Additional comments from Senator Lidia Thorpe
Structure of additional comments
1. Introduction
2. Summary and recommendations
3. The importance of the United Nations Declaration on the Rights of Indigenous Peoples
a. Status of the declaration in international law
b. Group rights
c. Cultural rights
d. Self-Determination
4. Implementation of the UNDRIP in Australia
a. Government response to Australia’s UNDRIP implementation
b. Criticism of Australia’s UNDRIP implementation
c. Criticism of Australia’s International Human Rights Implementation
5. International experiences of implementing the UNDRIP
a. Canada and British Columbia
b. Aoteoroa
c. Finland
6. Lessons Learnt
a. Political Will
b. Legislative Commitment
c. Justiciability
d. Interaction with Prior Treaties and Legislation
e. Free, Prior and Informed Consent (FPIC)
7. Why enshrine the UNDRIP into law?
a. Uphold International Obligations
b. Guidance for Government
c. Clarity of Free, Prior and Informed Consent
d. Address Inequality
e. Protect and Promote Culture
8. Complementing the UNDRIP
a. Legislative incorporation of UNDRIP must be led by First Peoples
b. Legislative Review
c. Inclusion of UNDRIP in Human Rights (Parliamentary Scrutiny) Act 2011
d. EMRIP Engagement
e. Compliance with 2021 UPR Recommendations
f. Legislate a Human Rights Act
g. Justiciability
h. Treaty
9. Key areas requiring reform to comply with UNDRIP
a. Self-determination
b. Criminal Justice and Child Removals
c. Cultural Rights
Addendum: Implementing the UNDRIP - Case Study - Children’s Ground
1.1I welcome the committee’s report on the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia and wish to thank the committee and the secretariat for conducting the inquiry. I welcome the recommendations put forward by the committee but wish to add to the report itself to centre First Nations voices in particular, and to add to the recommendations put forward, based on the comprehensive evidence received in the course of the inquiry.
1.2The terms of reference of the inquiry are to examine “the international experience of implementing the UNDRIP, options to improve adherence to the principles of UNDRIP in Australia and how implementation of the Uluru Statement from the Heart can support the application of the UNDRIP” and any other related matters.[1]
1.3It is worth noting from the outset of this response to the final report of the Joint Standing Committee, that the inquiry at hand is a distorted version of an original inquiry that I instigated with the introduction of the United Nations Declaration on the Rights of Indigenous Peoples Bill (‘the Bill’) to the Federal Senate on the 29th March 2022.
1.4As stated in the Explanatory Memorandum, the purpose of the Bill is to “address Australia’s lack of UNDRIP’s implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP.”[2]
1.5The Bill proposes three basic legislative responsibilities on the Commonwealth, in summary being that the Commonwealth Government must “take measures to ensure consistency between Commonwealth law and the Declaration” and “prepare and implement an action plan to achieve the objectives of the Declaration” and that the Prime Minister must, each financial year “present a report to each House of the Parliament on the progress of those actions.”[3]
1.6This Bill mirrors recent successful implementation of similar legislation in Canada[4], a jurisdiction with a very similar colonial history. An inquiry into the Bill was undertaken during the 46th Parliament by the Senate Standing Committee on Legal and Constitutional Affairs, ‘Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia’.
1.7That inquiry had a far broader scope than the current one, with the terms of reference including an examination of:
a)the history of Australia’s support for and application of the UNDRIP;
b)the potential to enact the UNDRIP in Australia;
c)international experiences of enacting and enforcing the UNDRIP;
d)legal issues relevant to ensure compliance with the UNDRIP, with or without enacting it;
e)key Australian legislation affected by adherence to the principles of the UNDRIP;
f)Australian federal and state government’s adherence to the principles of the UNDRIP;
g)the track record of Australian Government efforts to improve adherence to theprinciples of UNDRIP;
h)community and stakeholder efforts to ensure the application of UNDRIP principles in Australia;
i)the current and historical systemic and other aspects to take into consideration regarding the rights of First Nations people in Australia; and
j)any other related matters.[5]
1.8The inquiry drew 92 responses, the majority supporting the legislative implementation of the introduced Bill in its full form.
1.9However, this inquiry lapsed with the dissolution of the 46th Parliament, only to be replaced with the current, watered-down and bastardised version which seeks simply to support the current government’s agenda to undermine First Nations’ Sovereignty by assimilating First Peoples into the colonial Constitution and further co-opting our people by way of a powerless ‘Voice to Parliament’.
1.10The colonial agenda in this current inquiry is to convince the public – and First Nations Peoples – that the ‘Voice’ would somehow grant First People the rights that are enshrined in the Declaration. In my position as a Senator and First Nations woman, I strongly reject this flawed attempt to avoid legislating and fully implementing the rights outlined in the UNDRIP. As the referendum result has shown on 12 November, so do the Australian people.
1.11Government submissions to the current inquiry - from the National Indigenous Australians Agency, no less – have attempted to present an argument that the National Agreement on Closing the Gap somehow adheres to the principles of the United Nations Declaration on the Rights of Indigenous Peoples, when we all know the many shortfalls of those attempts and breaches of the principle of Free, Prior and Informed Consent.
1.12Closing the Gap is, and always has been, about addressing fundamental inequalities in basic social indicators of quality of life – soaring incarceration rates, low life expectancy, poorer education and employment outcomes, high rates of out-of-home care. Closing the Gap is not about rights, it is about achieving basic equality outcomes in one of the wealthiest countries on the planet.
1.13For too long First Peoples have been afforded a ‘hand-me-down’ approach to politics, rather than Self-determination.
1.14The Bill I introduced in 2022 seeks to amend this and hold governments to account, and this response – along with supportive evidence from both inquiries – upholds my commitment to the intent of my proposed legislation.
2. Summary and Recommendations
1.15I welcome and endorse the committee’s recommendations as to how to progress the implementation of UNDRIP in Australia, in particular the development of a National Action Plan with this very objective, the pursuit of Truth and Treaty, and the amendment of the Human Rights (Parliamentary Scrutiny) Act 2011 to include the consideration of UNDRIP. These are all very important to further First Peoples rights in this country.
1.16In particular I wish to underline our people’s calls for Truth and Treaty since the day this country was colonised, and that these processes should be delayed no further but need to be pursued immediately. Their compatibility and indeed complementary and beneficial effects on implementing UNDRIP have been clearly outlined in the committee report, and so we may not waste any time in pursuing them alongside each other.
1.17Besides these commendable recommendations, the committee falls short of endorsing a legislative approach to UNDRIP’s implementation in Australia.
1.18This is despite clear evidence provided during the inquiry, from a range of international and domestic human rights experts, governments and First Nations groups, that a legislative approach provides clear advantages over a policy approach to a National Action Plan, which the committee itself acknowledges in the relevant report chapter.
1.19As Mr Warren Dick from the Human Rights Commission stated: ‘If we’re going to say the rights of Indigenous people are important, then we should have a national articulation of that which governments are taken to account to.’[6]
1.20Given that the UNDRIP embodies many human rights principles already protected under international customary and treaty law, and sets the minimum standard of human rights for First Peoples and State Parties’ interactions with their First Peoples, implementing the UNDRIP should be of no concern to any human rights respecting government.
1.21Legislative implementation of the UNDRIP is a fundamental principle of international law and has been recommended by member states of the United Nations. It would provide greater support for, and clarification of, principles such as self-determination and Free, Prior and Informed Consent.
1.22History has shown that implementing the UNDRIP has not been a priority for governments and there has been widespread assessment of Australia’s failure to comply with the principles of the Declaration.
1.23Legislative implementation of the UNDRIP would enhance outcomes in social, political and cultural indicators that consecutive governments have repeatedly failed to address, while ensuring greater accountability of state, territory and federal government and associated portfolios and organisations. It would also prevent racist (and disastrous) legislation such as the 2007 Northern Territory Intervention from occurring in the future. It would provide for a tangible timeframe for the implementation of the Declaration, with the ability for governments to be held accountable for its progression according to it.
1.24Legislative implementation of the UNDRIP would ensure greater protection, promotion and prioritisation of First Peoples rights and ensure that the advancement of First Peoples rights remains the responsibility of any future government, independently of their political leaning.
1.25Policy-based approaches to implementing UNDRIP can result in future governments deprioritising its advancement, leading to significant delays in implementation (as can be seen in the case of Aotearoa/ New Zealand) or is complete abandoning. Given Australia’s colonial history and the ongoing resulting injustices and structural racism, and the lack of even a broader Human Rights framework in this country (contrary to Canada and Aotearoa/ New Zealand) to revert to, this is not a risk we can take as a nation.
Recommendation 1
1.26That the Australian government enshrines the UNDRIP into domestic law.
1.27The committee noted evidence provided that the current legislative framework in Australia does not meet UNDRIP standards and that existing legislation and policies have not been reviewed for their compliance with UNDRIP.
1.28Human Rights experts have indeed repeatedly pointed out Australia’s failure to comply with the principles of UNDRIP. Then UN Special Rapporteur Victoria Tauli-Corpuz, following her visit to Australia in 2017, stated that ‘a comprehensive revision of the policies needs to be a national priority’.[7] In 2010, the Universal Periodic Review of Australia’s human rights record concluded with a recommendation for the government to ‘conduct an audit of its federal legislation for compliance with UNDRIP, specifically mentioning the Racial Discrimination Act 1975.’[8]
1.29The Australian government at the time, however, decided to simply note but not consider further the recommendations put forward, essentially simply ignoring them in an attempt to absolve itself of its responsibilities.
1.30Committee recommendation 3 recommends for any National Action Plan to assess compliance with the UNDRIP across all jurisdictions without further clarifying what this would imply.
1.31Given the many breaches of the principles under UNDRIP an extensive audit of the compliance of all legislation with the UNDRIP, on the Commonwealth as well as state and territory level, should be undertaken, prioritising the audit and reform of the legislation of most significance to First Peoples and most in breach of their rights.
Recommendation 2
1.32That the government progress an audit of existing laws, policies and practice for compliance with the UNDRIP immediately, starting with those most directly concerning First Peoples and breaching their rights.
1.33Free, Prior and Informed Consent (FPIC) is one of the core principles of the UNDRIP and a key prerequisite for colonial government interactions with First Peoples and ensuring their right to Self-determination is upheld.
1.34Article 19 of the Declaration says that:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures affecting them.[9]
1.35Unfortunately, FPIC is also one of UNDRIP’s most disregarded principles. This country has a shocking record of decision-making for and often to the detriment of First Peoples, completely ignoring the principle of FPIC. This manifests in the failure of achieving the Closing the Gap targets, destruction of Country and cultural heritage—without consent of Traditional Owners and often even consultation, to name just a few.
1.36Our people’s right to Self-determination is often proclaimed by governments but rarely followed and a drastic change needs to occur immediately to stop so-called Australia’s violation of the principle of FPIC immediately. This should even be in the government’s own best interest as international and national examples have shown that self-determined solutions are more informed, effective and easier to implement.
Recommendation 3
1.37That the government commit to follow the principle of Free, Prior and Informed Consent in legislation, policy and practice.
1.38The United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 received high levels of support in the original inquiry submissions, from a range of First Nations community and legal organizations, legal experts, interested persons and resources corporations. It would combine important steps towards the implementation of UNDRIP as outlined during this inquiry, such as the development of a National Action Plan, parliamentary accountability and transparency towards its progression, an audit of existing Commonwealth legislation as to its compliance with the principles of UNDRIP as well as ensuring that all future legislation is compliant with it.
Recommendation 4
1.39That the government passes the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022.
1.40Any legislative implementation of the UNDRIP should be complemented with a process by which alleged breaches could seek remedy and there should be an oversight mechanism that ensures governmental and other compliance with the principles and obligations that the UNDRIP would confer on relevant government ministries and related apparatus and institutions, such as police, criminal justice institutions, education, health and welfare.
Recommendation 5
1.41That the government pursue justiciable legal mechanisms to underpin the legislative implementation of the UNDRIP.
1.42The committee observed that UNDRIP is being incorporated into certain policies and programs, but that it is far from being fully implemented or considered across the board and that there is an absence of a coordinated guiding framework.
1.43The government initiated a change of Terms of Reference for this inquiry from the much more comprehensive previous ones focused on the government’s attempt to centre the proposed Voice to Parliament (as per the October 2023 referendum) as their way of progressing the implementation of UNDRIP.
1.44While the committee report is still heavily promoting this approach, international examples of non-binding advice through First Peoples advisory bodies, such as the Sami Parliament, have shown limitations of this approach. Given First Peoples are not the decision makers in this approach, it does not comply with the principle of self-determination. The Finnish Sami Parliament’s request for collaboration with the Finnish Government on the development of a National Action Plan to fully implement UNDRIP has been unsuccessful to date and is a potent example of the limitations of this pathway.
1.45The inquiry made clear that the proposed Constitutional amendment and Voice to Parliament and the National Agreement on Closing the Gap have many shortcomings and are not substitutes for legislative implementation of the United Nations Declaration on the Rights of Indigenous Peoples. There should, however, be increased alignment of Closing the Gap with the principles of UNDRIP, and I welcome committee recommendation 1 to this effect. To further ensure compliance of Closing the Gap with the principles of UNDRIP, I suggest the following:
Recommendation 6
1.46That UNDRIP be incorporated into Closing the Gap implementation plans for each jurisdiction.
1.47Apart from its clear failure to the rights and principles outlined in the UNDRIP, so-called Australia also has a terrifying human rights record, with ongoing breaches on the level of legislation, policies and practice. This record has repeatedly been pointed out by international human rights experts, and has also been highlighted throughout this inquiry.
1.48A comprehensive Commonwealth Human Rights Act would complement the legislative introduction of the UNDRIP and would also serve as a mechanism to protect human rights more broadly, many of which would intersect with the principles of the UNDRIP.
1.49Australia is the only liberal democracy without a Human Rights Act or Charter at the national level. There are few legal protections for the fundamental rights of Australians, which explains why governments have been getting away with breaches for so long.
1.50A justiciable Human Rights Act would complement the legislative implementation of the UNDRIP and possibly provide a framework by which alleged breaches of rights as per the Declaration could seek legal remedy.
Recommendation 7
1.51That a comprehensive Human Rights Act be enshrined in Commonwealth law.
1.52The committee acknowledges the potential benefit of receiving advice on the implementation of UNDRIP in Australia from the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), but falls short of recommending this approach. In the case the government decides against a legislative approach to implementing UNDRIP, this should be prioritised to assist with progressing the implementation through other means, but can also be a beneficial approach under any pathway.
Recommendation 8
1.53That the government invite the Expert Mechanism on the Rights of Indigenous Peoples for a country visit to provide expert advice on processes best adopted in the Australian context.
1.54The UN cannot just provide guidance for the implementation of the UNDRIP through the EMPRIP but also through its Universal Periodic Reviews (UPR).
1.55In 2021, Australia undertook its third UPR during which 122 countries made 344 recommendations. The Australian Government responded to those recommendations, accepting 177 but not accepting 167. It noted recommendations to incorporate the UNDRIP into domestic legislation but stated that it would not consider this further at the time. Not even considering this option is a blatant disregard for international human rights experts and completely undermines Australia’s stated commitment to the UNDRIP.
Recommendation 9
1.56That the Australian Government comply with international recommendations as per the 2021 Universal Periodic Review.
1.57Though the committee report dedicated a chapter on cultural heritage and traditional knowledge protection, it failed to put forward recommendations to address the government’s shortcomings on providing protections for these as based on the evidence received during the inquiry.
1.58Every day, more of our cultural heritage and sacred sites are being destroyed, and with it our traditional knowledge and ability to practice rituals and pass these on to future generations. Following the destruction of the Juukan gorge caves, the Australian parliament undertook an extensive inquiry into heritage protection in Australia, resulting in the Juukan report handed down in October 2021. Besides the urgency to protect our cultural heritage, sacred sites and Country, the government has to date failed to implement even a single of the recommendations of the report and has not even provided a timeline for its implementation.
1.59I therefore propose the following recommendations to specifically progress Australia’s adherence on Articles 11, 12 and 31 of the Declaration:
Recommendation 10
1.60That the government urgently progress the full implementation of the recommendations of the Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia and immediately present a timeline for the implementation.
Recommendation 11
1.61That the government implement the following recommendations from the 2021 report Dhawura Ngilan:
1.62The United Nations Declaration on the Rights of Indigenous Peoples (‘the UNDRIP’) is a landmark piece of international law that was presented to the global community in 2007 after decades of negotiation and development by Indigenous Peoples from around the globe.
1.63Noting that international human rights law largely excluded Indigenous Peoples, efforts were made to bring the UNDRIP into fruition.
1.64UNDRIP is significant given it was—and remains—an initiative developed by and for Indigenous Peoples.
1.65The UNDRIP is both significant and necessary not only to redress the lack of First Peoples representation in international human rights law, but more importantly to use the language and mechanisms of such law to counter both the historical and ongoing impacts of colonisation in respective Indigenous territories and to promote the aspirations and values of Indigenous Peoples globally.
1.66However, rather than creating new rights specifically for Indigenous Peoples, the UNDRIP enshrines existing human rights within an Indigenous context, albeit with a focus on, and consideration for, aspects such as self-determination, cultural rights and the rights of the collective.
1.67Dr Sheryl Lightfoot, Senior Adviser to the President on Indigenous Affairs, University of British Columbia and Vice Chair and Member from North America, United Nations Expert Mechanism on the Rights of Indigenous Peoples, told the Joint Standing Committee:
That's what the declaration is about. It's about taking all of the human rights principles that already exist and putting indigenous context on them. There's nothing extraordinary or special about it. It is in 100 per cent alignment with every other human rights document and instrument. It's strictly the indigenous voice, what the context is for indigenous people, on a global level that also recognises the specificity of the local.[11]
1.68Significantly, Australia was one of the so-called CANZUS cohort – Canada, Australia, New Zealand/ Aotearoa and the United States – to delay endorsing the UNDRIP. All four states are colonial enterprises with significant Indigenous populations and significant historical and contemporary human rights abuses enacted upon First Peoples.
1.69As Ms Sam Klintworth, National Director, Amnesty International Australia, told the Joint Standing Committee:
The United Nations declaration is a product of 25 years of consultation between states and Indigenous peoples, including First Nations peoples in Australia. Over a decade after Australia endorsed the declaration, we have not seen the real actions required to comply with its principles. The systemic breaches of the rights of Aboriginal and Torres Strait Islander peoples are widespread, as evident in the overrepresentation of First Nations children and adults in the criminal justice system, dispossession of their land and resources, policies imposed on their lives without consent or consultation and profound social and economic inequality.[12]
1.70While the Rudd government rectified this in 2009, the UNDRIP has yet to take much more of a formal, legal presence in so-called Australia, as has been undertaken in Canada and as I seek to implement through my Private Members Bill.
1.71However, it is widely considered by almost all submissions and testimonies to both the previous and current federal inquiries into the legislative enshrinement of the UNDRIP to be of benefit to First Peoples and the overall objective of reconciliation in so-called Australia.
1.72As the Hon. Murray Rankin, Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada, told the Joint Standing Committee, with regard to the implementation of the UNDRIP in Canada:
We think the declaration is the cornerstone of our commitment to reconciliation.[13]
1.73While colonial government agencies such as the National Indigenous Australians Agency (NIAA) and the Attorney General’s Office point to vague observations of the ‘principles’ of the UNDRIP, the soaring incarceration rates, deaths in custody, numbers of First Nations children in detention and out-of-home care, the destruction of Country and cultural heritage all point to a failure to observe even the most basic principles of the UNDRIP, being the support of self-determination, application of cultural rights, and the requirement to seek Free, Prior and Informed Consent.
1.74This needs to be rectified.
a. Status of the Declaration in international law
1.75It is my view that the UNDRIP should be enshrined in domestic law and provide a reference for the promotion and application of First Peoples rights, values and aspirations within the legal framework.
1.76Rather than simply an ‘aspirational document’, the United Nations Declaration on the Rights of Indigenous Peoples provides a practical framework by which the ongoing impacts of colonisation on First Nations peoples can be redressed, and their rights and values upheld.
1.77Given Australia’s status as a dualist country, any international law – binding or not – does not give direct effect unless implemented directly into domestic legislation (eg. the 1975 Racial Discrimination Act).
1.78As such, the UNDRIP – even as an ‘aspirational’ Declaration – creates no legally binding obligation on Australia to implement or act upon any of the rights contained therein.
1.79As the ANU state:
The dualistic nature of international law means that, regardless of its status at international law, the UNDRIP will not formally become part of Australian law and so have any domestic effect until it is incorporated into domestic law by legislation.[14]
1.80Unlike other treaties, the UNDRIP – being a declaration – is technically not binding on signatory states. However, arguments are made that the universal values and practical application of the rights contained therein have elevated the UNDRIP into international customary law.
1.81As stated by the Australian Law Council in a previous report by the Australian Law Reform Commission:
The Law Council of Australia has adopted the position that the UNDRIP, whilst lacking the status of a binding treaty, embodies many human rights principles already protected under international customary and treaty law and sets the minimum standards for States Parties’ interactions with the world’s indigenous peoples.[15]
1.82As such, the case against implementing the UNDRIP – as simply being an ‘aspirational’ non-binding declaration – runs contrary to international legal opinion concerning its legal application in domestic jurisdictions.
1.83Further, legislative implementation of the UNDRIP would counter the historical and ongoing breaches of the Declaration’s principles (discussed below). The ongoing breach of First Peoples’ human rights within so-called Australia requires every effort to redress; legislative application of the UNDRIP is central to this.
As stated by Amnesty International in their submission to the current inquiry:
Australia was a founding member of the United Nations and has ratified almost all international human rights instruments. Engagement on Indigenous rights was one of the ten priorities set by Australia during its term at the UN Human Rights Council from 2018-2020. Australia continues to engage with various multilateral human rights engagements to this day. Australia must step up to become a human rights champion by realising its declared commitment to the UNDRIP.[16]
And as further stated by Tony McAvoy, SC, to the same inquiry:
It can't be the case that Australia endorses an international declaration on a matter setting out international norms and then doesn't analyse its legislative base to see whether any of its legislation is consistent. It's a ridiculous situation, in my view. It shows an absence of commitment to the principles.[17]
1.84The UNDRIP is a significant piece of human rights legislation in communicating the rights, values and goals of Indigenous Peoples globally. Further to this, it is the only piece of international human rights law that provides rights to distinct groups of people. Unlike all other human rights law – which grants rights to individuals – the UNDRIP significantly demonstrates the necessity of group rights for Indigenous Peoples. The conferring of group rights reflects the collective cultural values, decision making and ways of being that Indigenous Peoples (generally speaking) adhere to worldwide.
1.85The conferring of group rights is also significant with respect to the devastating impacts that colonisation had on Indigenous Peoples as collectives. Examples of this can be seen in massacres and forced dispossession, right through to concerted governmental efforts to introduce genocidal legislation that aimed to eradicate Indigenous cultures, languages and spiritual connections to Country in the name of forced assimilation.
1.86The significance of group rights in this context cannot be underestimated. The ongoing challenges neo-colonialism poses to First Peoples in so-called Australia continues to undermine and attempt to decimate First Peoples as groups.
1.87Whether it be attacks on Traditional Owner land rights through mining, fracking and other resource exploitation, or the multi-generational incarcerative experiences of Indigenous families, such attacks are still felt by First Peoples as collectives.
1.88This can be seen in UNDRIP Article 1:
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 4 and international human rights law.[18]
1.89And also exemplified by Article 7.2 which states:
Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.[19]
1.90As further stated by the Australian National University First Nations Portfolio in their submission to the current Inquiry:
The UNDRIP is a direct challenge to the marginalisation of Indigenous peoples. Its implementation into Australian law must therefore be aimed at changing the status quo and at making meaningful space for the protection and advancement of the rights of Indigenous peoples. It is a critical matter in the pursuit of a more equitable and harmonious Australia.[20]
…
The Declaration’s very existence is in direct response to the failing of the international system of nation-states to sufficiently protect and promote the rights of Indigenous peoples. It is a tool to change the nature of the relationship between Indigenous peoples and states and to put it on a more equal footing.[21]
1.91As such, the group rights conferred by the UNDRIP are central to redressing these human rights abuses and as such, must be legislated to provide a framework for which such rights can be promoted and supported.
1.92Of further significance to the UNDRIP is the embedding of First Nations’ cultural rights throughout the document as per Articles 11 through 16.
1.93For example, Article 11.1 states:
Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.[22]
1.94Again, this speaks to the development of the declaration by and for, Indigenous Peoples globally, for whom all-of-life is underscored by continuous cultural actions and connections.
1.95The importance of cultural rights within the UNDRIP is paramount to its distinction from other human rights law. Like group rights, cultural rights provide a framework not only for outlining what rights are significant to First Peoples, but also provides a means and methodology by which such rights can be upheld, strengthened and promoted – by valuing and being underpinned by culture.
1.96The important inclusion of cultural rights within the UNDRIP also speaks to the ongoing consequential and devastating impacts of colonisation and neo-colonisation on First Peoples. The historical and ongoing attacks on Indigenous languages, cultural practices and connections to Country have underscored and directly led to the significant human rights abuses experienced by First Peoples, including incarceration, endemic poverty, economic exclusion and a significant inequality in health, wellbeing and life expectancy.
1.97Cultural rights have already been recognised at a state level by human rights charters implemented in Victoria, ACT and Queensland. This has proven to have positive outcomes both as an underlying principle and a justiciable legal factor in the courts. As such, the legislative protection and promotion of cultural rights as per the UNDRIP is a vital component of alleviating such impacts while simultaneously providing a practical framework for protecting and promoting the longest continuous culture on the planet.
d. Self-determination
1.98Another underlying principle of the UNDRIP is the right of self-determination for Indigenous Peoples. This right is expressed through a variety of applications as exemplified by Articles 3, 4 and 5 and also through the right to Free, Prior and Informed Consent (FPIC).
1.99For example, Article 3 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.[23]
1.100The requirement for Self-determination to be a central tenant to any decision making, policy or legislative development in a neo-colonial setting is twofold.
1.101Firstly, Sovereignty was never ceded by First Peoples across what is now known as Australia. No Treaty t or formal handover of land, territories, governorship or control was ever established by the British upon the invasion of the continent.
1.102In fact, upon Cook’s landing that precipitated colonisation, Cook completely disregarded his instructions to seek the ‘consent of the natives’ altogether, and further inconsideration of First Peoples’ 65 000-thousand-year occupancy was maintained by the declaration of terra nullius. As such First Peoples have always had the right to self-determination, and at no point in colonial history was this revoked.
1.103As stated in Gudanji for Country’s submission to the original inquiry:
The most critical right we need to see achieved is that of Self-determination. Wehave never relinquished our right to self-determination - it has been taken from us. It is critical to our existence that our right to self-determination is respected. Only through self-determination can we reclaim control over our existence and repair the damage done over the last two hundred and fifty years. The most important step that we need to take to see this achieved is the formation of Treaties between the Australian government and First Nations (Article 37). Atpresent, we remain unwilling 'wards of the State' - deemed unfit to make decisions for ourselves and incapable of acting upon them. We are not free to ‘determine (our) political status (Article 3)’ nor ‘freely pursue (our) economic, social and cultural development.’ Our laws and customs, formed and practised over millennia, have been cast aside, disregarded. In their place, a paternalistic colonial structure has been imposed upon us.[24]
1.104And as Ms Roj Amedi, Chief Campaigns Officer, GetUp! told the Joint Standing Committee:
I think it's really important to acknowledge that sovereignty by First Nations people hasn't been ceded. Despite ongoing treaty negotiations that are state based, that's something really important to affirm and to acknowledge in all of our work.[25]
1.105As such, legislative enactment of the UNDRIP as per my Bill simply upholds a right to Self-determination that has never been ceded.
1.106Secondly, Self-determination across all areas of policy has proven to have beneficial outcomes in terms of redressing the ongoing harms of colonisation and neo-colonisation. Whether it be in community health programs, youth justice initiatives, economic opportunity and resource and land management, the capacity for First Peoples to make autonomous decisions by and for our own communities has a proven positive impact.
1.107Conversely, government-led initiatives that undermine Self-determination – such as the Northern Territory Intervention and Closing the Gap – have significantly failed in their aims and at worst, devastated communities with yet further trauma.
1.108As such, legislative application of the UNDRIP will not only acknowledge that Sovereignty and therefore the right to Self-determination was never ceded, but will also provide a framework by which government agencies cede control over First Peoples’ affairs to allow for autonomy and improved, self-determined outcomes for Indigenous communities.
1.109As Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, told the Joint Standing Committee:
We are self-determining peoples at the end of the day, as reflected in UNDRIP. Also, as I've said, UNDRIP is the minimum standard of human rights for indigenous peoples; it doesn't create any new rights but is what's already existing in international law. So not having direct say and jurisdiction over our children and other important matters is a direct violation of self-determination.[26]
Ms Sam Klintworth, National Director, Amnesty International Australia, further told the Inquiry:
[H]ow can we ensure that this United Nations Declaration on the Rights of Indigenous Peoples is fully implemented into law, policy and practice to protect the fundamental human rights of First Nations people? We believe that the solution is self-determination. Indeed, the rights of First Nations people to self-determination is foundational to the United Nations declaration, which recognises that, by virtue of the right, Indigenous peoples freely determine their political status and freely pursue their economic, social and cultural development. The declaration further recognises that, in exercising their right to self-determination, Indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs as well as ways and means for financing their autonomous functions.[27]
1.110As per the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022, the proposal has been made to implement the UNDRIP into Australian law with nearly consensus support from submitters to both the original submissions and the current iteration of the inquiry.
1.111While there were deliberate delays to ratifying the UNDRIP after its release in 2007 by then-Prime Minister John Howard (who stated the decision not to sign ‘wasn’t difficult at all’) the Rudd government amended this overt disregard of First Peoples rights in 2009 and ratified the Declaration.
1.112However, since then, no effort has been made to further the Declaration or to implement articles by the Australian government, and with little evidence of application within policy development or other administrative areas.
1.113It is for this reason that I maintain that the original intent of the 2022 Bill as introduced to Parliament be maintained, being to “address Australia’s lack of UNDRIP’s implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP.”
1.114The Australian National University First Nations Portfolio supports this view by stating:
Holistic implementation of the UNDRIP into Australia’s domestic affairs should be seen as fundamental to efforts to substantively recognise and protect the rights of Indigenous peoples in Australia. Comprehensive legislative incorporation of the UNDRIP should therefore be the ultimate aim of the Parliament.[28]
1.115I note the below mentioned submissions to the current inquiry regarding government engagement with the UNDRIP, and provide my responses.
National Indigenous Australians Agency (NIAA)
1.116The NIAA submission does not state conclusively whether or not it supports the legislative implementation of the UNDRIP.
1.117However, they state that the Australian Government supports the principles underlying the UNDRIP, noting:
Australia is only legally bound by the obligations under international human rights treaties to which it is a party. Notwithstanding, the Australian Government supports the principles underlying the UNDRIP, which it recognises as an expression by the international community of respect for the dignity of Indigenous peoples.[29]
1.118I question why the lead government agency for Indigenous Peoples – and who states it works “in genuine partnership to enable the self-determination and aspirations of First Nations communities” and “is committed to improving the lives of all Aboriginal and Torres Strait Islander peoples” would not wholeheartedly and publicly endorse the legislative enactment of the UNDRIP.
1.119In their supplementary submission (responses to questions on notice), the NIAA states that the “United Nations views the UNDRIP as a set of principles to aspire towards, with nations encouraged to work towards the progressive realisation of these rights. The Australian Government views the matters set out in UNDRIP as principles to aspire to.”[30]
1.120However, the nature of the ‘aspirational’ aspect is contested in international law, given that the UNDRIP reflects already existing principles and articles in binding treaties, as applied in an Indigenous context. It does not create new rights in and of itself.
1.121There is also the principle of customary law which binds states to international laws and standards, along with the increased documentation of the UNDRIP being advised to be justiciable law.
1.122As per the Australian National University submission to this inquiry:
The view that the UNDRIP has no binding effect at international law is contested. Although a non-binding instrument, rights set out in the UNDRIP are significant because they generally reflect well-established rights under international law […] The UNDRIP is therefore a non-binding, influential and aspirational statement, and also an instrument that reflects established and binding rules of customary international law.[31]
1.123The two statements below made in the NIAA Supplementary Submission9.1 (responses to questions on notice) are contradictory to almost every other submission which state that Australia could quite easily follow the models of both Canada and Aotearoa/ New Zealand precisely given the similarities all three nations face with regard to the history of, and contemporary impacts resulting from, First Nations- colonial state relationships.
1.124The NIAA stated that:
We note the implementation of UNDRIP for our key international partners, such as New Zealand and Canada, are not easily compared to Australia. The challenges and opportunities faced by other countries are not the same as Australia.[32]
1.125And continues to state that:
Each country has a discrete historical context and distinct compositions of their Indigenous population. These need to be considered when undertaking a consultative process to consider how to most effectively implement programs and policies in line with UNDRIP.[33]
1.126However, nearly every other submission supports the legislative implementation of the UNDRIP with general support of the Canadian model and its suitability in the Australian context.
1.127For example, Tony McAvoy SC stated to the Joint Committee that:
[A]t a structural level, there's no reason why Australia could not introduce a bill similar to that which has been introduced in Canada requiring harmonisation of the laws of the nation with the declaration so that, in circumstances where pieces of legislation have available interpretations to them, the court can then take the interpretation of the legislation which is consistent with the Declaration on the Rights of Indigenous Peoples.[34]
1.128Further, Terri Janke and Company state in their submission:
As prioritised by both the Canadian and New Zealand government, Australia should seek to develop a national action plan to facilitate the implementation of the UNDRIP as a matter of national significance.[35]
Attorney General’s Office
1.129I also note the Attorney General’s Office statement at the Joint Standing Committee which further highlights a non-commitment from the government, rather than any other, to enshrine the UNDRIP into domestic legislation.
1.130Ms Anne Sheehan, First Assistant Secretary, International Law and Human Rights Division, Attorney-General's Department, stated that:
In terms of the application of the UNDRIP in Australia, as the committee is aware, the declaration takes the form of a United Nations General Assembly resolution, which carries both political and moral weight but is not legally binding as an instrument in and of itself. While Australia is not legally bound by the text of the declaration, to some extent the principles in the declaration are reflected in the seven core human rights treaties to which Australia is a party, and those treaties are clearly binding on Australia in international law. As a matter of policy, though, Australia supports the declaration and shares the declaration's underlying commitment to delivering real and lasting improvements for First Nations people and their communities.[36]
1.131However, in response to this, I note the ongoing and regular criticism consecutive Australian governments have faced regarding the the lack of implementation and upholding of the ‘seven core human rights treaties’, and more generally its human rights record, and note that only one treaty has been specifically legislated into domestic legislation, given Australia’s dualist status, being the 1975 Racial Discrimination Act (Cth) as per the International Convention on the Elimination of All Forms of Discrimination (1965).
1.132Further, adherence to the seven core treaties—which arguably Australia fails to do in the first instance—does not create an adherence to the UNDRIP by way of any form of legal relationship, binding or otherwise.
1.133As has been noted elsewhere, the UNDRIP was specifically created not to introduce new rights, but to enshrine those rights in an Indigenous context, reflecting both First Peoples’ values and cultures, and also with specific regard to the collective nature and experience of First peoples subject to colonisation.
1.134Notably, the UNDRIP also provides provisions for collective rights, which other treaties do not. As such, I find the Attorney General’s response disingenuous on a number of points and believe it serves to obfuscate the responsibility of the Australian Government to introduce such legislation.
1.135Further, the argument presented by the Attorney General’s Office does not eliminate the responsibility for the Australian Government to legislate the UNDRIP into domestic law as sui generis law.
1.136This is supported by Terri Janke and Company, who state in their submission to the current Inquiry that:
TJC strongly supports the implementation of the UNDRIP in Australia […] It is a ground-breaking legal instrument that advocates for and protects the rights of Indigenous peoples at an international level, and has the potential to do the same domestically if embedded in the form of sui generis law.[37]
Closing the Gap
1.137I note the NIAA cites the 2019 Partnership Agreement on Closing the Gap Partnership as an example of the principles of the UNDRIP in action, and provides a list of programs as examples they claim to be in adherence with, and support of, the UNDRIP.
1.138However, while the NIAA claims that Closing the Gap is an example of the principles of the UNDRIP in action - in particular Self-determination - there is ample evidence to attest to the failure of the multi-governmental Closing The Gap policy since its inception in 2007.
1.139The consecutive failure of this policy largely rests on the failure to consult adequately with First Nations communities, with even former Prime Minister Scott Morrison acknowledging this in 2020.[38]
1.140In fact, instead of Closing the Gap demonstrating a successful adherence to UNDRIP principles at a government policy level, its ongoing failure actually demonstrates exactly why the UNDRIP needs to be legislated, in particular with respect to Free, Prior and Informed Consent, Self-determination and cultural rights.
1.141The repeated failure of Closing the Gap also illustrates why the proposed Action Plan and other initiatives to improve the UNDRIP implementation as per the 2022 Bill are required.
1.142The Australian Human Rights Commission – in response to the original inquiry – supports this position, and highlights that in the Prime Minister’s Closing the Gap reports of 2010 and 2018, the UNDRIP is only mentioned on two occasions, and has failed to observe First Peoples’ rights to Self-determination.
1.143They state:
Australia has identified the Closing the Gap Strategy as its key policy platform to give effect to the Declaration. However, from 2008 to 2020 the Declaration is mentioned only twice in any of the Prime Ministers’ Closing the Gap Reports (2010 and 2018), in both instances only to note the Government’s endorsement of the Declaration in 2009 […] Furthermore, for most of the period it has been in effect, Closing the Gap has been government-led without significant engagement of indigenous communities in setting priorities or in delivery, an approach clearly inconsistent with First Nations people’s rights to self-determination and to participation in decision-making.[39]
1.144The AHRC further add:
The work of First Nations peaks and the Morrison Government has gone some way towards addressing this through the 2019 National Partnership Agreement on Closing the Gap. In the Commission’s view, the National Partnership Agreement would be further strengthened by the inclusion of references to Australia’s commitments under the Declaration and linkages between the rights contained in the Declaration and Closing the Gap targets and priority reforms.[40]
1.145The University of New South Wales also highlighted the failure of Closing the Gap as an example of Australia’s failure to implement the UNDRIP, stating:
[T]he strategy has significantly failed to engage First Nations communities and enable them to actively contribute to the planning and delivery of the initiative […] Additionally, in the fourteen years since Closing the Gap was adopted, only two out of seven targets were on track to be met. This has contributed to Australia’s poor track record in implementing the UNDRIP, and it has limited the ability for First Nations peoples to exercise basic rights that they deserve to have.[41]
1.146Further, it is my view that the Closing the Gap policy largely aims to simply reduce the vast inequalities experienced by First Peoples as a consequence of historical and ongoing colonisation (hence the use of the term ‘gap’). The policy was never in and of itself designed to ensure First Peoples’ rights as granted under international law; as such, it is my view that it is disingenuous for the government to misrepresent efforts to simply provide First Peoples with the same quality of life, health, education and opportunity as everyone else.
1.147As has been already highlighted, Australia - along with Aotearoa/ New Zealand, Canada and the United States - initially refused to endorse the UNDRIP in 2007, ostensibly with what they perceived to be the problematic aspect of Self-determination. In fact, then Prime Minister John Howard stated at the time that what he referred to as ‘customary law’ would not be granted precedence over Australia’s domestic jurisdiction via the UNDRIP’s endorsement, a legal impossibility given that the UNDRIP is not binding in any sense, internationally or domestically.[42]
1.148That same government oversaw the greatest breach of UNDRIP principles in Australia’s recent history via the Northern Territory Emergency Response suite of legislation. NTER – as it became known – flagrantly and blatantly ignored consecutive articles enshrined in the Declaration, with the government even suspending the 1975 Racial Discrimination Act in order to implement racist laws severely impacting First Peoples.
1.149In their submission to the original inquiry, Dr. Shelly Bielefeld, Senior Lecturer, Griffith Law School, notes the ongoing negative impacts the NTER and Stronger Futures policies had on First Nations communities.
“Lengthy colonial power dynamics have resulted in an Australian Indigenous policymaking approach where laws and policies have often been pre-determined by government and then presented to First Nations Peoples as a fait accompli. For example, this occurred with the 2007 Northern Territory Emergency Response, and the lack of consultation and negotiation with Northern Territory Indigenous Elders and communities has been criticised in the strongest terms, as has the trauma, shame, and stigma inflicted through this policy. The impacts of the Intervention are still being carried by First Peoples in the Northern Territory under the successor policy framework – Stronger Futures. This too must be addressed in order for UNDRIP to be adhered to – as destroying self-determination through NTER styled Stronger Futures measures will not create a better or stronger future for those subject to such laws and policies.”[43]
1.150NTER was criticised by then-Special Rapporteur on Indigenous Rights James Anaya as he concluded a visit in 2009, stating:
In my view, the Northern Territory Emergency Response is not. In my opinion, as currently configured and carried out, the Emergency Response is incompatible with Australia’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, treaties to which Australia is a party, as well as incompatible with the Declaration on the Rights of Indigenous Peoples, to which Australia has affirmed its support.[44]
1.151I note that, while the Labor government under Kevin Rudd endorsed the UNDRIP in 2009, it was the Labor government under Julia Gillard that continued the NTER legislation under the new guise of the 2012 ‘Stronger Futures’ legislation. More than 10 years later, the continued soaring of First Peoples’ incarceration rates and deaths in custody demonstrates once again the abject failure of government policy and only serves to provide more weight to the argument to legislatively implement the UNDRIP to finally ensure our people’s rights are being respected.
Criticism from First Nations communities and organisations
1.152Submissions to both inquiries from First Nations communities and organisations highlighted the lack of UNDRIP implementation being a direct influencer of the inequalities and ongoing colonial oppression and control experienced by First Peoples. Some of the key concerns highlighted were the over-incarceration of First Nations children, young people and adults; the high rates of First Nations children in out-of-home care; lack of control and consultation in resource extraction and land rights; lack of Treaty; and a general lack of cultural consideration and consultation in all other areas of First Peoples’ lives, including health, economics, education, language and ways of living, being and doing.
1.153Mr Yingiya Guyula MLA, states in their submission:
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a statement that gives voice to Indigenous peoples identity, and our right to be who we are. It is a powerful document that protects our rights to our culture, our language, our law, our way of life. In this way, it is a powerful document for all Australians because it provides guidelines about how to protect the diversity of First Nations cultures that exist across the country. Our cultures should be seen in the light of our strength and gifts that we have, something that should be fought for and protected because it is unique and magnificent, and despite all the disadvantage, oppression, assimilation, murder and hatred we have faced and still face - we are still here in 2022.[45]
1.154Also highlighted was the failure to adequately address and redress so-called Australia’s historical and ongoing genocidal impacts, including the assimilation policies that created the Stolen Generations, the forced dispossession of land and the ongoing ramifications seen in intergenerational trauma, and multi-generational experiences and impacts of poverty and incarceration.
1.155The submission by Gudanji for Country to the original inquiry highlights some of these key areas:
“Articles 7 and 8 reference our right to “liberty” and the right “not to be subjected to forced assimilation or destruction of (our) culture”. Our nation's history (Australia) clearly defines our failure to meet all the components of Article 7. The genocide of First Nations across this country is Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia well documented, although its true magnitude may never be known. Additionally, our history of Stolen Generations of children continues to this day. Our "liberty" was taken two hundred and fifty years ago and has not been returned to us. We continue to see ourselves over-represented in our nation's prisons and youth detention centres and our people continue to die in police custody. It is hoped that, through a return to self-determination, our First Nations will be able to take back our liberty.”[46]
1.156The Healing Foundation also highlighted the nexus between UNDRIP implementation and redress for survivors of the Stolen Generations and their families, stating:
The UNDRIP represented hope upon its development, but its failure to be implemented in Australia in a way which responds to, and supports healing has been identified by Stolen Generations survivors as a barrier to effective healing, and the perpetuating of harm. They are owed dignity and healing, and a promise that future generations will be freer of trauma.[47]
Criticism from Legal Experts and the United Nations
1.157Submissions to both inquiries from legal and other experts also highlighted the failure of consecutive Australian governments to implement or adhere to principles enshrined in the UNDRIP.
1.158The University of New South Wales notes the hypocrisy of ongoing Australian ‘pledges’ to implement the UNDRIP in the international arena while subsequently failing to do so:
In international forums, the Australian Government has pledged to take steps to implement UNDRIP and enhance First Nations Australians’ enjoyment of their rights. However, the Australian Federal and State governments have failed to follow through on these promises; the principles of UNDRIP have not been implemented into domestic law, policy and practice, and existing laws and policies have not been reviewed for compliance with the declaration. The Australian Government has also failed to negotiate a National Action Plan to implement UNDRIP in consultation with First Nations peoples.[48]
1.159The Australian Human Rights Commission notes that Australia has voluntarily accepted the UNDRIP and as such, has a duty and obligation to uphold the principles enshrined therein:
“The Declaration specifically requires that ‘[s]tates, in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration’. This is the standard that Australia has voluntarily accepted, and which it should stand by.”[49]
1.160The AHRC declares Australia’s non-compliance at an international level, highlighting that at Australia's second Universal Periodic Review (UPR) in 2015, nine recommendations were made by UN member states relating specifically to the Declaration. Of these, only four were accepted:
“The five recommendations that would have required the Government to commit to tangible outcomes, including a national strategy to implement the Declaration, were all noted and rejected […] Likewise, the 2017 report of the UN Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz highlighted major insufficiencies in Australia's approach, noted the inconsistency in Australia's agreement to the World Conference on Indigenous Peoples Outcome Document and its subsequent rejection of the UPR recommendation to commit to a national strategy to implement the Declaration.”[50]
1.161This clearly demonstrates the Australian government’s unwillingness to actually progress its adherence with UNDRIP and completely undermines its verbal statements of commitment to it.
1.162As stated by United Nations’ Special Rapporteur on Indigenous Rights James Anaya in 2009:
I would like to reiterate the importance of the United Nations Declaration on the Rights of Indigenous Peoples for framing and evaluating legislation, policies, and actions that affect the Aboriginal and Torres Strait Islanders Peoples. The Declaration expresses the global consensus on the rights of indigenous peoples and corresponding state obligations on the basis of universal human rights. I recommend that the Government undertake a comprehensive review of all its legislation, policies, and programmes that affect Aboriginal and Torres Strait Islanders in light of the Declaration.[51]
1.163It is my belief that this call to action – made nearly 15 years ago by no less than a representative of the United Nations - be finally implemented.
1.164Along with the criticism of Australia’s implementation (or lack thereof) of the UNDRIP in both inquiries, consecutive Australian governments have also received widespread criticism for the ongoing failure to implement and uphold a suite of other international human rights obligations.
1.165In its submission to the original inquiry, the University of New South Wales summed up Australia’s dismal track record of human rights, describing it as ‘exceptionally mediocre.’
“Australia, in particular, has an exceptionally mediocre track record in relation to compliance with international treaties. This is despite the fact that Australia is a signatory to all core UN human rights treaties. As of 2021, Australia has received 344 recommendations from 122 countries to improve its human rights record; and of the mere 177 that have been accepted, few have seen full implementation. Such shortcomings, as evident in the present submission, have been especially conspicuous in failure of successive Australian governments to adequately adhere to the provisions laid out in UNDRIP.”[52]
1.166To exemplify this, at the recent Universal Periodic Review in January 2021, member states criticised Australia’s treatment of asylum seekers and questioned why incarceration rates of First Nations people remain so high.
1.167Human Rights Watch reported that “more than 40 nations questioned Australia’s policies toward asylum seekers and refugees, from Brazil to Germany, South Korea to the US. Among the concerns raised was Australia’s continued use of offshore processing and prolonged detention for asylum seekers.”[53]
1.168They further reported that “several countries raised Australia’s continued failure to reduce the significant over-representation of Indigenous Australians in the criminal justice system. Other concerns raised included the severe inequality experienced by Australia’s First Nations people.”[54]
1.169Human Rights Watch also noted that twenty-seven countries urged Australia to raise the minimum age of criminal responsibility, noting that the UN Committee on the Rights of the Child recommends that countries increase their minimum age of criminal responsibility to at least 14.[55]
1.170And in 2022, theUnited Nations Human Rights Committee found that Australia has failed to adequately protect Torres Strait Islanders against adverse impacts of climate change, thereby violating their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home.[56]
1.171It is my view that the failure to adequately adhere to or implement the principles enshrined in the UNDRIP is a governmental pattern of colonial control and abuse that continues to target First Peoples, and other marginalised and criminalised groups such as asylum seekers and refugees and seriously breaches international law on a regular basis.
1.172This is not simply my own view, but by the United Nations as an international and legal organisation supported by the views of Australia’s contemporaries in the form of member states.
a. Canada and British Columbia[57]
1.173Initially voting against the Declaration, the Canadian Government has since changed their position, and have legislated the UNDRIP in both federal and provincial jurisdictions.
1.174In 1982, s 35 was added to the Canadian Constitution, affirming existing rights and treaty rights of First Nations peoples. In addition, the Canadian First Nations peoples have a national representative voice, established in 1985, which comprises 630 First Nations communities who meet to set national policy in relation to Indigenous rights.
1.175These constitutional mechanisms were established prior to the signing of the UNDRIP, yet provide a strong foundation for the Declaration’s recognition in Canadian law, in particular – as noted by the Australian National University in their submission to the original Inquiry, Articles 1[58] and 18.[59]
1.176Despite the provision of s 35 of the Canadian Constitution, there was a lack of political will to recognise the UNDRIP in domestic law following Canada’s signing of the Declaration in 2010 with the assertion that s 35 of the Constitution would serve to fulfil the principles of the UNDRIP.
1.177However, recent legislative reform in Canada has occurred at the provincial and federal level, reflected in the Declaration on the Rights of Indigenous Peoples Act in British Colombia and the United Nations Declaration on the Rights of Indigenous Peoples Act at the federal level.
1.178The former was developed in collaboration with the First Nations Leadership Council and passed in November 2019, with unanimous approval from all political parties. The Federal Act followed the British Columbia Act, and was developed at the Assembly of First Nations, achieving royal assent in June 2021.
1.179Both Acts serve primarily to formally recognise the UNDRIP in domestic law and map out actions to implement the Declaration’s provisions. In particular, they require the respective governments to implement an Action Plan in consultation and cooperation with Indigenous peoples and to take all measures necessary to ensure that their laws are consistent with the Declaration.
1.180The British Colombian Act and the Federal Act implement Article 38 of the UNDRIP, which establishes the manner in which nation states may seek to implement the Declaration:
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this declaration.
1.181Much critique surrounding the British Colombia and Federal Acts draws on the fact that neither Act provides any kind of enforcement mechanism for Indigenous peoples, and in this way, they serve more as symbolic instruments rather than having significant legal impact.
1.182However, it is important to note that the incorporation of the UNDRIP into Canadian law is considered to alter regulatory and administrative processes by putting into practice the engagement of First Nations people’s participation.
1.183Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, stated to the current inquiry:
I think the bill is good because it does have 'teeth'—as I'll call them—because of the requirement to align all policies and legislation in Canada with the declaration, keeping in mind that the declaration is the minimum standard of human rights for indigenous peoples. So it is very much calibrated here in Canada.[60]
1.184Ms Celeste Haldane, Chief Commissioner, British Columbia Treaty Commission, also stated:
It is a framework for reconciliation. If you have the underpinnings of a constitution as well as legislation then it continues to enshrine that framework for reconciliation and how to move rights recognition forwards, particularly looking at all of Australia.[61]
1.185Particularly heartening to hear from the Canadian witnesses in the course of the hearings in this inquiry was the account of progress made since the UNDRIP had been enshrined into law, and how this very fact had sped up its implementation more than any previous efforts had. This in and of itself is an incredibly strong testimony to the value of legislating the UNDRIP domestically.
b. Aoteoroa[62]
1.186In 2007, Australia and Aotearoa/ New Zealand/ were two of the four countries to vote against adopting the Declaration. In 2009-2010, both Australia and New Zealand/ Aotearoa changed their position and announced support for the Declaration.
1.187Aotearoa/ New Zealand/ has since committed to undertake measures to implement the UNDRIP with the Māori calling for a monitoring plan to check the implementation of the Declaration into domestic law.
1.188In 2014, the National Iwi Chairs Forum established an Independent Monitoring Mechanism to monitor and report annually to the United Nations Expert Mechanism on the Rights of Indigenous Peoples in Geneva. In 2016, the Te Puni Kōkiri agency found that while progress towards the aspirations of the Declaration were happening across government, there was no definite line between the activities and the commitment to the Declaration.
1.189This would lead the development of a National Plan of Action for New Zealand’s progression towards the objectives of the UNDRIP with the Agency noting that the Declaration plan would provide an opportunity to establish a coherent delivery of the Declaration across government.
1.190In March 2019, Cabinet approved a process to develop a Declaration plan and in June 2021, the next steps for developing a declaration that included a partnership with leaders of Te Minita Whanaketanga Māori, Pou Tikanga of the National Iwi Chairs Forum and the Human Rights Commission to work together to create and operate a program to engage Māori perspectives on their objectives in a Declaration plan.
1.191In April 2022, feedback from Māori groups, consisting of 69 workshops and 370 participants, prompted publication of a draft Declaration plan. Three concepts were considered: inamata (looking back), onamata (the present) and anamata (looking forward).
1.192These concepts allowed for the responders to reflect on their experiences of Self-determination, equality, culture and access to land and resources. The groups were also asked what they would do to realise Maori rights to Self-determination, land, culture and equality if they had control of the resources and ability to take decisive action. The groups were further asked what they believe the actions of the government should be to support Indigenous peoples rights to exercise Self-determination, culture, and equality.
1.193The summary features of this engagement process for monitoring the Declaration plan were to consider Indigenous international frameworks; for Indigenous groups to lead the implementations independent of government; for legislated reporting from government to include the impact on Indigenous families; measuring collective, family and environmental wellbeing; and to monitor establishment and resources of the Maori authority and institutions.
1.194The next step is drafting an official plan in partnership with Te Puni Kōkiri, the National Iwi Chairs Forum’s Pou Tikanga and the Human Rights Commission, originally due by the end of 2022, to then be consulted on widely with the broader Aotearoa/ New Zealand society.
1.195However, the Declaration Plan development has been put on hold by the government, apparently due to it being a too political and possibly too progressive issue to pursue at the time.[63]
1.196The Australian National University states that “the draft Declaration plan has already provided a clear pathway to monitor New Zealand’s commitment to the Declaration and can produce meaningful outcomes for the Declaration’s aspirations.”[64]
1.197However, the lack of legislative obligation to progress UNDRIP’s implementation can be seen as a factor in it being stalled, once again underlining the importance of legislating the Declaration domestically to ensure it can effectively be implemented and government’s being held to account to this extent.
1.198Professor Claire Charters, Te Kaunihera Maori o Aotearoa, New Zealand Maori Council, stated to the current inquiry:
The biggest development in Aotearoa has been the decision by the New Zealand government, in around 2018, to develop a national plan of action to implement the declaration. That process has now been paused but went on for a number of years. It included bringing the UN Expert Mechanism on the Rights of Indigenous Peoples out to Aotearoa, New Zealand, to provide guidance in the early days on how to go about developing the national plan of action. It included the establishment of an expert working group to provide advice to the government and then it included the negotiations, on the national plan of action itself, proper […] [T]he structure for developing that national plan of action was quite unique. It involved having five national Iwi chairs, leaders at the governance level, sitting alongside four ministers in partnership. That is quite new, to have cabinet members working in partnership, with the idea that one couldn't veto the other, together to develop that plan. The whole structure, from there on down, emulated that in the sense that the steering committee—I was the National Iwi Chairs' representative on the steering committee. There was a government senior official and a senior person from the Human Rights Commission. And then we had our working people. I want to highlight that structure, because I do think that that's unique and evidences a genuine partnership in that approach.[65]
1.199While Finland has not incorporated the UNDRIP directly into domestic legislation, the principles of the Declaration are enacted by way of the Sami Parliament, which represents Finland’s Indigenous peoples, the Sami. However, the Sami Parliament has made the request to the Finnish government to enact a National Action Plan similar to Canada and that which informs my Private Senator’s Bill and within their testimony to the current inquiry, it was noted there were ongoing negotiations with the Finnish government on the issue of Self-determination and Free, Prior and Informed Consent.
1.200The Sami Parliament is a self-governing body of the Sami, and its purpose is to plan and implement a cultural Self-government. It is quarantined by the Constitution of Finland to the Sami as Indigenous peoples. This parliament is the supreme political body of the Sami in Finland. Its 21 members and four deputies are elected from among the Sami every four years. Within this there is also the Skolt Sami community, which is its own small group within the Sami.
1.201Further, there is cooperation between the various Indigenous groups within the Nordic states, being Sweden, Norway and Finland (and to a certain extent, Russia). This transnational cooperation ensures that decision making impacting Indigenous peoples is being discussed, given the delineation of Indigenous groups with respect to international state borders.
1.202Importantly, the decisions of the Sami Parliament are not binding on the Finnish government. Instead, as Mr Juuso, President of the Sami Parliament, told the current inquiry, “[t]he Sami Parliament's role is to represent the Sami independently of the government. The government has an obligation to negotiate in all far-reaching matters that might touch on the Sami, and those specificities have been set down in the Sami Parliament Act.”[66]
1.203Finland voted in favour of the adaptation of the United Nations Declaration on the Rights of Indigenous Peoples and in 2014 reaffirmed its commitment to pursue the objectives of the Declaration by adopting the outcome document of the World Conference on Indigenous Peoples, without any reservations.
1.204The Sami Parliament has, however, urged Finland to develop, in collaboration with the Sami Parliament, a National Action Plan for implementation of the Declaration. This includes discussion and definition of Self-determination and Free, Prior and Informed Consent.
1.205As Mr Tuomas Aslak Juuso, President, Sami Parliament, Finland, stated to the current inquiry:
In this kind of context, our initial plan has been that specific paragraphs of the declaration would be looked at together with the government of Finland, in order to find out where we are actually implementing the declaration and where we still have challenges. Especially, maybe in the last 10 years, the right to self-determination, which is the core element in the declaration, has been one of those priority discussions here on the Finnish side: how it is implemented or if there has been a lack of implementation.[67]
1.206He also stated:
Free, prior and informed consent is considered to be identified in the process of the Sami Parliament negotiating together with the government, but there are also some matters that perhaps may not be in the most recent interpretations of 'free, prior and informed consent' or at least may not be in line with that.[68]
1.207Ms Johanna Suurpaa, Director General, Department for Democracy and Public Law, Finland, also told the Committee:
The new proposal that is currently in the parliament would improve the extent of issues on which the rights to free, prior and informed consent would apply. Again, in this sense we have read carefully what the declaration has to say on the principle of FPIC. We don't see it as a total veto right that should be stated. That is also part of the new proposal: not a total veto right, but a far-reaching right in terms of negotiations that are bona fide and where the idea is to reach consensus and to have the approval of the Sami Parliament before moving forward. So that is the idea; it is very much based on the UNDRIP, the declaration […] So it's a lens through which we interpret our current legislation; shall I put it this way. Because it's not more concrete than this, I do not have a specific answer to how we measure the economic and social rights impacts.[69]
1.208The request for preparation of a National Action Plan has so far not been heeded, and is a clear example of the shortfalls of relying solely on representative bodies limited to providing non-binding advice. Even the advice of preparing a National Action Plan has been disregarded, undermining the very concept of First Peoples’ right to Self-determination and further underlining the advantages of ensuring implementation of the UNDRIP via a legislative approach.
6. Lessons learnt
1.209It is clear from the international and domestic experience with the UNDRIP – since inception – that government accountability has not been subject to international obligations that the Declaration imposes, but the will of the colonial state government to enact it in some legislative (or other) form.
1.210The Australian Human Rights Commission noted this with frankness in their submission to the original inquiry:
The primary barrier against the enaction of the Declaration in Australia to date has not been any unassailable legal or constitutional issues associated with domestic implementation, it has been a lack of political will.[70]
1.211As such, it is the irony of international law—especially that impacting marginalised and criminalised peoples such as First Peoples in Australia and abroad—that it is the government who is both the regular breacher of rights but yet tasked with the responsibility of upholding and implementing those same rights; it is like asking the jailkeeper to grant one’s freedom.
1.212That so-called Australia’s engagement with the UNDRIP has been subject to political will – and not bipartisan international obligation – is evidenced by the original non-commitment of the Howard Government to sign, alongside Labor’s inaction on the Declaration during its intermittent tenures since signing in 2009.
1.213The process of implementing the UNDRIP in Canada, Aotearoa/ New Zealand and Finland have all been evidently subject to the same impetus (or lack thereof) of their colonial governments.
1.214This is the same in this very country. Successive governments in so-called Australia’s recent history have ignored multiple reports, royal commissions, inquiries and recommendations with the net result of the ongoing inequality and oppression experienced by First Peoples, as evidence in the soaring incarceration of our people, ongoing intergenerational trauma, multigenerational carceral experiences, poor health and low life expectancy and endemic poverty and discrimination.
1.215Some of these key reports that have been ignored by successive Commonwealth and State governments are:
There are, of course, many, many more.
1.216As Ms Kacey Teerman, Associate Campaigner, Indigenous Rights, Amnesty International Australia, stated to the current inquiry:
“First Nations people need to lead this work. They were instrumental in making UNDRIP. When you don't let First Nations people lead work about our own communities, it fails. You can see that across every single area—health, education, everything. For the government to do this properly, it needs to be led by First Nations people. They need to be assured that it will be implemented in a meaningful way that isn't at the whim of government.”[71]
1.217As such, the greatest barrier to legislatively enshrining the UNDRIP – and therefore, bestowing the benefits of the Declaration on First Nations peoples – ultimately rests with the government. As such, along with many submitters and witnesses to both inquiries concerning this matter, I once again call for action on the proposed 2022 Bill.
1.218While legislating the UNDRIP into Commonwealth law is the first step, there is also a requirement and commitment from governments to follow up with the actions required UNDRIP and any related responsibilities this confers.
1.219The international experience also demonstrates the contested discourse around the legislative commitment of the UNDRIP. It is worth clarifying the intent of Canada’s federal example, being the United Nations Declaration on the Rights of Indigenous Peoples Act 2021 (Canada):
This Act requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to:
Starting in 2017, every single ministry of our government committed to take certain actions to achieve the lofty goals of the declaration. We consider it a framework. We consider it to be central. Let me just tell you a little bit about that. It's not a long statute. Our drafting convention is to incorporate as a schedule the declaration itself as part of our law. The number of sections that actually precede that are few in number, but one of the key ones is section three of our statute. That mandates the government to take, 'all measures necessary to ensure the laws of British Columbia are consistent with the declaration'.[73]
1.225And Dr Sheryl Lightfoot also added:
[I]t is in behaviour and expectations where I see the biggest change. I can't even emphasise the profound shift that has occurred over these past eight years. Government now just knows they need to speak with us before they move forward. Sometimes I would say they verge on over-consultation—more than indigenous peoples have capacity for—but I would prefer that to ignoring us completely, because we can participate as we have capacity, and we can spread the responsibility around […] We have more conversation and more dialogue than ever before.[74]
1.226In both instances of Canada and Aotearoa/ New Zealand, neither has enacted justiciable pathways with respect to implementing the UNDRIP. Meaning, there are no legal remedies equivalent to the courts, which could hold the right to remedy if a person or group had alleged that their rights as per the UNDRIP were violated.
1.227In Canada, The Federal government has implemented the UNDRIP into legislation to ensure laws uphold the rights enshrined in the Declaration and have also begun assessing pre-dated legislation. As such, the Declaration itself is not legally binding in Canada.
1.228In Aotearoa/ New Zealand, the government has yet to legislate the UNDRIP, as further discussions continue. However, noting that in both jurisdictions, legal action on the UNDRIP sits within the context of the Declaration being a ‘framework’ for legislative consideration, consultation and review, and not a justiciable law unto itself.
1.229Dr Sheryl Lightfoot from Canada stated to the current inquiry:
To sum it up, I would say: [legislative implementation of the UNDRIP is] the beginnings of a successful model. The legislation sets out a framework—and the federal legislation mirrors very much our provincial legislation, because our provincial one came first in time, and, at the federal level, it took several rounds of attempts before we actually got there. It sets out a pathway for implementation and cooperation between government and indigenous peoples, and I think it's the cooperation and the improved communication and a changed relationship, actually, where I see the most traction right now.[75]
1.230The Federation of Victorian Traditional Owner Corporations notes the following regarding justiciability of the UNDRIP if implemented in the Australian context:
Whether the entirety of the UNDRIP could be adopted as justiciable, or whether it is more appropriate to only adopt some specific rights is a matter for negotiations. However, by way of example, a treaty could include provisions stating that Traditional Owner groups have a positive and justiciable right to:
If these rights were adopted in this manner, it would mean that the government had an obligation to ensure their implementation. If they failed to adequately act to meet this obligation, they could be taken to court, and an order made forcing them to carry out the appropriate actions.[76]
1.231In both the Canadian and Aotearoa/ New Zealand contexts, pre-existing treaties and legislative recognition played a part in affirming support for the implementation of the UNDRIP domestically. Both nations have pre-existing treaties between First Peoples and the colonial government, while Canada has had existing federal acknowledgement of First Peoples (as outlined above) in s 35 of the Constitution.
1.232In Aotearoa/ New Zealand, Te Tiriti o Waitangi (Treaty of Waitangi) plays an important role via the Waitangi Tribunal – and also philosophically and constitutionally. In this regard - similar to Canada – historical and contemporary treaty obligations already play a large part in determining the relationship between First Peoples and government, with or without legal recognition of the UNDRIP.
1.233However, Te Tiriti o Waitangi also allows for Sovereignty and Self-determination; however, these aspects are not recognised by government (the Māori language version has been contested in this regard). It is also not constitutionally enshrined, so while a fundamental document, is constantly breached, often without legal remedy.
1.234As such, while both nations have pre-existing treaties and other forms of recognition, these are not considered to be substitutes for the implementation of the UNDRIP.
1.235Ms Koren Marriot, Acting Director and General Counsel, Legislative and International Policy Unit, Aboriginal Law Centre, Department of Justice, Canada, stated to the current committee:
In Canada, we have a bit of an advantage in that self-determination has been part of the conversation in negotiating modern treaties, so we already have that in our framework a little bit.[77]
1.236Mr Mark Smith, General Counsel and Director of Process, British Columbia Treaty Commission stated:
“I would say that having UNDRIP in Canada has had quicker progress, more progress, in terms of change with the relationship with indigenous peoples here. I think our constitution, from 1982, has a specific section, section 35, around aboriginal rights. Although that's a very positive part of our constitution, I would say things have moved much quicker since the adoption of the UN declaration and in the legislation in Canada and in British Columbia. I think it's a valuable mechanism to advance rights and keep everyone focused on these important issues.”[78]
1.237The Australian National University notes that there have been concerns around the implications of enacting the UNDRIP, frequently driven by the idea that the Declaration provides Indigenous peoples with rights that other people do not also enjoy. Of particular concern is the inclusion of a requirement for ‘Free, Prior and Informed Consent’ of Indigenous peoples in relation to a number of provisions in the Declaration.
1.238One such example is Article 19:
States shall consult and cooperate in good faith with the Indigenous people concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
1.239This provision has been criticised as establishing a ‘veto’ power, particularly over resource development projects.
1.240Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, told the current inquiry:
When we were advocating for UNDRIP implementation, there were myths that stood in the way as obstacles. For example, in the declaration, there is 'free, prior and informed consent' and there were a lot of myths surrounding that: 'What does that look like?' or 'Oh, my goodness, resource development is going to be obstructed now,' and that sort of thing. There's a lot to 'free, prior and informed consent' and I love talking about it; but, essentially, at the end of the day, it just means that indigenous peoples, like anyone else in the world, can say 'yes', 'no' or 'yes, with conditions' when it comes to their land.[79]
1.241However, it has been identified in the Canadian context as analogous to other types of relations we see between governments, who work together through a range of mechanisms in order to ensure that the autonomy of both governments is respected.
1.242Article 19 is, like all other provisions in the Declaration, subject to the same balancing provisions and must be interpreted in this light. In this way, FPIC encapsulates First Peoples’ inherent right to Self-determination.
1.243Ms Lisa Smith also stated:
I think [free, prior and informed content is] a live concern to opponents of UNDRIP. I haven't been plugged into that sort of opposition since the bill has been passed, but prior to the bill being passed I heard it loud and clear. And obviously that's free, prior and informed consent. I'll tell you one myth. I think people who were opposing UNDRIP were afraid of FPIC—the myth being that they invented a word that you don't see in UNDRIP anywhere. They kept saying, 'It's a veto. It's a veto.' They kept using that word over and over again. I think it caused some panic in the public. I would often say, 'Look, "veto" doesn't appear anywhere in UNDRIP.' It was like a scare tactic[80]
1.244Ms Celeste Haldane, Chief Commissioner, British Columbia Treaty Commission also stated to the committee:
One of the substantive changes that has transpired, particularly in the provincial legislation—so the BC the government legislation—is the notion of how to obtain and reach consent. We have new models of consent agreement for resource development that is specifically enshrined in the provincial UN declaration legislation. I think that's a really important factor. When we're looking at the conversation and the responsibilities under free, prior and informed consent, this is how they're legislating and ensuring that there are proper mechanisms for that relationship and partnership to be built so we can have sustainable economic development transpiring in indigenous communities.[81]
1.245FPIC is indeed one of the core principles of the UNDRIP and essential to the right to Self-determination. It is questionable how governments can proclaim supporting Self-determination without at the same time committing to FPIC.
1.246How FPIC is being implemented, however, has taken many forms and there are various approaches. The Declaration does not specifically spell out what it looks like, and neither does my Private Senator’s Bill. This is specifically intended so as not to scare the government off from implementing the UNDRIP and provide the space for it and the practices to fulfill it to be established in a process guided by First Nations people, in close engagement with the government, guided by the very principle itself.
1.247Both the original inquiry into legislating the UNDRIP, and the current inquiry have drawn widespread support from First Nations’ communities and organisations, and non-Indigenous legal experts, for implementing the UNDRIP in legislation.
1.248As proposed in the 2022 Bill, this would, in short, confer legal responsibility on the Commonwealth Government to:
1Take measures to ensure consistency between Commonwealth laws and the Declaration; and
2Prepare and implement an action plan to achieve the objectives of the Declaration.
1.249With a further responsibility for the Prime Minister to, each financial year, present a report to each House of the Parliament on the progress of those actions.[82]
1.250This proposal is almost identical to that which has been implemented in Canada.
1.251As has been discussed elsewhere, upholding international law – whether a declaration or convention – is a fundamental responsibility of signatory states.
1.252As stated within the Declaration itself:
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration (Article 38).[83]
1.253It has been repeatedly made clear by the deluge of submissions made to both inquiries on this matter that consecutive governments have failed to implement even the most basic principles of the UNDRIP.
1.254As Terri Janke and Company submitted to the current inquiry:
Despite the increasing recognition of and compliance with UNDRIP principles and standards across government and business sectors in Australia, the Federal Government has failed other than in a piecemeal way to implement these rights into Australian law thus denying Indigenous peoples clear and binding recognition and remedies. This must change as a matter of priority.[84]
1.255And as highlighted by the Australian National University First Nations Portfolio:
The Declaration’s very existence is in direct response to the failing of the international system of nation-states to sufficiently protect and promote the rights of Indigenous peoples. It is a tool to change the nature of the relationship between Indigenous peoples and states and to put it on a more equal footing.[85]
1.256Legislating the UNDRIP at a Commonwealth level would bring Australia in line with other comparative jurisdiction as per its responsibilities to uphold and protect the rights of Indigenous peoples, as well as act upon repeated criticism and recommendations from the international community to uphold its obligations therein.
1.257As further stated by the Australian National University First Nations Portfolio:
“The UNDRIP is a direct challenge to the marginalisation of Indigenous peoples. Its implementation into Australian law must therefore be aimed at changing the status quo and at making meaningful space for the protection and advancement of the rights of Indigenous peoples. It is a critical matter in the pursuit of a more equitable and harmonious Australia.”[86]
1.258It is my strong belief in this instance that legislating the UNDRIP is not optional for this colonial government, but an international and domestic responsibility.
1.259As has been outlined previously in this report, the UNDRIP is more than an ‘aspirational’ declaration and if legislated, can provide government agencies and the public sector with a defined methodology of respecting First Peoples’ rights, cultures and values.
1.260The Hon. Murray Rankin, Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada, in the current inquiry, spoke about the importance of the legislative requirement of the UNDRIP in Canada:
Starting in 2017, every single ministry of our government committed to take certain actions to achieve the lofty goals of the declaration. We consider it a framework. We consider it to be central.[87]
1.261He further stated:
For example, would we bring in enabling legislation that would contemplate a global approach to legislation that would be changed to change the statutory decision-makers or make space for indigenous leadership to share in decision making or to have a consent based decision-making process. This is something that is engaging us as we speak”[88]
1.262Submissions to both inquiries also highlighted the need for government to better understand, and engage with, the UNDRIP as an underlying principle for legislative development and policy creation, in particular with respect to First Peoples’ right of self-determination at all levels of government.
1.263Mr Rodney Dillon, Indigenous Rights Adviser, Amnesty International Australia, stated:
We've got problems with the three levels of government not even understanding what the declaration is even about. I dare say that there would be very few councillors at the local council level who would even have heard of the UNDRIP. I think we have a lot of education to do at a state level and at a local level […] I think that is an area that this group needs to look at—how we educate the three levels of government when they are making law to look at the declaration and see what they can do that is in there, be it self-determination or free prior and informed consent.[89]
1.264This necessity is no more exemplified than by the example of Closing the Gap, which as discussed previously in this report, rather than being an example of Self-determination – as touted by various government agencies – is exactly the opposite. Closing the Gap – along with other government-led policy disasters such as the Northern Territory Intervention and Labour’s thinly disguised iteration of the same ‘Stronger Futures’ has been repeatedly criticised for undermining Indigenous Self-determination, widely cited as the basis for their repeated failure.
1.265Further, rather than granting First Peoples new rights or the right to veto, legislative implementation of the UNDRIP would instead clarify and establish a framework for contested areas such as FPIC, in particular with regard to resource extraction and the inadequacy of current Native Title legislation.
1.266Ms Anyupa Butcher, First Nations Justice Senior Campaigner at GetUp!, stated to the current inquiry:
Our laws are inadequate to deal with free prior and informed consent. There's a principle under international law that Indigenous people should have the right to consent or refuse consent to resource the development of their land. There are various international clan pools where this principle has been adopted. The absence of a veto right at the production phase of any onshore shale gas development means that Australia's land rights act falls short of implementing the principles of free prior and informed consent.[90] =
An RMIT university study published in March 2021 found that numerous top mining companies failed to implement international human rights conventions when negotiating with First Nations people over land use and have failed to adequately obtain consent from traditional owners for some projects. The report concludes that they are able to do so because Australia's native title and land rights laws don't require companies to gain free prior and informed consent from traditional land owners. We believe that we need a review of the Native Title Act and ensure that any new cultural heritage laws are underpinned by the principle of free prior and informed consent and veto powers.[91]
1.267The Victorian Aboriginal Legal Service (VALS) notes three aspects of FPIC that should be utilised to craft a definition:
Free – consent sought must be free from coercion, intimidation and manipulation. Prior – consent must be sought sufficiently in advance of any authorisation or commencement of the relevant activity. Respect must be shown to time requirements of Indigenous consulting and consensus. Informed – the provision of information to Indigenous communities covers a range of aspects. This includes the nature and scope of any proposed project or activity, the purpose and duration of the project or activity, what will be affected by the project or activity, an assessment of the impacts and potential risks, and procedures the project or activity may entail.[92]
1.268In their submission to the current inquiry, even Woodside Energy, as a potential major project proponent, supports both the legislative implementation of the UNDRIP and subsequent clarity with respect to FPIC in their submission to the current inquiry.
“Woodside supports greater clarity in Australian law to support the implementation of the principles of UNDRIP and, in particular the application of, Free Prior and Informed Consent (FPIC) processes […] Legal clarity on this matter is necessary to ensure communities understand their rights and companies understand and demonstrate compliance with their obligations under UNDRIP […] In Woodside’s view, the scope of the application of UNDRIP in Australia would benefit from additional clarity in the following key areas:
1.269As has been outlined in numerous submissions to both inquiries and summarised elsewhere in this report, the UNDRIP provides the principles with which to address the inequalities experienced by First Peoples that are a direct result of ongoing colonisation.
1.270Successive government-led policies such as Closing the Gap, and the complete refusal to amend criminal justice laws such as raising the age of criminal responsibility, have exacerbated these inequalities, along with the persistent societal and structural racism and prejudice experienced by First Peoples on a daily basis.
1.271The UNDRIP highlights the necessity to address these inequalities, stating:
Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.
1.272The principles of the UNDRIP - developed by First Peoples internationally, often with similar experiences - are therefore designed to provide a platform to combat these inequalities. For example, the right to Self-determination and FPIC, and the right to maintain and practice culture.
1.273These are not simply ‘aspirational’ principles, but when fully supported, are proven to have beneficial outcomes for First Peoples and thereby society as a whole.
1.274The UNDRIP cites numerous articles relating to the promotion and protection of the diverse cultures of First Peoples. This is both with respect to the contemporary manifestation of cultural practices, values and responsibilities, but also with consideration to the attempted destruction and eradication of First Peoples’ cultures due to colonial legislation, policies and practices.
1.275The impacts of colonisation on First Peoples’ cultures within so-called Australia are still being felt. Whether it is with respect to the lack of Indigenous languages that are spoken on a daily basis – around 150 down from an estimated 700 prior to colonisation – to the denial of access to family, culture and cultural responsibilities experienced by adults, children and young people who are incarcerated, the threat of cultural decimation is still a reality for First Peoples.
1.276For example, Article 8.1 of the UNDRIP states that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.”[94]
1.277These ongoing connections have been further severed with the destruction of consecutive assimilation policies, which aimed to bring about the destruction of First Peoples’ identities and deep family connections. The impacts of this are still being felt through intergenerational trauma and multi-generational child removals.
1.278Article 13 states:
1Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
2States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.[95]
1.279Further, the severing of our children, young people and adults from their families, cultures and spiritual connections due to incarceration is also a threat to First Peoples’ cultural rights. This denies our people access to culture which also serves as a protective factor from recidivism.
1.280The Western Australian Commissioner for Children and Young People highlighted this in their submission to the original inquiry, noting this is also addressed in the UNDRIP Articles 9, 12, 13 and 14. They stated:
Culture is fundamental to the lives of Aboriginal children and young people, and central to their wellbeing. There is significant evidence that highlights the positive association between culture and wellbeing amongst Aboriginal people1 including across areas such as health, education and employment. Aboriginal children and young people who have a strong sense of identity and can make positive statements about themselves are better equipped to learn life skills and are more likely to experience positive wellbeing. Culture can also act as a protective factor that can reduce exposure to, and the effects of, risks to personal wellbeing. Aboriginal people have commonly identified their culture as a factor that builds resilience, moderates the impact of stressful circumstances and supports recovery from adversity.[96]
1.281The ACT Human Rights Commission also stated in their submission to the same inquiry:
[The ] value and significance of Aboriginal cultural rights is well documented. The Expert Mechanism on the Rights of Indigenous Peoples highlighted in its Study on the role of languages and cultures in the promotion and protection of the rights and identity of Indigenous peoples that 'languages and cultures will only flourish in environments when they are more broadly respected in their own right and for their contribution to an understanding of humanity'.[97]
1.282Cultural values and connections to land are also threatened by ongoing resource extraction and land use, as evidenced with thedisastrous destruction of the Juukan Gorge Caves and attempts to store nuclear waste on our lands. These are, of course, not new colonial excursions; the acquisition of our lands and waters has been a key objective driving ongoing colonisation, whether it be the false declaration of terra nullius in an attempt to justify the Crown pilfering an entire continent to nuclear testing that occurred on the lands of the Maralinga Tjarutja (MT) andAnangu PitjantjatjaraYunkunytjatjara (APY). The forcible acquisition of First Peoples’ lands has in many cases meant a severing of our cultural and spiritual connections.
1.283Article 25 states:
“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”[98]
1.284In this regard, the Australian Nuclear Free Alliance submission to the original inquiry stated:
The cards are heavily stacked against concerned Aboriginal people who would prefer to see no uranium mining on their country. The inequity found in the relationship between mining companies and Indigenous communities is further compounded by the limited rights afforded to Aboriginal people in relation to developments on traditional lands and estate.”[99]
1.285The UNDRIP aims to address these impacts, and ensure that such cultural attacks are discontinued, alleviated and redressed. These cultural rights are not fully protected under current Australian legislation – neither state nor Commonwealth – which provides further impetus for the UNDRIP to be legislated.
1.286As mentioned previously, almost all submissions to both the current and previous inquiry advocated that the UNDRIP be implemented into legislation as per my 2022 Bill.
1.287Almost all submissions supported the governmental requirement as per the Bill to develop an Action Plan and for legal onus to be placed upon successive governments for annual reporting.
1.288For example, the University of New South Wales Law Society supports the 2022 Bill, stating:
“There is wide scope for UNDRIP to be enacted in Australia. A promising means of doing so is by passing the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (the Bill), introduced by Senator Lidia Thorpe on 29 March 2022. The Bill provides a framework for implementing UNDRIP into domestic law. If passed, the Bill would compel the Federal Government to take measures to ensure consistency between Commonwealth laws and UNDRIP, and prepare and implement a national action plan to achieve the obligations prescribed by UNDRIP. In addition, the Prime Minister would be obligated to present an annual report to each House of Parliament on the progress of these actions. In essence, this Bill would impose more stringent requirements on the Commonwealth Government regarding its law and policy approach to meeting its obligations under UNDRIP.”[100]
1.289In particular, a number of submissions highlighted that, as per the principles of the UNDRIP itself, this process should be led by First Peoples.
1.290For example, the Victorian Aboriginal Child Care Agency stated in their submission to the original inquiry:
“VACCA calls on state and federal governments in Australia to commit to the meaningful implementation of UNDRIP into legislation and policy, through a process designed and monitored by Aboriginal communities.”[101]
1.291Further, the Victorian Aboriginal Legal Service stated in the original inquiry that:
“The Federal Government should pass legislation to implement UNDRIP in Australia. Legislation implementing UNDRIP must:
a)Enshrine the right of Aboriginal and Torres Strait Islander peoples and communities to self-determination, as defined under UNDRIP
b)Establish a clear pathway for implementing UNDRIP in Australia, including through a National Action Plan that is developed with Aboriginal communities and Aboriginal Community Controlled Organisations (ACCOs).[102]
1.292Many submissions noted the requirement for a legislative review (or audit) of all state, territory and federal legislation as per the principles of the UNDRIP, with particular emphasis on legislation relating directly to, and impacting, First Nations communities.
1.293Change the Record, for example, highlighted that:
“[A] comprehensive audit should be undertaken of the non/compliance of federal legislation and legislative instruments, policy and federal department and agency practices with the rights contained in UNDRIP. The audit should identify inconsistencies with UNDRIP that give rise to human rights breaches, gaps in legislative and policy frameworks resulting in inadequate protection of the individual and collective rights of First Nations peoples, and priorities for reform.”[103]
1.294Change the Record also note that this approach was taken in Victoria with respect to the Charter of Human Rights and Responsibilities, and the United Kingdom, prior to implementing their Human Rights Act.[104]
1.295The Western Australian Commissioner for Children and Young People supports this proposal, stating:
I strongly encourage governments to undertake an evaluation of the current extent to which UNDRIP articles have been implemented in their jurisdiction, develop actions plans to address identified shortcomings, and commit the necessary resources to fulfilling the requirements of the Declaration.[105]
1.296The Castan Centre for Human Rights Law noted the following priority areas for legislative review, stating that the following Commonwealth legislation “demands urgent attention with reference to UNDRIP principles.”:
And also State legislation concerning the following matters:
1.300It is my view that along with legislating the UNDRIP directly into domestic Commonwealth law – as per the proposed 2022 Bill – the Declaration should also be incorporated into the existing framework of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), and I very much welcome the committee having come to the same conclusion.
1.301Noting that the Act aims to examine existing legislation for compliance with the seven core human rights treaties to which Australia is a party[109], and given the immense direct relevance the UNDRIP has to the Australian legal, social, political and cultural landscape, this too should be incorporated.
1.302The ACT Human Rights Commission supports this recommendation, stating in their submission to the original inquiry:
Ideally the new Federal Government would pick up work started with the National Human Rights Consultation to introduce a national bill of rights for Australia that could incorporate direct protections not only of the rights realised in UNDRIP but other civil, political, economic, social and cultural rights set out in treaties to which Australia is a party. In the interim, amending the definition of ‘human rights’ to incorporate the UNDRIP under the Human Rights (Parliamentary Scrutiny) Act 2011 would be one simple way of realising UNDRIP through the scrutiny of federal Australian laws.[110]
1.303Emeritus Professor Jon Altman from the School of Regulation and Global Governance at the Australian National University, supports this proposal in their submission to the original inquiry, stating:
As an early first step the Human Rights (Parliamentary Scrutiny) Act 2011 should be amended by adding UNDRIP in its definition of human rights. This proposal is consistent with a recommendation already made by the Australian Human Rights Commission in late 2021 as an element of Australia’s third Universal Periodic Review.[111]
1.304As noted by Altman above, the Australian Human Rights Commission has previously endorsed the proposal to include the UNDRIP in the Parliamentary Scrutiny Act. The AHRC stated:
When new legislation is introduced to federal Parliament, it must have a statement of compatibility with human rights – defined as the rights in the 7 instruments that Australia has ratified. This does not include reference to compliance with the UNDRIP.[112]
1.305The AHRC also noted the past failure of the Closing the Gap policy to adequately implement the UNDRIP, although noting the revised efforts to do so:
Australia has identified the Closing the Gap Strategy as its key policy platform to give effect to the Declaration. To date, this process has been government led without significant engagement of indigenous communities in setting priorities or in delivery. Australian Governments have committed to address this through the 2019 National Partnership Agreement on Closing the Gap which involves the Coalition of Aboriginal and Torres Strait Islander Peak Bodies as partners and decision makers.[113]
1.306However, despite this, the AHRC recommends that:
“[The Australian] Government develop a national program to implement UNDRIP and schedule it to the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).”[114]
1.307I note that the Aotearoa/ New Zealand example demonstrates direct engagement with the UN Expert Mechanism on the Rights of Indigenous Peoples, in particular on the development of a National Plan of Action to better implement and act upon the UNDRIP.
1.308Professor Claire Charters, Te Kaunihera Maori o Aotearoa, New Zealand Maori Council stated to the joint committee:
The biggest development in Aotearoa has been the decision by the New Zealand government, in around 2018, to develop a national plan of action to implement the declaration. That process has now been paused but went on for a number of years. It included bringing the UN Expert Mechanism on the Rights of Indigenous Peoples out to Aotearoa, New Zealand, to provide guidance in the early days on how to go about developing the national plan of action. It included the establishment of an expert working group to provide advice to the government and then it included the negotiations, on the national plan of action itself, proper.[115]
1.309I am disappointed that, while the committee acknowledges the value of the involvement of EMRIP in its report, it falls short of recommending it as an action to progress UNDRIP’s implementation in this country.
1.310It is therefore my recommendation that the Australian Government – via the Australian Human Rights Commission – extend a similar invitation to the EMRIP to begin the process of advice and development of implementing UNDRIP into legislation as per the proposed 2022 Bill. This engagement work should be led by First Peoples to ensure the principle of Self-determination as per the UNDRIP is adhered to.
1.311I further recommend that along with the proposed amendments as per the 2022 Bill, the Australian Government comply with international recommendations as per the recent (and previous) Universal Periodic Review(s).
1.312In 2021, Australia undertook its third UPR during which 122 countries made 344 recommendations.
1.313A large proportion of these recommendations related directly to FirstPeoples, and included reform concerning the age of criminal responsibility, incarceration, legislative discrimination, adherence to Self-determination and participation in government.
1.314The Human Rights Law Centre noted the Australian Governmentresponded to those recommendations,accepting177but not accepting167, stating that “[r]aising the age of criminal responsibility was a standout issue in the review, however the Australian Government rejected recommendations from 30 countries to raise the age above 10.”[116]
1.315With direct reference to the terms of this report, the Australian Government noted recommendations to incorporate the UNDRIP into domestic legislation but stated it “will not consider further at this time” (being January 2021).[117]
1.316These recommendations were:
1.319Alongside the legislative implementation of the UNDRIP, t a comprehensive Human Rights Act should be implemented in Commonwealth law. This would follow and reflect recent state initiatives in Victoria[123], the ACT[124] and Queensland[125], all who have introduced human rights law in some form in recent years.
1.320These Acts protect the cultural and other rights of First Peoples, among the suite of legislation pertaining to all other citizens.
1.321A comprehensive Commonwealth Human Rights Act would complement the legislative introduction of the UNDRIP and would also serve as a mechanism to protect human rights more broadly, many of which would intersect with the principles of the UNDRIP.
1.322The University of New South Wales Law Society notes the lack of protection of human rights more generally within Australian legislation, and also specifically for First Nations peoples, stating in their submission to the original inquiry:
In the absence of a comprehensive and legally binding Bill of Rights, the upholding of human rights in Australia is limited to legislation and a narrow and inadequate set of constitutional provisions. Within the Australian Constitution, there are a mere five human rights that are expressly enshrined, none of which sufficiently protect First Nations freedomsand interests.[126]
1.323The Australian Human Rights Commission recently released a proposed model for such an Act, noting that “Australia is the only liberal democracy that does not have an act or charter of rights at the national level, and there are currently very few legal protections for the fundamental rights of Australians.”[127]
1.324The Commission further stated that the “Human Rights Act proposal is detailed in acomprehensive position paper. In this model,people with human rights complaints could endeavour to reach a solution through conciliation or administrative appeal, supported by the Commission, and then refer the matter to the Federal Court.”[128]
1.325I strongly believe a justiciable Human Rights Act would complement the legislative implementation of the UNDRIP and possibly provide a framework by which alleged breaches of rights as per the Declaration could seek legal remedy. As such, I support the introduction of the proposed Act as a complimentary – not substitute – piece of legislation alongside my proposed Private Senator’s Bill.
1.326Submissions to the inquiries raised the issue of justiciability of implementation of UNDRIP into legislation.
1.327For example, the University of NSW Law Society stated:
In light of Australia’s historical failures in upholding First Nations rights and in applying UNDRIP, it is necessary that an independent statutory body is created to ensure current and future compliance. This will allow for present laws and policies to be placed under objective scrutiny and critique, as well as for the continued development of new initiatives to improve Australia’s observance of UNDRIP. The effectiveness of this approach is well exemplified by existing independent agencies like the Independent Commission Against Corruption (ICAC) in NSW, which has seen great success in ensuring compliance with anti-corruption laws.A similar commission responsible for overseeing the upholding of First Nations rights, if granted coercive power and federal jurisdiction,would likely see significant improvements in Australia’s adherence to the principles of UNDRIP.[129]
1.328Furthermore, Dr. Shelly Bielefeld, Senior Lecturer, Griffith Law School, recommended that “the Federal Government allow remedies for violations of UNDRIP to beawarded by Australian Courts - including reparation for laws, policies andprograms that have been found to violate the principle of 'free, prior andinformed consent' under article 19.”[130]
1.329It is my view that any legislative implementation of the UNDRIP should be complemented with a process by which alleged breaches could seek remedy and there be an oversight mechanism that ensures governmental and other compliance with the principles and obligations that the UNDRIP would confer on relevant government ministries and related apparatus and institutions, such as police, criminal justice institutions, education, health and welfare.
1.330Our people have long fought for a nationwide Treaty process between the government and First Peoples as a matter or urgency priority and the only real pathway for society to move forward. A comprehensive Treaty would complement the legislative implementation of the UNDRIP and further enshrine the principles contained therein within Treaty negotiations and agreements.
1.331The Federation of Victorian Traditional Owner Corporations supports the view of Treaty being complementary to legislative implementation of the UNDRIP, and notes that such a process would also ensure a mechanism for justiciability.
1.332They recommended that UNDRIP rights should be included as enforceable and justiciable rights within future treaties, “with the treaty terms (particularly those that transfer decision making and revenue generating power) as the minimum obligations of the Government.”[131]
1.333In their submission to the original inquiry, the Federation state that:
“[B]y way of example, a treaty could include provisions stating that Traditional Owner groups have a positive and justiciable right to:
If these rights were adopted in this manner, it would mean that the government had an obligation to ensure their implementation. If they failed to adequately act to meet this obligation, they could be taken to court, and an order made forcing them to carry out the appropriate actions.”[132]
1.334Treaty and the UNDRIP are complementary. They are not mutually exclusive, nor are they an either/or option, but together make up a rights-based approach that would ensure greater protection of our rights to First Peoples, and begin to redress the ongoing impacts of colonisation.
1.335While submissions and testimonies to both inquiries expectedly had diverse views on priority reforms, some key areas were highlighted as being of particular concern. A short summary of these includes, but is not limited to, the following:
1.336The right to Self-determination was highlighted in the majority of submissions and testimonies. One of the key underlying principles of the UNDRIP (in particular, Articles 3, 4 and 5), the right to Self-determination was recognised as being key to ensuring rights-based equality for First Peoples, as well as for guiding successful, community-led initiatives.
1.337The Victorian Aboriginal Legal Service, in their submission to the original inquiry, notes the following definition of Self-determination. They state:
“Many experts, in Australia and internationally, agree that there are three key elements of self-determination:
Incorporating UNDRIP into domestic law would go some way to addressing and redressing these injustices and preventing similar injustices in the future. It would require governments to recognise the foundational importance of self-determination to the rights of First Nations peoples, and to actively promote and support self-determination when developing and implementing policy and law.[134]
1.339They further stated that:
The lack of government support for self-determination in development, implementation and evaluation of policy affecting Aboriginal and Torres Strait Islander peoples. First Nations peoples in Australia are systematically denied the decision-making power and resources needed to collectively determine their own affairs and futures.[135]
1.340The Victorian Aboriginal Child Care Agency also noted the link between Self-determination and better outcomes for First Peoples, particularly within the area of rights and justice:
“The existing political and legal structures will continue to limit what might be possible in protecting the right to self-determination in Australia and will require a transformation of existing power structures resulting in a more equitable power sharing between Aboriginal peoples and the state. At both Commonwealth and State levels of government substantive constitutional and legislative change is needed, along with policy initiatives to reduce levels of disadvantage and strengthen the capacity of Aboriginal peoples to participate as self-determining peoples. Cultural and legislative changes are also needed to reduce the limitations inherent in the judicial system to increase the capacity of the courts to address the rights of Aboriginal people.”[136]
1.341Yet many submissions noted the lack of recognition of Self-determination by government with the acute observation that legislative implementation of the UNDRIP would address this damaging oversight.
1.342The WA Commissioner for Children and Young People stated:
Rather than Aboriginal communities being 'engaged' or 'consulted' as 'advisors' or 'codesigners' of services and policies, they must be authorised and empowered to own, direct and make strategic decisions about policies, funding and allocation of resources, program and service design, implementation and evaluation.” Governments must therefore begin a process of decentralising power and transferring responsibility to Aboriginal people and communities. This will enable Aboriginal children and young people, their families and their communities to lead the development and implementation of fit-for-purpose, culturally appropriate solutions and build the capacity of local communities to improve the wellbeing of Aboriginal children and young people.[137]
1.343An important factor in ensuring Self-determination is complied with is the adherence to FPIC.
1.344The VALS submission noted:
There are three elements of FPIC:
Proper adherence to UNDRIP principles would see FPIC rights incorporated in the Native Title Act 1993 and (re-)strengthened in the Aboriginal Land Rights (NT) Act 1976 as well as in State land rights laws (especially in South Australia in regional land rights laws over the extensive Pitjantjatjara and Maralinga lands). Such adherence would not only provide landowners greater control over development of their lands and territories, but also a more equitable bargaining position in dealing with more powerful commercial and state interests. An issue that would require resolution is how FPIC rights would be exercised on lands where non-exclusive native title has been determined.[139]
1.347Further to this, it was noted on numerous occasions that Native Title legislation currently does not adequately protect the right to Free, Prior and Informed consent.
1.348The National Native Title Council noted in this respect:
Substantial reforms are needed to the native title system to bring it in line with the Declaration and the central right of self-determination. Various features of the native title system currently undermine this fundamental right by failing to put native title holders on an equal footing with government and the private sector.[140]
1.349They NNTC further noted:
“The requirement of FPIC should be central to all native title agreements and negotiations and needs to be legislated into the NTA and other related legislation. FPIC is a key part of the Declaration and is contained in no less than six articles, the strongest articulation being in Article 32 which states that governments must obtain the free and informed consent of Indigenous peoples prior to the approval of any project that affects their lands or territories and other resources.”[141]
1.350Submissions also highlighted the ongoing criminalisation of First Peoples, in particular their incarceration rates being the highest of any people in the world. Many submissions noted the continued human rights breaches criminalised and incarcerated First Nations people experienced, including (but not limited to) solitary confinement amounting to torture, the psychological impacts on children and young people, cultural disconnections exacerbated by experiences of incarceration, and deaths in custody.
1.351Change the Record noted that:
“First Nations peoples’ social, economic and cultural rights under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are not being upheld or protected by Commonwealth, state or territory law and systems. Evidence of this is widespread in:
Afford autonomy and the right to govern to First Nations communities to support vulnerable children through evidence-based Justice Reinvestment initiatives that are led by the communities. Instead of failed punitive approaches, these initiatives embrace therapeutic and rehabilitative methods like diversion programs that address the underlying causes of problematic behaviour in children.[143]
1.356AIA also recognised the intersection of other international human rights treaties and implementation tools such as OPCAT that coincide with the UNDRIP as well as the necessity for Australia to raise the age of criminal responsibility in line with United Nations’ recommendations, stating there should be “a consistent, national approach to raise the minimum age of criminal responsibility to at least 14 years old in all jurisdictions, without carve-outs for children under this age.”[144]
1.357Many submissions noted the need to uphold cultural rights as an underlying principle as enshrined in the UNDRIP. This included across a number of themes, including the need for increased access to language programs, greater recognition of cultural rights as part of land rights and resource negotiations, and the important role of access to culture for children and young people experiencing detention and/ or out-of-home care.
1.358The Western Australian Commissioner for Children and Young People noted in their submission to the original inquiry:
Culture is fundamental to the lives of Aboriginal children and young people, and central to their wellbeing. There is significant evidence that highlights the positive associations between culture and wellbeing amongst Aboriginal people including across areas such as health, education and employment. Aboriginal children and young people who have a strong sense of identity and can make positive statements about themselves are better equipped to learn life skills and are more likely to experience positive wellbeing. Culture can also act as a protective factor that can reduce exposure to, and the effects of, risks to personal wellbeing. Aboriginal people have commonly identified their culture as a factor that builds resilience, moderates the impact of stressful circumstances and supports recovery from adversity.[145]
1.359They further noted:
A critical issue impacting Western Australian Aboriginal children and young people is a lack of sustainable Aboriginal-led solutions. The over-representation of Aboriginal children in all indicators of disadvantage continues to highlight the need for more effective ways of working to address the underpinning issues and improve the wellbeing of Aboriginal children and young people across the State.[146]
1.360Noting that cultural rights are a central right underpinning the UNDRIP, submissions also highlighted the protective factors strong culture has for First Peoples experiencing marginalisation and criminalisation. Implementation of, and adherence to, the cultural rights as per the UNDRIP would be of benefit to redressing the inequalities experienced by Aboriginal and Torres Strait Islander peoples across a range of social indicators.
1.361First Languages Australia highlighted the importance of language in their submission to the original inquiry:
Having one's mother tongue gives social, emotional, employment, cognitive and health advantages. Bilingualism provides yet another layer of advantage for minority language speakers. Keeping the mother tongue and then mastering English for example, provides minority language speakers with the advantage of being able to operate in different contexts. This increases their life chances and employment options. To achieve these benefits it is imperative that the revival, maintenance and development of Aboriginal and Torres Strait Islander languages is supported.[147]
1.362As highlighted in these additional comments, two of the fundamental principles of the rights enshrined in the UNDRIP are Self-determination and the prioritisation, promotion and protection of Indigenous cultures and cultural practices.
1.363While these are emphasised as fundamental rights within the paradigm of international law, these are also highlighted as operating in interaction with each other because of the evidence that, when First Poeples are afforded the capacity for self-determined solutions, successful outcomes are achieved.
1.364Self-determination and cultural capacity are not simply ‘aspirational’ rights, but concrete principles which lead to positive outcomes.
1.365This was highlighted in the Australian Government Productivity Commission’s report ‘Overcoming Indigenous Disadvantage’ in 2020:
Connection to culture is a key element of many Aboriginal and Torres Strait Islander people’s identities. As such, cultures are a key source of strength and a foundation on which the wellbeing of Aboriginal and Torres Strait Islander people can continue to be built.[148]
1.366The report further stated that:
Improving outcomes for Aboriginal and Torres Strait Islander people requires enabling Aboriginal and Torres Strait Islander people to share in making decisions on things that affect them. Aboriginal and Torres Strait Islander community involvement in policy, program and service design, and decision-making — a ‘bottom-up’ rather than ‘top-down’ approach — is important to ‘drive real change on the ground’, and close the gap in life outcomes between Aboriginal and Torres Strait Islander people and non-Indigenous people. When [Indigenous people] make their own decisions about what development approaches to take, they consistently out-perform [non-Indigenous] decision makers.[149]
1.367The case study of Children’s Ground exemplifies the effectiveness of First Peoples’-led solutions based on the principles of the UNDRIP.Children’s Ground is a “First Nations systems solution to empower children and communities to achieve social, cultural and economic agency and lifelong wellbeing”[150] that operate on the principles of prioritising First Peoples’ Self-determination and culture.
1.368They state:
Children’s Ground was created to change the status quo - to implement a system that recognises First Nations governance, solutions and systems of knowledge. First Nations community leaders know these solutions but hold little political power.[151]
1.369Children’s Ground specifically cites the UNDRIP as an underlying principle for their education program engagement with children.
1.370For example, the organisation seeks to “provide the space for Elders and cultural leaders to revitalise and re-establish learning, language and cultural knowledge systems within and outside of formal early learning sessions. This is consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).”[152]
1.371M.K. Turner, OAM, Arrernte Professor, Elder and Law Woman Ampe-kenhe Ahelhe Director Children’s Ground, highlights the importance of self-governance in the organisation’s recent annual report:
We’ve been following government nearly all our lives – this is a new beginning. We are following a new path, our own path as First Nations people for the future of our children. At Children’s Ground, the community is taking the lead. We are very proud of that. We are the government of ourselves.[153]
1.372This approach, underscored by the principles of the UNDRIP, has seen recent success in tackling key indicators of health, educational engagement, and community and cultural wellbeing:
Senator Lidia Thorpe
Member
Senator for Victoria
21 November 2023
Footnotes
[1]Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, ‘Inquiry into the United Nations Declaration on the Rights of Indigenous People’, Terms of Reference (2 August 2022)
[2]United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth) Explanatory Memorandum
[3]United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth) s. 5
[4]United Nations Declaration on the Rights of Indigenous Peoples Act (Canada)
[5]Senate Standing Committee on Legal and Constitutional Affairs, ‘Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia’, Terms of Reference (29 March 2022)
[6]Mr Warren Dick, Committee Hansard, Canberra, 31 March 2023, p. 21
[7]UN HRC, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, UN Doc A/ HRC/36/46/Add.2, 8 August 2017, pg. 18-19
[8]United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/17/10, 24 March 2011
[9]UNDRIP, Article 19, p. 16
[10]Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia and the Best Practice Standards in Indigenous cultural heritage management and legislation, Department of Climate Change, Energy, the Environment and Water, pg 23-24, https://www.dcceew.gov.au/parks-heritage/heritage/publications/dhawura-ngilan-vision-atsi-heritage, viewed 14 November 2023
[11]Dr Sheryl Lightfoot, Senior Adviser to the President on Indigenous Affairs, University of British Columbia; Associate Professor, School of Public Policy and Global Affairs, Department of Political Science, University of British Columbia; Faculty Associate, Institute for Critical Indigenous Studies, University of British Columbia; Vice Chair and Member from North America, United Nations Expert Mechanism on the Rights of Indigenous Peoples, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 8 June 2023, p.11
[12]Ms Sam Klintworth, National Director, Amnesty International Australia, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 19 May 2023, p.18
[13]Hon. Murray Rankin, Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 31 March 2023, p.1
[14]Australian National University First Nations Portfolio, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 31, p.10
[15]The Law Council of Australia as cited in the Australian Government, Australian Law Reform Commission, ‘Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126)’ (2015) 2.110
[16]Amnesty International, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 25, p.6
[17]Tony McAvoy SC, Committee Hansard, Canberra, 8 June 2023, p.24
[18]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007,A/RES/61/295,Article 1. Available at: https://www.refworld.org/docid/471355a82.html[accessed 5 July 2023]
[19]Ibid. Article 7.2
[20]Australian National University First Nations Portfolio, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 31, p.5
[21]Ibid. p.8
[22]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007,A/RES/61/295,Article 11.1. Available at: https://www.refworld.org/docid/471355a82.html[accessed 5 July 2023]
[23]General Assembly, 2 October 2007,A/RES/61/295,Article 3. Available at: https://www.refworld.org/docid/471355a82.html[accessed 5 July 2023]
[24]Gudanji for Country, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 41, p.2
[25]Ms Roj Amedi, Chief Campaigns Officer, GetUp!, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 19 May 2023, p.17
[26]Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, Inquiry into the UN Declaration on the Rights of Indigenous People,Committee Hansard, Canberra, 10 February 2023, p.2
[27]Ms Sam Klintworth, National Director, Amnesty International Australia, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 19 May 2023, p.19
[28]Australian National University First Nations Portfolio, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 31, p.4
[29]National Indigenous Australians Agency, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 9, p.1
[30]National Indigenous Australians Agency, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 9.1, p.1
[31]Australian National University First Nations Portfolio, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 31, p.9
[32]National Indigenous Australians Agency, Inquiry into the UN Declaration on the Rights of Indigenous People, Submission 9.1, p.1
[33]Ibid.
[34]Tony McAvoy SC, Inquiry into the UN Declaration on the Rights of Indigenous People, Committee Hansard, Canberra, 8 June 2023, p.22
[35]Terri Janke and Company, Inquiry into the UN Declaration on the Rights of Indigenous People, Submission 10, p.1
[36]Ms Anne Sheehan, First Assistant Secretary, International Law and Human Rights Division, Attorney-General's Department, Inquiry into the UN Declaration on the Rights of Indigenous People,Committee Hansard, Canberra, 8 June 2023, p. 1
[37]Terri Janke and Company, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 10, p.2
[38]Isabella Higgins, ‘Closing the Gap agreement reset with 16 new targets to improve lives of Aboriginal and Torres Strait Islander Australians’, ABC (30 July 2020)
[39]Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 53, p.19
[40]Ibid.
[41]University of New South Wales, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 4, pp.4-5
[42]Emeritus Professor Jon Altman, School of Regulation and Global Governance, The Australian National University, Canberra, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 44, p.4
[43]Dr. Shelly Bielefeld, Senior Lecturer, Griffith Law School, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 29, p.3
[44]James Anaya, ‘Statement of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, as he concludes his visit to Australia’, 27 August 2009.
[45]Mr Yingiya Guyula MLA, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 51, p.1
[46]Gudanji for Country, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 41, pp.2-3
[47]Healing Foundation, Inquiry into the UN Declaration on the Rights of Indigenous People, Submission 34, p.6
[48]University of New South Wales, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 4, pp.3-4
[49]Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 53, p.5
[50]Ibid. pp.17-18
[51]James Anaya, ‘Statement of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, as he concludes his visit to Australia’, 27 August 2009.
[52]University of New South Wales, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 4, p16
[53]Human Rights Watch, ‘Australia: Address Abuses Raised at UN Review’ (20 January 2021)
[54]Ibid.
[55]Ibid.
[56]United Nations Human Rights Office of the High Commissioner, ‘Australia violated Torres Strait Islanders’ rights to enjoy culture and family life, UN Committee finds’ (23 September 2022)
[57]This section summarised from the Australian National University Law reform and Social Justice Research Hub’s submission to the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, (Submission 36)
[58]Article 1: 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.
[59]Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
[60]Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, Committee Hansard, Canberra, 10 February 2023, pp.1-2
[61]Ms Celeste Haldane, Chief Commissioner, British Columbia Treaty Commission, Committee Hansard, Canberra, 10 February 2023, p.17
[62]This section summarised from the Australian National University Law reform and Social Justice Research Hub’s submission to the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, (Submission 36)
[63]Professor Claire Charters, Committee Hansard, Canberra, 31 March 2023, pg. 26-27
[64]Australian National University Law reform and Social Justice Research Hub, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, (Submission 36) p.9
[65]Professor Claire Charters, Te Kaunihera Maori o Aotearoa, New Zealand Maori Council, Committee Hansard, Canberra, 31 March 2023, p.24
[66]Mr Tuomas Aslak Juuso, President, Sami Parliament, Finland, Committee Hansard, Canberra, 10 February 2023, p.25
[67]Ibid. p.24
[68]Ibid. p.25
[69]Ms Johanna Suurpaa, Director General, Department for Democracy and Public Law, Finland, Committee Hansard, Canberra, 10 February 2023, p.32
[70]Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 53, p.13
[71]Ms Kacey Teerman, Associate Campaigner, Indigenous Rights, Amnesty International Australia, Committee Hansard, Canberra, 19 May 2023, p.23
[72]Government of Canada,‘Implementing the United Nations Declaration on the Rights of Indigenous Peoples Act, https://www.justice.gc.ca/eng/declaration/index.html [accessed 11 July 2023]
[73]Hon. Murray Rankin, Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada, Committee Hansard, Canberra, 31 March 2023, p.1
[74]Dr Sheryl Lightfoot, Senior Adviser to the President on Indigenous Affairs, University of British Columbia; Associate Professor, School of Public Policy and Global Affairs, Department of Political Science, University of British Columbia; Faculty Associate, Institute for Critical Indigenous Studies, University of British Columbia; Vice Chair and Member from North America, United Nations Expert Mechanism on the Rights of Indigenous Peoples, Committee Hansard, Canberra, 8 June 2023, p.11
[75]Ibid.
[76]Federation of Victorian Traditional Owner Corporations, Submission 36, p.39
[77]Ms Koren Marriot,Acting Director and General Counsel, Legislative and International Policy Unit, Aboriginal Law Centre, Department of Justice, Canada , Committee Hansard, Canberra, 10 February 2023, p.12
[78]Mr Mark Smith, General Counsel and Director of Process, British Columbia Treaty Commission, Committee Hansard, Canberra, 10 February 2023, p.17
[79]Ms Lisa Smith, Interim Adviser to the President, Native Women's Association of Canada, Committee Hansard, Canberra, 10 February 2023, pp.1 - 2
[80]Ibid. p.4
[81]Ms Celeste Haldane, Chief Commissioner, British Columbia Treaty Commission, Committee Hansard, Canberra, 10 February 2023, p.17
[82]United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth) s 5
[83]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007,Article 38, A/RES/61/295,available at: https://www.refworld.org/docid/471355a82.html[accessed 10 July 2023]
[84]Terri Janke and Company, Submission 10, p.2
[85]Australian National University First Nations Portfolio, Submission 31, p.8
[86]Ibid.
[87]Hon. Murray Rankin, Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada, Committee Hansard, Canberra, 31 March 2023, p.1
[88]Ibid. p.3
[89]Mr Rodney Dillon, Indigenous Rights Adviser, Amnesty International Australia, Committee Hansard, Canberra, 19 May 2023, p.19
[90]Ms Anyupa Butcher, First Nations Justice Senior Campaigner, GetUp!, Committee Hansard, Canberra, 19 May 2023, p.12
[91]Ibid.
[92]Victorian Aboriginal Legal Service, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 66, p.5
[93]Woodside Energy, Inquiry into the UN Declaration on the Rights of Indigenous People, Submission 24, p.2
[94]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007,A/RES/61/295,Article 8.1, available at: https://www.refworld.org/docid/471355a82.html[accessed 13 July 2023]
[95]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007,A/RES/61/295,Article 13.1 and 13.2 available at: https://www.refworld.org/docid/471355a82.html[accessed 13 July 2023]
[96]WA Commissioner for Children and Young People, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 10, p.2
[97]ACT Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 5, p.4
[98]UN General Assembly,United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007,A/RES/61/295,Article 25 available at: https://www.refworld.org/docid/471355a82.html[accessed 13 July 2023]
[99]Australian Nuclear Free Alliance, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 2, p.2
[100]University of New South Wales Law Society, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 4, p.9
[101]Victorian Aboriginal Child Care Agency, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 54, p.14
[102]Victorian Aboriginal Legal Service, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 66, p.5
[103]Change the Record, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 16, p.6
[104]Ibid.
[105]The Western Australian Commissioner for Children and Young People, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 10, p.7
[106]Castan Centre for Human Rights Law, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 33, pp.5-6
[107]Emeritus Professor Jon Altman School of Regulation and Global Governance, the Australian National University, Canberra, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 44, p.9
[108]Dr. Shelly Bielefeld, Senior Lecturer of Griffith Law School, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 29, p.6
[109]International Covenant on Civil and Political Rights;International Covenant on Economic, Social and Cultural Rights;International Convention on the Elimination of All Forms of Racial Discrimination;Convention on the Elimination of All Forms of Discrimination against Women;Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;Convention on the Rights of the Child; andConvention on the Rights of Persons with Disabilities.
[110]ACT Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 5, p.8
[111]Emeritus Professor Jon Altman School of Regulation and Global Governance, the Australian National University, Canberra, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 44, p.9
[112]Australian Human Rights Commission, ‘Implementing UNDRIP’, Australia’s third UPR (2021) https://humanrights.gov.au/sites/default/files/2020-10/implementing_undrip_-_australias_third_upr_2021.pdf [accessed 14 July 2023]
[113]Ibid.
[114]Ibid.
[115]Professor Claire Charters, Te Kaunihera Maori o Aotearoa, New Zealand Maori Council, Committee Hansard, Canberra, 31 March 2023, p.24
[116]Human Rights Law Centre, ‘Australian government ignores key recommendations from major UN human rights review’ (8 July 2021)
[117]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia, Addendum, Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review’, 24 March 2021,A/HRC/47/8/Add.1, p.3
[118]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia’, 24 March 2021,A/HRC/47/8, Recommendation 146.272, p.23
[119]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia’, 24 March 2021,A/HRC/47/8, Recommendation 146.285, p.23
[120]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia’, 24 March 2021,A/HRC/47/8, Recommendation 146.286, p.23
[121]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia, Addendum, Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review’, 24 March 2021,A/HRC/47/8/Add.1, p.3
[122]UN General Assembly,‘Report of the Working Group on the Universal Periodic Review: Australia’, 24 March 2021,A/HRC/47/8, Recommendation 146.288, pp.23-24
[123]The Charter of Human Rights and Responsibilities Act 2006 (Vic)
[124]Human Rights Act 2004 (ACT)
[125]Human Rights Act 2019 (Qld)
[126]University of New South Wales Law Society, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 5, p.17
[127]Australian Human Rights Commission, ‘Commission launches model for an Australian Human Rights Act’ (9 March 2023)
[128]Ibid.
[129]University of New South Wales Law Society, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 4, p.17
[130]Dr. Shelly Bielefeld, Senior Lecturer of Griffith Law School, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 29, p.6
[131]Federation of Victorian Traditional Owner Corporations, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 65, p.34
[132]Ibid. p.32
[133]Victorian Aboriginal Legal Service, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 66, p.8
[134]Change the Record, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 16, p.3
[135]Ibid. pp.1-2
[136]Victorian Aboriginal Child Care Agency, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 54, p.14
[137]WA Commissioner for Children and Young People, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 10, p.7
[138]Ibid. p.15
[139]Emeritus Professor Jon Altman, School of Regulation and Global Governance, The Australian National University, Canberra, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 44, p.6
[140]National Native Title Council, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 63, p.4
[141]Ibid. p.5
[142]Change the Record, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 16, pp.1-2
[143]Amnesty International, Inquiry into the UN Declaration on the Rights of Indigenous People,Submission 25, p.9
[144]Ibid.
[145]The Western Australian Commissioner for Children and Young People, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 10, p.2
[146]Ibid. p.7
[147]First Languages Australia, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission 28, p.6
[148]Australian Government Productivity Commission ‘Overcoming Indigenous Disadvantage’ (2020) p.3.2
[149]Ibid. p.3.8
[150]Children’s Ground, ‘Evaluation of Ampe-kenhe Ahelhe: Children’s Ground in Central Australia Summary of key findings,’ (2021) p.5
[151]Children’s Ground, ‘Annual Report,’ (2020) p.9
[152]Children’s Ground, ‘Evaluation of Ampe-kenhe Ahelhe: Children’s Ground in Central Australia Summary of key findings,’ (2021) p.8
[153]Ibid. p.23
[154]Children’s Ground https://childrensground.org.au/evidence/
[155]Children’s Ground, ‘Evaluation of Ampe-kenhe Ahelhe: Children’s Ground in Central Australia Summary of key findings,’ (2021) p.20
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