinquished their sovereignty and submitted to colonisation. Moreover Indigenous peoples argue that the right of self-determination is a democratic entitlement at international law and that the denial of self-determination is essentially incompatible with true democracy.
Indigenous collective rights
Indigenous peoples have an inherently communitarian culture that lends itself to a communal form of collective ownership of the land. Indigenous ownership of the land is not centered on the individual but on the collective. Collective rights are currently recognised in numerous international human rights law instruments, for example the International Covenant on the Elimination of All Forms of Racial Discrimination (CERD), International Labour Organization Indigenous and Tribal Peoples Convention 1989, Convention 169 (uses the term 'indigenous peoples' throughout the Convention), the 1986 African Charter on Human and Peoples Rights provides recognition of indigenous peoples claims to collective rights, the 1978 UNESCO Declaration on Race and Racial Prejudice, the 2001 UNESCO Declaration On Cultural Diversity and the Convention on Biological Diversity also affirms collective rights. Collective rights of indigenous peoples have also been recognised by the Inter-American Court of Human Rights in Mayagna (Sumo) Awas Tingni Community v Nicaragua.
Collective rights are recognised in Australian law and other jurisdictions. The Native Title Act 1993 (Cth) creates collective rights in the Australian legal system. Section 223(1) defines the expressions 'native title' and 'native title rights and interests' as 'the communal, group or individual rights of Aboriginal peoples and Torres Strait Islanders in relation to lands or waters.'
Of particular interest to indigenous peoples is Article 27 of the International Covenant on Civil and Political Rights, which states:
In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
The Human Rights Committee has held that Article 27 of the International Covenant on Civil and Political Rights provides a positive obligation on states to protect such cultures the Committee observes that culture manifests itself in many forms including a particular way of life associated with the use of land resources especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
In Lovelace v Canada the Human Rights Committee, found that Sandra Lovelace had been denied her right of access to her indigenous culture and language with other members of her group. Section 12(1)(b) of the Canadian Indian Act empowered the rescission of her membership upon marriage to a non-Indian. The Act provided no such rescission for an Indian man who marries a non-Indian. The Committee found that the Act violated the International Covenant on Civil and Political Rights because it excluded a certain class of Indian women from government controlled recognition of Indian bands. Lovelace affirmed the right of an individual within a group, 'to access to her native culture and language in community with the other members of her group'. Lovelace is significant because the interference with her membership denied her Article 27 rights. The Human Rights Committee found that no legal impediments should prevent a member of a minority from associating with any other group. Any legal impediment must have a 'reasonable and objective justification'.
Alternatively, Kitok v Sweden deemed interference with a persons membership as legitimate if it is justified and necessary. In Kitok the Committee held that a restriction placed upon the right of any member of a group must be shown to have a reasonable and objective justification and be considered necessary for the continued viability and welfare of the group as a whole. The Human Rights Committee found that in restricting Kitok's rights to reindeer herd, the Act did not violate Article 27 as protected by the ICCPR. The Committee considered that the Act was a means to ensure the continuation and viability and welfare of the Saami people as a whole.
Non-discrimination and equality before the law
Non-discrimination is a fundamental principle of international law. The principle of non-discrimination principle is enshrined in the purposes and principles of the Charter of the United Nations, encouraging states to respect human rights and fundamental freedoms for all 'without distinction as to race, sex, language or religion'. Non-discrimination underpins the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention on the Elimination of All Forms of Discrimination against Women and is also enumerated in the International Covenant on Economic, Social Cultural Rights. Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination as constituting:
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
The ICERD, in particular has become the international community's primary tool in combating racial discrimination. The ICERD has a reporting mechanism under which state parties must submit periodic reports on the measures that are taken by them to implement the provisions of the Convention. It has become an important method for monitoring State parties commitment to the Convention. ICERD is indigenous peoples primary advocacy tool and a benchmark by which they can engage their state and measure their conduct according to internationally agreed minimum standards. This was illustrated by Australian indigenous peoples resort to CERD because of, among many indigenous concerns a lack of meaningful consultation with the Commonwealth on amendments to the Native Title Act 1993 (Cth). This led to the condemnation by CERD of Australia's amendment to the Act. CERD also noted the disturbing lack of domestic rights protections in Australia.
Equality before the law
Equality before the law is enumerated in article 7 of the Universal Declaration on Human Rights and in article 26 of the International Covenant on Civil and Political Rights:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 26 provides equality before the law and equal protection of the law to all citizens as well as prohibiting discrimination under the law.
Resolving equality before the law and non-discrimination
International law moves beyond a conclusion that non-discrimination and equality before the law require the same treatment for all people in all circumstances. It is accepted in international law that the principle of equality [do]es not require absolute equality or identity of treatment but recognizes relative equality ie different treatment proportionate to concrete individual circumstances. In order to be legitimate, different treatment must be reasonable and not arbitrary and the onus of showing that particular distinctions are justifiable is on those who make them.
In the International Court of Justice decision in South West Africa Case (Second Phase) Judge Tanaka held that:
The principle of equality before the law does not mean absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal…To treat unequal matters differently according to their inequality is not only permitted but required.
This raises the dichotomy of formal equality and substantive equality. Formal equality is the principle that all people should be treated identically in all circumstances. Substantive equality holds that all people are not equal and consequently it is permitted to unequally that which is unequal. International law advocates and permits the substantive equality approach because it acknowledges that there are situations where concrete circumstances may necessitate unequal treatment for unequal matters. These circumstances permit distinctions to be made if those distinctions are reasonable and proportionate.
Special Measures
The concept that states may take action temporarily to correct discrimination is also enshrined in the ICERD and incorporated into the Australian legal system through the Race Discrimination Act 1975 (Cth). Entrenched in the convention is an that it is permissible to treat unequally that which is unequal. This understanding does permit Aboriginal and Torres Strait Islanders to be treated differently to non-Indigenous Australians because of the pre-existing inequality between these two groups permits such treatment. The attainment of equality in a society may warrant and legitimise differentiation of treatment.
There are two ways in which this can be done legally special measures and actions which legitimately recognise cultural difference. Special measures are motivated by the need to remedy the impact of racial discrimination upon on a community. The ICESCR permits special measures to correct inequality by requesting States to undertake steps, individually and through international assistance and co-operation, especially economic and technical, to the maximisation of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
More significantly (given that it is incorporated into the Australian legal system) the ICERD provides for special measures. Article 1(4) of ICERD states:
Special measures taken for the sole purposes of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
Article 1 (4) of the ICERD also caveats special measures from constituting racial discrimination.
Recognition of legitimate cultural difference
The preferred option for the recognition of aboriginal law would be actions which legitimately recognise cultural difference empowered by Article 1(4) of International Convention on the Elimination of All Forms of Racial Discrimination. Such an action could be viewed as a legitimate differentiation of treatment under ss 9 or 10 of the RDA. This would involve recognising aboriginal people as distinct peoples entitled to differential treatment rather than temporary special measures. This distinction is not only significant in law but symbolically would be an enormous development in Australian law. In the native title decision of Western Australia v Commonwealth, the High Court indicated a favourable approach to substantive equality though there is no 'clear precedent' in Australian law.
Indigenous peoples and the United Nations
In addition to the supervisory mechanisms of the United Nations human rights treaties, indigenous peoples may utilize the indigenous specific mechanisms at the United Nations: the Working Group on Indigenous Populations (hereafter 'WGIP'), a Commission on Human Rights open ended, inter-sessional working group (hereafter 'CHR working group') elaborating a Draft Declaration on the rights of indigenous peoples (hereafter 'Draft Declaration'), the Permanent Forum on Indigenous Issues and a Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples.
The Working Group on Indigenous Populations
The Working Group on Indigenous Populations (hereafter 'WGIP') is authorised to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations and secondly to give special attention to the evolution of standards concerning the rights of such populations. It is from within the WGIP that the UN Draft Declaration was conceived and drafted.
United Nations Declaration on the Rights of Indigenous Peoples
The working group has been elaborating a Draft Declaration since 1995. The draft declaration enumerates a number of indigenous rights: self-determination, equality and freedom from adverse discrimination (Articles 1-5); life, integrity and security (Articles 6-11); culture, spirituality and linguistic identity (Articles 12 - 14); education, information and labour rights (Articles 15-18); Development and other economic and social rights (Article 19- 24) Land and resources (Articles 25 - 30) and the exercise of self-determination (Articles 31- 36). Only two articles have been provisionally adopted. The working group has been hampered by state objections to the right to self-determination, collective rights and rights to land and resources.
The United Nations Permanent Forum on Indigenous Issues
The Permanent Forum is an advisory body to the United Nations Economic and Social Council (ECOSOC). The membership of the Forum includes sixteen independent experts, eight of whom are nominated by governments and eight of whom are appointed by the President of the ECOSOC. Members serve the Permanent Form for three years and there is an option for renewal of membership for an additional year. Its primary mandate is to discuss indigenous peoples issues and provide expert advice to the United Nations in the area of economic and social development, culture, the environment, education, health and human rights.
The Special Rapporteur for indigenous issues
The mandate of the Special Rapporteur for indigenous issues' is to collate and exchange information with relevant sources such as Governments, indigenous communities and non-governmental organizations. The Special Rapporteur formulates proposals and recommendations to the CHR for appropriate measures to take in remedying and improving the status of indigenous peoples, their freedoms and human rights.
The importance of international human rights law
While the recommendations, decisions and comments of United Nations treaty bodies cannot force states to change domestic law or policy, the provision of international human rights standards by which indigenous peoples can benchmark their treatment is has great value. Equally important is the process and confirmation of the paucity of rights protections in the Australian legal system. As Professor Larissa Behrendt observes of the international human rights system:
In the absence of rights protection in the constitution, it is the reporting and monitoring mechanisms under international law that have created the most effective method of monitoring human rights in Australia.
It is equally important not to forget that international human rights law has been significant to the successful advocacy for indigenous rights in Australia. Professor Mick Dodson has remarked that:
the Racial Discrimination Act 1975 (Cth), the Land Rights (Northern Territory) Act 1976 (Cth), the High Courts 1992 decision on native title - all of them were firmly grounded in, if not derived from, international law.
The importance of international human rights law in the absence of domestic protections is key to reconciliation in Australia. Reconciliation Australia asserts:
Australia has been an active member of the international community regarding human rights, although it does not have a strong record in the recognition and protection of the rights of Aboriginal and Torres Strait Islander peoples. Those international standards provide a guide in reaching goals in reaching goals of social justice, particularly while Australia does not have a comprehensive human rights framework.
Domestic human rights protections
Australia is a party to hundreds of international agreements including international human rights agreements. There are relatively few international human rights however implemented into domestic law and immediately effective. The International Covenant on the Elimination of All Forms of Racial Discrimination is implemented in the Racial Discrimination Act 1975 (Cth). The Sex Discrimination Act 1984 (Cth) incorporates some of the treaty provisions of the International Convention on the Elimination of All Forms of Discrimination Against Women 1979 into Australian law. The Disability Discrimination Act 1992(Cth) incorporates some provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child into Australian law.
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
The International Covenant on Civil and Political Rights and the Convention on the Rights of the Child are both scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Human Rights and Equal Opportunity Commission (hereafter 'HREOC') was established in 1986 consistent with Australia's ratification of the International Covenant on Civil and Political Rights. HREOC has a complaints mechanism that Australian citizens can use to complain, to a limited extent about violations of the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992(Cth) and the Age Discrimination Act 2004 (Cth) and the two scheduled Acts.
The HREOC is empowered to inquire into 'any act or practice that may be inconsistent with or contrary to any human rights'. However HREOC's processes provide for a remedy that is unenforceable and this has been rightly criticised as 'an inadequate implementation of the obligations under International Covenant on Civil and Political Rights and Convention on the Rights of the Child'. Nevertheless its role is to investigation and attempt to conciliate. If HREOC is unable to resolve the complaint then proceedings can be instituted in the Federal Magistrates Court or the Federal Court of Australia. The International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is not scheduled to Human Rights and Equal Opportunity Commission Act 1986 (Cth) and therefore there is no domestic or international complaints mechanism. The Crimes (Torture) Act 1988 (Cth) does however incorporate aspects of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
International complaints mechanisms
In the absence of effective rights implementation, the international individual complaints mechanism is an important avenue for Australian citizens. Australia has ratified the First Optional Protocol to the International Covenant on Civil and Political Rights and it came into force on 25 December 1991.This gives Australian citizens the right to make complaints of violations under the International Covenant on Civil and Political Rights to the United Nations, Human Rights Committee (hereafter 'HRC'). The HRC's role is to investigation the complaints and to publish the HRC's view on the complaint. For the HRC to consider individual complaints against a state it is important and necessary for the complainant to have exhausted domestic remedies within the Australian legal system. Article 14 of the Racial Discrimination Act 1975 (Cth) allows for individual complaints to the Committee on the Elimination of Racial Discrimination. This came into force in Australia in January 1993. Australian citizens also have access to an individual complaint mechanism under the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment under Article 22 of the Convention. This came into force in January 1993.
