Senator Thorpe Additional Comments
1.1I make these comments as a proud Gunnai Gunditjmara and Djab Wurrung woman, and as a Black witness to the ongoing functions and coercion of the colonial government. As First Peoples, we do not just have inherent rights, we have an inherent responsibility to care for our mother, our Country, as our ancestors did.
1.2I give my support to the progression of the human rights framework in this country and support the committee recommendation that the government legislates a Federal Human Rights Act. I also note the direct link between the health of our Country, and human rights, including the rights to life, health, food, water and housing. I hope to see all members of parliament take up the fight for a rights based framework, and for our common and collective humanity.
1.3So let’s talk Truth. Yes, this Bill is about Human Rights – a long overdue conversation on this continent. A discussion that cannot be had without placing ourselves within the historical context, and current reality of colonisation:
Indigenous peoples who have been colonised around the world; who are marginalised by the dominant society; who have lost access to their lands, territories and resources; and who have a particular affinity to their lands, territories and resources.[1]
1.4With colonisation came the mass abuse of human rights: massacres, forced displacement, theft of land and resources, slavery, torture, sexual violence, political and social discrimination, child removals and incarceration – violations which continue to be inflicted upon our communities today:
Aboriginal and Torres Strait Islander children's rights have been in crisis since colonisation, when we were dispossessed of our land and our cultural ways of growing up and nurturing our children, which we have done successfully for more than 65,000 years.[2]
1.5In fact, the very premise of British colonisation – including the theft of land and resources and the establishment of systems of colonial control such as government and prisons – not only inflicted gross human rights abuses on First Nations Peoples, it actually required them to occur. Terra Nullius was the first of these abuses. A legal fiction coupled with the racist ideology of white supremacy rendered First Nations Peoples as non-human in the eyes of the coloniser, paving the way for the genocide that would lead to the establishment of this government and its legacy of violence:
There is no other group in Australian society that is a greater litmus test of the place of human rights protection in Australian history than Indigenous Australians.[3]
1.6Be it through resistance or negotiation, First Nations leaders throughout time have fought for their rights since the first days of the invasion in 1788. Pemulway, Jandamarra, Ellemarra, Bunjileenee, Maulboyheenner, Tunnerminnerwait, Musquito and the Black Banditti, Truganinni, Jupiter, Cold Morning, Walyer, Tongerlongerter, Mannalargenna, Windradyne, Yagan, Dundalli, Multuggerah, the Wiradjuri, the Kalkadoons, the Kalkatunga, the Yolngu, the Bunuba, the Kurnai, the Gunditjmara, the Dharug, the Dja Dja Wurrung as well as countless other fighters and nations have fought invading settler forces. These are just some of the many heroes that resisted the onslaught and raised their voices on behalf of their families and communities.
1.7Our people were the first human rights defenders on this continent, and this continues today with First Peoples across the world protecting over 80 per cent of the remaining biodiversity on this planet.[4]
The 2022 decision of the UN Human Rights Committee is relevant in this regard. It found that Australia’s failure to provide adaptation and mitigation measures to address climate change impacts violated the rights to culture and a private life of eight Torres Strait Islanders.[5]
1.8During the drafting of the Genocide Convention in 1948, Australian delegates argued against the inclusion of cultural genocide, a key principle of the original concept of this ‘crime of all crimes’. Canada, along with Australia, New Zealand, and the United States (CANZUS) held strong on their objections which were sustained and cultural genocide dismissed from the Convention.
Any rights touching on the right to culture, must include rights to cultural heritage, including intangible cultural heritage as per the Convention for the Safeguarding of the Intangible Cultural Heritage and underwater cultural heritage.[6]
1.9All the while the Stolen Generations were in full effect back in the colony, stripping First Nations children of their right to culture, land, language and community, and trampling on the basic human right of a mother and father to raise their own child:
The fifth punishable act of genocide is the forcible transfer of children from one protected group to another….In relation to child removal in this country, where we have 22,000 Aboriginal and Torres Strait Islander children in out-of-home care, we're obviously over-represented at every point.[7]
1.10In 2007, Australia – along with the same colonial counterparts – also initially refused to ratify the United Nations Declaration on the Rights of Indigenous Persons (UNDRIP) until provisions like the UNDRIP Article 46 were included to specifically attempt to maintain the territorial integrity of the colony state of Australia. This reluctance has continued to the present day by voting against a UNDRIP Bill last year.
1.11The ongoing violation of First Nations continued to be raised in both the 1991 Royal Commission into Aboriginal Deaths in Custody Report and the 1997 Bringing Them Home report which called the removal of children as genocidal. Along with a multitude of similar documents, the vast majority of recommendations made by First Peoples in these reports have been largely ignored. Indeed, the need for proper, extensive, genuine decision making power for First Nations Peoples was touched on extensively in the inquiry including the need ‘to remedy the historical and ongoing exclusion from government decision making’.[8]
so, there's a whole range of social problems that are impacting, and we don't have rights or a voice, to know what's best—not having a government coming in and making a decision on what should happen. We know what's best. We did it for 65,000 years. We need that voice to be able to tell the government, this is the best way, how we should be working with our children and our families.[9]
1.12The same year the Australian government refused to ratify the UNDRIP, they suspended the operation of the Racial Discrimination Act 1975 in order to implement the Northern Territory Intervention, legislative measures which would largely remain in place until 2022. There we saw hugely harmful legislation rushed through this very committee, without proper human rights scrutiny. There is no legislation pressing enough to not require a consideration of human rights.
1.13In 2002 Australia finally implemented the Genocide Convention into domestic legislation. After over 50 years of delay since it was ratified in 1949. When it did, it included provisions to shield itself from historical accountability of the most horrendous human rights abuse of genocide, to ensure it was not retrospective for any conduct that occurred prior to 2002, and introduced what is commonly known as the Attorney-General’s fiat. The fiat is a tool that has shielded the government from accountability and functioned as an effective veto power to commencing proceedings under the Convention in the past and functioned as a barrier to justice for victims and survivors of these atrocious crimes, which is the subject of the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 introduced in my name.
1.14In response to a question around what a human rights framework or Act can do to address human rights abuses Ms Jabri Markwell, from the Australian Muslim Advocacy Network Ltd, raised Australia needing to strengthen its approach to its obligations under the Rome Statute to prevent genocide.[10]
1.15And last September, while the Labor Government was spruiking a powerless Indigenous ‘Voice to Parliament’, all the while ignoring our People's demands on housing, poverty, imprisonment, while the Labor Queensland party suspended their state’s human rights protections to lock First Nations children in adult jails.
If we look, for example, at Queensland, which has a human rights act, when the Queensland courts pointed out that the treatment of juveniles in detention in Queensland was contrary to the Queensland human rights law, the Queensland government's response was to suspend the operation of the Queensland human rights law with respect to juvenile detention. A court outcome didn't actually change the fact that juveniles in detention in Queensland are, in fact, being treated in ways that are breaching their human rights.[11]
1.16The 2023 Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs (JSCATSIA) inquiry into UNDRIP[12] also highlighted 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.[13]
Our children still remain over 10 times more likely to be in out-of-home care than non-Indigenous children, and, far from getting better, this trend has been increasing in every jurisdiction over the last decade. We suspect it's another four per cent in Queensland. Our children are significantly more likely to have contact with the youth justice system and to be held in detention. This is to say nothing of the horrifying breaches of human rights that our children and young people experience while in out-of-home care and youth detention.[14]
1.17As the occupation of our land, seas, skies and waters, so does the abuse of our basic human rights continues. These issues have not been addressed, nor has any government been held accountable. Meanwhile current laws, policies and practices continue to exact colonial legacies of violent abuse of human rights and criminalisation of our ways of being. One stark example is child removals, and the consequent child imprisonment, which are currently facilitating the removal of a new stolen generation of children, a system which the Australian Human Rights Commission (AHRC) described as committing egregious human rights violations.[15]
1.18We cannot begin to address the systemic, institutional human rights abuses taking place, without properly identifying the role of the state as the abuser, and the fact that this colony and its governments have been, and continue to be, the greatest abuser of human rights. Leaving state violence unspoken serves to hide and legitimise the intergenerational human rights violations of the state, including the failures of state services that have left vulnerable people trapped in poverty, in powerlessness, and in abuse. It must be acknowledged that appropriate funding for housing, community support, and social services means the most to those most vulnerable.
1.19The Australian College of Nursing submitted that inadequate government income payments and housing stress result in denying basic rights and poverty.[16]
Our current legal frameworks and ‘business as usual’ approaches to public administration are insufficient to prevent systemic human rights abuses – particularly where they impact upon a vulnerable population” where decisions were based on “budgetary factors that did not take into consideration the broader range of relevant concerns through a human rights lens.[17]
1.20Evidence throughout the inquiry pointed to this fact: that nationally, human rights abuses are the direct result of the actions and inactions of the state and its agencies who across all jurisdictions – including in extra-territorial jurisdictions – are the primary abusers of vulnerable, criminalised and racialised communities, and especially of First Peoples in the context of ongoing colonialism and genocide.
1.21The Victorian Aboriginal Child Care Agency submitted that Aboriginal people are significantly more likely to experience homelessness.[18]
1.22Compulsory income management and cashless welfare policies, which limits individual’s ability to spend their social security entitlements, were also raised as impinging on rights to non-discrimination, social security and private life, particularly for First Nations People.[19]
1.23The state is often framed as the protector of human rights, the solution to violence, the saviour of vulnerable persons, when there is overwhelming evidence of the state being a violent actor in its own right. As such, it is the irony of international and domestic human rights law that it is the government who is both the regular violator of rights, and then casts itself as the protector of those same rights and faces little if any accountability for its actions.
1.24The National Justice Project noted that people experiencing homelessness are one vulnerable group that frequently face harassment, arbitrary detention and abusive treatment at the hands of police, often due to discrimination.[20]
1.25Australia is continuously criticised internationally for its human rights record, for its actions both at home and abroad, without accountability for its egregious actions. Only as recently as the 2021 Universal Periodic Review, United Nations (UN) member delegates raised a range of human rights concerns including treatment of asylum seekers, child incarceration, and the discrimination of First Nations Peoples. The UN Subcommittee on Prevention of Torture terminated its visit to Australia in October 2022 after being blocked from accessing prisons and mental health facilities in New South Wales and Queensland. In 2023, the Commonwealth Ombudsman released a damning report on Australia’s immigration detention regime.
Secondly, the point is regarding children being held in immigration detention. No child should be held in detention, regardless of what their protection claims are. The fact is that they were held in closed detention and that both the children suffered serious medical issues—including one child's teeth rotting when they were at the age of two, and another developing a blood infection.[21]
1.26As such, the proposed Human Rights Act should serve simply as a starting point.
1.27Greater protection and accountability for human rights should be underscored by a national truth telling process, and the implementation of recommendations made concerning First Nations human rights in the aforementioned report.
1.28Inclusive of this should also be protections and support for those who aremarginalised and criminalised by the colonial system, as well as the many communities that suffer a range of rights violations in quality of life, safety from the state and empowerment, and are vulnerable to arbitrary or political arrest, such as asylum seekers, refugees, non-citizens, protesters, and participants in union protests and strikes, particularly those protesting climate change, journalists subjected to police harassment, especially if they criticise the government, whistleblowers and other communities and individuals who are marginalised, dehumanised, and othered including those who are trans, non-gender-conforming, disabled or elderly.
1.29It is with this context in mind that the following commentary regarding the proposed Human Rights Act is made.
human rights are acknowledged in official Australian government policy to be universal, inherent, indivisible, interdependent, interrelated and inalienable—all those 'in' words. In short, your own policies acknowledge that we're all entitled to all human rights from birth, and they can't be given up by us or taken away by any government, let alone by one purporting to be democratic; and yet here we are, in 2023, with a committee posing questions, the basic assumptions of which are at odds with this official policy. The terms of reference pose questions which contemplate the idea that we're not entitled to human rights, unless it suits the government of the day. This implies that the best Australians might hope for from this inquiry is that maybe some human rights will at last come our way, if it suits the committee today. I'm here to call on this committee to aspire to achieve more than that kind of meagre offering to Australians because they're entitled to more; they should not be denied their right.[22]
1.30Throughout the committee inquiry, and drafting stages of the report and proposed Act, I have been advocating for the strongest, most comprehensive articulation of and protection of human rights as consistent with international law, and made extensive comments and submissions to this goal, some of which have been accepted and are in the substance of the report, for which I thank the committee.
1.31Throughout the inquiry some submitters regarded the AHRC model as conservative for excluding certain rights, and drafting certain provisions and specific rights too narrowly, thereby undermining them and potentially rendering them powerless, for example, the right to a healthy environment. It is of utmost importance that any human rights framework progressed is ambitious, future forward and reflects the language, wording and intention of all the rights contained in international law.
Once bills of rights are enshrined, they can be legally or politically difficult to update or change. This is why it is vital for Australia to embrace the potential of future-facing human rights.[23]
To stay true to our international human rights obligations and their intent, we need to ensure that a Human Rights Act is forward looking, complies with the obligations set out at international law, andreflects the language, wording and intention of all the rights contained therein, and should fully and comprehensively protect and promote civil, political, economic, social and cultural rights, as per its international legal obligations’, including under the ICCPR and ICESCR.[24]
1.32The ‘indivisibility’ of rights means that there is no hierarchy of human rights, as all are important. The fulfilment of one right is often dependent on the fulfilment of other rights (they are ‘interrelated’ and ‘interdependent’. In this regard, many civil and political rights cannot be realised unless economic, social and cultural rights are also secured and vice versa, and I support the full implementation of all rights.
this should include as stated by VALS a standalone right to self-determination, non-discrimination rights, comprehensive cultural rights and strong protection for economic and social rights, including rights to housing and health.[25]
Any right protected by the principal UN human rights treaties to which Australia is party should be considered for inclusion’, subject to a number of factors, including constitutional support, drafting which facilitates justiciability, and the responsibilities of Commonwealth public authorities/entities.[26]
1.33These comments make a number of pinpoint legislative recommendations that in principle seek to strengthen the rights of self-determination of Sovereign First Nations and protect vulnerable people from human rights violations committed by the State.
1.34However, Australia has not observed the right to self-determination as defined in international legal terms within the draft Act, but instead characterised self-determination in terms acceptable to the colonial government, all the time ensuring that the colonial government would maintain its superiority in power. The recommendations made in this paper seek to address this, by noting that these comments are made within the context of a colonial system of governance and the curtailing of human rights this proposed Act actually oversees.
1.35The right to self-determination is a right of 'peoples' rather than of individuals, and is a core principle of human rights - collective rights/group rights are core human rights principles. The conferring of group rights is significant with respect to the devastating impacts that colonisation had on Indigenous Peoples as collectives. This paper also seeks to address this core deficit in the proposed Act by way of proposed legislative amendments.
1.36The AHRC acknowledges that without self-determination it is not possible for Indigenous Australians to fully overcome the legacy of colonisation and dispossession.[27]
1.37I also note that treaty, self-determination and the implementation of 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 achieve greater protection of our rights to First Peoples, and begin to redress the ongoing impacts of colonisation. Our 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 human rights principles, the UNDRIP and further enshrine the principles contained therein within Treaty negotiations and agreements.
Recommendation 1
1.38The right to self-determination should be included specifically as an inherent and justiciable right for Sovereign First Nations Peoples that align with international human rights law, including the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
1.39The backdrop to the emergence of the legal right to self-determination was the movement for decolonisation during the 1960s where the core meaning of the legal right to self-determination centres on the idea of freedom from subjugation.[28]
1.40The right of self-determination has been identified by the International Court of Justice (ICJ or ‘the Court’) as ‘one of the essential principles of contemporary international law’.[29]‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’[30]
1.41Many submitters supported the inclusion of the right to self determination in a federal HRA, including advocating for the inclusion of the right to self-determination as a stand-alone right.[31] With the vote against the proposed UNDRIP Bill, and no domestic oversight mechanisms to ensure compliance with the Declaration, a Human Rights Act could serve as the ideal starting point to recognise and uphold these rights.
The Aboriginal Legal Service strongly supports the enactment of a federal human rights act and is advocating in particular for the act to include the important rights set out in the United Nations Declaration on the Rights of Indigenous Peoples, including a standalone right to self-determination, non-discrimination rights, comprehensive cultural rights and strong protection for economic and social rights, including rights to housing and health.[32]
1.42The right and need for genuine power and decision-making, and how that right is continually violated, and co-opted and denied to First Peoples was touched on extensively in the inquiry,[33] and it is clear that decisions on the adequacy of the proposed framework and legislation must be self-determined by First Peoples and their communities including community controlled organisations, grassroots organisations. This was a flaw of the committee process itself, and the AHRC model themselves noted that their recommendations require further extensive consultation with First People and is not exhaustive.
1.43Environmental Justice Australia further submitted that additional specific procedural and participation rights for, and developed by, Aboriginal and Torres Strait Islander people should be included to ‘remedy historical and ongoing exclusion from government decision making’.[34]
1.44As stated by the AHRC ultimately, the question of how best to reflect principles of self-determination should be a matter for First Nations peoples, and recommends that this proposal be considered subject to deeper consultations. The inquiry heard of a shocking record of decision-making for and often to the detriment of First Peoples, completely ignoring the principle of free, prior and informed consent even though it should 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.
1.45The UNDRIP provides:
Article 3:
Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 4:
Indigenous peoples, in exercising their right to self-determination, 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.
Article 5:
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.[35]
Recommendation 2
1.46That the proposed Human Rights Act be amended to contain an explicit and enforceable positive participation duty for all people most at risk of human rights breaches, including but not limited to Sovereign First Nations.
1.47Firstly, it must be noted that participation duty is not an alternative, nor is it a replacement for self-determination.
We must be upfront about what self-determination is and halt the watering down of this important principle; participation duties must not be equated with self-determination.[36]
1.48The AHRC acknowledges that without self-determination it is not possible for Indigenous Australians to fully overcome the legacy of colonisation and dispossession.[37]
1.49Noting that subclause 47(4) (‘Obligations on Public Authorities’), of the draft bill,[38] provides for the participation of First Nations Peoples in the ‘consideration’ of human rights, this provision should be statutorily expressed as per the recommendations of the Australian Human Rights Commission.[39]
1.50That participation duty must also include a specific obligation to engage with those with lived experience, and grassroots groups that are not at the forefront of political access. Consideration must be given in particular to minority groups and those lacking sufficient political power to have their voice heard, or who experience barriers to participation related to vulnerabilities experienced by those groups (for example, children, who are unable to vote). Much scrutiny also needs to be given to the quality and efficacy of consultation being undertaken in purported compliance with a participation duty:
The success of this process-based measure for protecting Indigenous rights ‘would rely on the robustness of the processes and resources put in place for consultation.[40]
It’s not just about what they do but how they do it. How they conduct their consultation must be shown to be informed by the needs of the group they wish to engage. Assessing people’s meaningful inclusion in consultation cannot be left to government as they lack the requisite skills and knowledge to determine this.[41]
1.51For example, within government decision making, particularly with the right to a healthy environment, the meaning of this should be read within the context of requiring public authorities to ensure the effective participation of all people who are most at risk of experiencing environmental harm in addition to First Nations Peoples, children, and people with disability, such as women, people who are financially disadvantaged, older people, people from a racial, ethnic or other minority, people displaced by natural disasters, culturally and racially marginalised communities, and LGBTIQA+ communities.
1.52The Australian Human Rights Commission supports a binding obligation (“a participation duty”) on Public Authorities in the consideration of human rights, stating:
This duty would be binding on public authorities with obligations under the Human Rights Act. It would require public authorities to ensure the participation of First Nations peoples, children and persons with disability in relation to decisions that directly or disproportionately affect their rights.[42]
1.53Consultative mechanisms should be inclusive of the express right to self-determination, and be actualised by including First Nations leadership and expertise in parliamentary processes that will operate to implement the functions of the Act.
1.54For example, the Parliamentary Joint Committee on Human Rights should seek to ensure legislation complies with duties expressed in clause 47, including First Nations consultation in matters that concern First Nations communities.
1.55This participation duty should also be inclusive in the event of any possible limitations and suspensions of human rights (see below).
Recommendation 3
1.56That the proposed Human Rights Act (HRA) be amended to provide for provisions for Sovereign First Nations consultation, oversight and access for review regarding any limitation placed on the function of the HRA in circumstances in which they are impacted.
1.57Clause 12 makes provisions for the limitation of rights in a number of circumstances, and also notes that consideration of the vulnerability of any affected group is subject to a limitation.
1.58This limitation of rights is an ongoing concern for First Nations Peoples and communities given the colony’s track record of suspending human rights protections in instances such as Northern Territory Emergency Response in 2007 and at a state level, the incarceration of First Nations children in Queensland in 2023.
1.59Noting that limitations may be made in particular circumstances under the proposed Act, it is recommended that additional protections be enshrined where First Nations Peoples and Communities are concerned.
1.60This should include a positive statutory obligation to consult with First Nations Communities who may be impacted by a limitation, as per subclause 47(4) (‘Obligations on Public Authorities’), of the draft bill.
1.61This positive duty should be expressly articulated in clause 12 to avoid further breaches of First Nations’ human rights via limitations, suspensions and ‘special measures’ as has occurred in the past.
1.62Further, noting that this clause includes the necessity for “oversight” and “access to review” of any imposed limitation, this should include accessible consultative pathways for any First Nations Community subjected to a limitation.
1.63Limitations to First Nations’ human rights have previously been enacted without First Nations’ consultation or by deliberately ignoring advice; as such, it is imperative that any limitations deemed necessary are undertaken in direct consultation with the impacted community.
1.64This is a principle enshrined in the United Nations Declaration of Indigenous Peoples, in particular Articles 2, 4 and 5.
Recommendation 4
1.65That the proposed Human Rights Act be amended to extend the meaning and interpretation of cultural rights to ‘to enjoy, maintain, control, protect and develop’ across all conferred cultural rights, and include both tangible and intangible cultural heritage.
1.66These comments note the manner in which true sovereign powers for First Nations peoples have been disguised – self-determination, for example, that it was proposed to be simply mentioned in a preamble and not as a specific and inherent right that would cause statements of compatibility to address this.
1.67This continues in clause 36 ‘Rights to Culture’, which contains the provision that ‘Indigenous peoples hold distinct cultural rights.’
1.68However, it is noted that these rights do not reflect the rights to self-determination as defined by the United National Declaration on the Rights of Indigenous Peoples (Articles 3, 4 and 5) and in fact, are increasingly diminished. One example of this is shown in how the AHRC articulates that cultural rights could operate in practice and ‘could be utilised to ensure that a child removed from their family or held in detention is able to maintain connection with kin and culture.”[43]
1.69This misconstrues self-determination: no children should be removed by this government in the first place.
1.70It is noted that the progressive diminishment of such powers is relational to the threat and imposition of power First Nations may have on the economic development in their Sovereign territories.
1.71For example, paragraphs 36(4)(a) to (c) confers the power for First Nations Peoples ‘to enjoy, maintain, control, protect and develop’ identity and cultural heritage, languages, and kinship ties.
1.72However, with respect to the ‘material and economic relationship’ to the land, territories, waters, coastal seas and resources (paragraph 36(3)(d)), lesser powers are conferred: ‘to maintain and strengthen.’
1.73In paragraph 36(3)(e) - the environment and productive capacity’[44] – this power is further diminished to ‘conserve and protect.’
1.74Paragraphs 36(3)(d) and 3(e) should be reworded to confer the same powers as paragraphs(3)(a) to (c), being ‘to enjoy, maintain, control, protect and develop’ along with the already stated ‘maintain and strengthen’ and ‘conserve and protect.’
1.75This right should also be reworded to ensure that the right to culture includes both tangible and intangible culture.
1.76Any rights touching on the right to culture, must include rights to cultural heritage, including intangible cultural heritage as per the Convention for the Safeguarding of the Intangible Cultural Heritage and underwater cultural heritage.[45]
1.77This re-wording would confer the capacity for sovereign self-determination for First Nations Peoples, in particular with respect to any economic development.
Recommendation 5
1.78The right to Free, Prior and Informed Consent (FPIC) should be included as a stand alone right in the proposed Human Rights Act.
1.79The right to Free, Prior and Informed Consent (FPIC) should be included as a stand alone right.
1.80Article 19 of the UNDRIP requires States to 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 that may affect them.[46]
1.81This proposed amendment also directly reflects the United Nations Declaration on the Rights of Indigenous Peoples Article 32(1):
Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
Indigenous peoples hold the right to free, prior and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.[47]
1.82This wording reflects that contained in the United Nations Declaration on the Rights of Indigenous Peoples Article 32(2). As per the UNDRIP, this also places a positive obligation on states to ‘provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.’ UNDRIP Article 32(3).
1.83Proposed wording for what a stand alone right to free prior and informed consent could look like is included below, drawing on elements of a common understanding of free, prior and informed consent as per the extract from the United Nations Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples.[48]
1.84Section X: Right to Free Prior and Informed Consent
(1)States shall consult and cooperate in good faith with the First 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 that may affect them.
(a)Free should imply no coercion, intimidation or manipulation.
(b)Prior should imply that consent has been sought sufficiently in advance of any authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes.
(c)Informed should imply that information is provided that covers at minimum the following aspects:
(i)the nature, size, pace, reversibility and scope of any proposed project or Activity
(ii)the reason(s) for or purpose(s) of the project and / or activity
(1)the duration of the above
(2)the locality of areas that will be affected
(3)a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit-sharing in a context that respects the precautionary principle
(4)personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others)
(5)procedures that the project may entail.
(d)Consent requires ongoing mutual communication and decision-making
(i)Consent to any agreement should be interpreted as First Peoples have reasonably understood it.
(ii)Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith.
(iii)The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Consultation requires time and an effective system for communicating among interest-holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women are essential, as well as participation of children and youth, as appropriate.
(iv)This process may include the option of withholding consent and can be withdrawn.
(2)When should free prior and informed consent be sought:
(a)FPIC should be sought sufficiently in advance of commencement or authorization of activities, taking into account indigenous peoples’ own decision-making processes, in phases of assessment, planning, implementation, monitoring, evaluation and closure of a project.
(3)Who should free prior and informed consent be sought from
(a)First Peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities.
(b)In free, prior and informed consent processes, First Peoples, United Nations organisations and Governments should ensure a gender balance and take into account the views of children and youth, as relevant.
(4)How to seek free prior and informed consent
Information should be accurate and in a form that is accessible and understandable, including in a language that the indigenous peoples will fully understand. The format in which information is distributed should take into account the oral traditions of indigenous peoples and their Languages.
(5)Procedures / mechanisms
(a)Mechanisms and procedures should be established to verify free, prior and informed consent as described above, inter alia, mechanisms of oversight and redress, including the creation of national ones.
(b)As a core principle of free, prior and informed consent, all sides in a FPIC process must have equal opportunity to debate any proposed agreement/development/project.
(c)‘Equal opportunity’ should be understood to mean equal access to financial, human and material resources in order for communities to fully and meaningfully debate in indigenous language(s), as appropriate, or through any other agreed means on any agreement or project that will have or may have an impact, whether positive or negative, on their development as distinct peoples or an impact on their rights to their territories and/or natural resources.
(d)Free, prior and informed consent could be strengthened by establishing procedures to challenge and to independently review these processes.
(e)Determination that the elements of free, prior and informed consent have not been respected may lead to the revocation of consent given.
(f)It is recommended that all actors concerned, including private enterprise, pay due attention to these elements.
Recommendation 6
1.85The right to take part in public life is not limited to ‘citizens’ as per clause 25.
1.86In the draft bill under clause 25 ‘Right to Part in Public Life’ that “further consideration should be given to whether this right needs to be redrafted to apply only to ‘citizens’ as this is the wording used in article 25 of the ICCPR.”
1.87This submission strongly recommends that the wording be left as per the current draft, being ‘every person in Australia, and to ensure that all the rights in the Act apply to both citizens and non-citizens.
1.88Conferring the right to participate in public life simply to citizens is exclusionary of other people residing in Australia who may have a stake and/ or be impacted by public decisions and discourses that impact them.
1.89First Nations Peoples have historically been excluded from participating in public life through a number of discriminatory policies and legislation, not least the exclusion of voting rights and the right to be counted in the census.
1.90While this may not have been a direct consequence of being counted a ‘non-citizen’ under colonial law, such exclusionary practices occurred under other auspices of direct and systemic, structural racism.
1.91Australia has both within its geographical borders ‘non-citizens’ who have an acute stake in public life, decisions and discourse including students, migrant workers and people on temporary visas.
1.92Further, there are vulnerable ‘non-citizens’ in extra-territorial facilities such as off-shore processing under the control of Australian public authorities.
1.93Often, it is such people who are subject to the abuse of their human rights; as such, the use of exclusionary language such as ‘citizen’ within the meaning of clause 25 may have consequences on those people who may most require the protection of a Human Rights Act.
1.94This is even more pertinent given such rights are often upheld by advocates of such groups who require access to and opportunity to participate in the conduct of public affairs via freely chosen representatives.
1.95This submission recommends the wording remain as is in the draft bill for the purposes as outlined above.
Recommendation 7
1.96That clarity be articulated in the proposed Human Rights Act as to the geographic and judicial boundaries of the function and application of the Act
1.97Noting that clause 4 of the draft Human Rights Act contains a necessity to further consider the ‘geographical extent’ of the Act, clarification is required as to the geographical and jurisdictional reach of the Act with respect to public authorities operating in non-Australian jurisdictions.
1.98Clause 8 of the draft Act defines the public authorities to whom the proposed Act will apply. Noting that such authorities can and do operate in locations outside of Australia, clarification is required within the Act as to the extra-territorial jurisdictional reach of the Act.
1.99This submission also notes that the United Kingdom has seen contention over the extra-territorial reach of their Human Rights Act, further cementing the need for clarification.[49]
1.100This paper strongly recommends that the proposed Human Rights Act should include provisions for the application and protection of human rights as per the Act in instances such as:
the treatment of asylum seekers in Australian-auspiced off-shore processing centres;
the conduct of Australian military service people overseas, both within their own ranks and towards civilians and combatants of other nations;
the export of Australian military and dual-use hardware where used in human rights violations in overseas contexts.
1.101As noted in clause 8, public authorities also include ‘a private entity … performing functions of a public nature (whether under contract or otherwise).’
1.102A reasonable interpretation of this provision would be inclusive of (for example) security contractors – whether Australian or locally employed – in jurisdictions such as Manus Island, responsible for undertaking public duties on behalf of the Australian Government.
1.103As such, people – including non-citizens – under the control and jurisdictional influence of the Australian Government (by locally employed contractors, for example) should be protected by, and have access to, the rights contained within the proposed Human Rights Act, and clarification should be made on this.
Recommendation 8
1.104Include in right to life which includes the right to be free from genocide to also include the right to be free from cultural genocide
1.105Amend paragraph 12(4)(b) to include the right to be free from cultural genocide.
1.106During the drafting of the Genocide Convention in 1948, Australian delegates argued against the inclusion of cultural genocide, a key principle of the original concept of this “crime of all crimes”. It is time to move beyond these limitations and fully align with international law obligations.
Recommendation 9
1.107That the proposed Human Rights Act have application to private businesses and not limited to public agencies.
1.108Noting that the Australian Human Rights Commission recommends the inclusion of a private business ‘opt in clause’.[50]
1.109However, noting the minimal take-up of businesses opting in to the Queensland Human Rights Act, this paper strongly recommends that the proposed Human Rights Act be compulsorily extended to private businesses.
1.110The Law Council of Australia also emphasised that the government's role in protecting human rights includes a 'duty to protect individuals from rights abuse by third parties including business', and recommended it employ both legislative and administrative means to accomplish this.[51]
1.111This was supported by submitters including the Environmental Defenders Office, who stated any Act should 'impose a duty on businesses and other private actors to act consistently with human rights, and should include accessible remedies for harmful interference on human rights by private actors.’[52]
1.112Arguably the biggest gains in human rights in Australia over the past decade have been through corporate commitments widely adopted by the private sector, based on a clear understanding of the need for a stable, rules based and sustainable international and domestic business environment.[53]
1.113To complement a federal Charter, Australia must consider enacting a broader mandatory human rights due diligence law that applies to all businesses operating within Australia (including their activities overseas). This would involve requiring businesses to undertake due diligence to identify, prevent and mitigate human rights and environmental harms, and to provide access to remedy for affected individuals and communities wherever harm occurs.[54]
Recommendation 10
1.114That provisions for funding should be made for accessibility to pathways to justice for people and groups whose whole human rights have been impacted as per the Human Rights Act.
1.115That provisions for funding should be made for accessibility to pathways to justice for people and groups whose whole human rights have been impacted as per the Human Rights Act and require and / or are seeking a remedy. Funding for access to justice should fall outside of the scope of simply the Human Rights Commission and be inclusive of meeting full funding requirements for legal services, domestic violence services, community legal services, First Peoples community controlled organisations, and grassroots human rights defenders to further enhance the promotion and protection of human rights. This must extend to civil and family law matters.
1.116The Queensland Human Rights Commission submitted that at a minimum, legal assistance providers such as Legal Aid commissions and community legal centres must be adequately funded to advise and act for people subject to human rights limitations by government agencies.[55]
The lack of funding for women who have experienced gender-based violence in family law, immigration law, discrimination and employment law, social security and other areas of civil law, (as well as in state/territory based issues such as protection orders and tenancy) has similar human rights implications…For example, parenting orders which provide for care arrangements that do not recognise the risks posed by a violent father, can have serious and sometimes fatal consequences, directly impinging on a mother and her children’s right to life and to live free from violence.[56]
Recommendation 11
1.117That group rights - in particular for Sovereign First Nations - be included in the proposed Human Rights Act.
1.118Group rights, also called collective rights, are the rights held by a group as a whole rather than by each of its individual members.
1.119This submission strongly recommends that the rights contained within the proposed Human Rights Act – in particular self-determination – should be unequivocally extended to be inclusive of ‘group rights.’ This should be clarified in the preamble, that where relevant, the group rights of peoples – especially Sovereign First Nations – should be protected under the Act.
1.120The issue of group rights is clearly a live and important issue, which the AHRC and this committee were unable to grapple with. With regards to participation duty the AHRC offered:
an alternative to a standalone ‘right to self-determination’ in the Human Rights Act, because of the vagueness and complexity of the term, and the associated potential difficulties with litigating collective self-determination claims in court.[57]
1.121However, group rights are central to redressing human rights abuses and as such, must be and 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.
1.122Group rights are critical, not just for First Peoples, but for all Peoples who are collectively harmed, especially with respect to environmental destruction.
Recommendation 12
1.123That the right to a healthy environment should be amended to the right to a clean, healthy, and sustainable environment, in line with international law.
Human rights cannot be enjoyed without a safe, clean, healthy and sustainable environment, and sustainable environmental governance cannot exist without an enabling environment for exercising environmental rights.[58]
1.124This submission strongly recommends that the proposed Human Rights Act contains protections upholding the right to a clean, healthy, sustainableenvironment as articulated in line with international human rights law.
1.125This right must not be unduly narrowed as proposed by the committee, which makes it inconsistent with international law. Having the right only relates to ‘unlawful pollution’ – where this country's pollution standards are woeful and damaging to the environment, and therefore renders the whole provision useless.
1.126The term ‘unlawful’ should not be adopted as it implies that lawful pollution is acceptable even where it produces adverse health consequences, an implication which contradicts the very definition of the right to a healthy environment.[59]
1.127The right to not be subjected to harmful pollution should not be confined to legal interpretation of what is ‘lawful’ and ‘unlawful’ or potential ‘carve outs’ in legislation that could make harmful pollution lawful…Such framing has the potential to seriously reduce the circumstances in which the right would be relied upon and implies that lawfulness eliminates the need for protection of the right.[60]
1.128As such, clause 40 should be amended to read “the right to a clean, healthy and sustainable environment” in line with international law. The right to a healthy environment should include a fully justiciable right for individuals and groups to the human right to a healthy environment the wording to the right should include ‘specific language recognising the unique reciprocal relationship of Aboriginal and Torres Strait Islander peoples to lands and waterways and the related right to free, prior and informed consent in relation to any proposed projects that might impact their territories’,[61] that explicitly recognise how the right to a clean, healthy and sustainable environment is inseparable from the rights to culture, health and self-determination for First Peoples.
1.129The right to a clean, healthy and sustainable environment is inseparable from the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander people. All of them must be protected to fully realise Aboriginal and Torres Strait Islander people’s rights. The drafting of the right in a federal Human Rights Act, should explicitly recognise this relationship for Aboriginal and Torres Strait Islander people.[62]
1.130Submitters considered the AHRC’s proposed framing of the right to be to narrow and argued that the right should not be limited to an exhaustive list of substantive elements:[63]
interpretation of the right will evolve as our understanding of State obligations under international human rights law in relation to the environment evolves, noting that human rights treaties are considered living instruments that must evolve over time and be interpreted in light of present conditions.[64]
1.131The right to a healthy environment should be defined broadly to allow it to adapt and evolve as Sovereign cultural knowledge becomes accepted as best practice, and to evolve with international law and in a changing environment and with changing scientific knowledge in line with submissions from the Environmental Defenders Office.
Recommendation 13
1.132That clause 42, the right to social security should be amended to read the right to access safe, secure, and adequate social security.
1.133Jesuit Social Services submitted that the most disadvantaged people in society experience multiple and long-term disadvantages based on the location where they live, including greater impacts of climate change and pollution, higher rates of poverty, and less access to public transport or healthcare, and face systemic barriers to get out of poverty.[65]
Recommendation 14
1.134That clause 39, the right to an adequate standard of living, be amended to read that every person has the right to an adequate standard of living, and have access to safe, secure and ongoing food, water, clothing and housing.
1.135The right to adequate housing is one of the most basic human rights and its importance was brought up by many submitters, who raised the issue of how insecure housing exposes people to violations of a wide range of other human rights. The right to housing is enshrined in international law. It is set in the International Covenant on Economic, Social and Cultural Rights (ICESCR). A big problem in this country is the use of housing in government policy as a means to create profits instead of protecting it as a basic need and a human right for all.
1.136The Progressive Law Network submitted that those in most need of human rights protections are also most vulnerable to homelessness.[66]
Recommendation 15
1.137That the government seek legal advice, and consider approaches of other jurisdictions to the issue of granting legal personhood to the environment for inclusion in any Human Rights Act at the five year review post commencement.
1.138Environmental personhood is about giving the environment or parts of the environment like our rivers, lakes, forests, and oceans the rights, protections, privileges, and responsibilities that actual people have. For our people we are no different to the environment, we don’t see ourselves as different from the lakes, the rivers, the animals, the sky. We are them and they are us. This is why giving the environment personhood is a solution that we must adopt urgently and across the globe, it is Indigenous people and local communities who have overwhelmingly acted as advocates for, as seen with the Whanganui River in in Aotearoa which granted legal personhood in 2017 after hundreds of years of resistance by the Māori People to aggressive colonisation.
1.139The design of rights-of-nature frameworks varies widely in geography, legal status, guardianship and who holds liability. This includes environmental personhood which grants natural entities a similar legal status to that of corporations, with three primary rights: legal standing, to enter contracts and to take legal action to protect themselves. This has been advanced in other jurisdictions, and gives recognition to the indivisibility of rights to life, culture, and Country of First Peoples. Ecuador was the first country to enshrine rights of nature in its 2008 constitution, followed by a number of other jurisdictions. A key feature of well designed rights-of-nature frameworks ensure accountability, i.e., who is ultimately liable, and what for.
In 2014, Te Urewera a beautiful forested area in the North Island of Aotearoa was granted legal personhood and owns land in its own right.
The Whanganui River in Aotearoa was declared a legal person in 2017
Again, in Aotearoa, Mount Taranakialso has legal personhood. Mount Taranaki is critically important to our Maori Family and their lore.
In India, the Ganges and Yamuna Rivers are now considered legal people in order to combat pollution.
Our Canadian Aboriginal family through the Innu Council also obtained legal personhood to the Magpie river.
The Yarra was recognised as a living, integrated entity as its traditional owners, the Wurundjeri people, had always known it, in a state act of parliament in 2017. Unlike Lake Erie and other locations in North America, the Yarra has not been made a legal person.
Recommendation 16
1.140That the Parliamentary Joint Committee on Human Rights (PJCHR) conduct an inquiry into the possibility of a constitutional clause that upholds human rights, including the responsibility of parliament and courts.
1.141Australia’s political and legal system creates barriers to protecting international human rights. Australia is the only liberal democracy without a federal bill or charter of human rights.[67]
1.142Instead, it relies on parliamentary sovereignty and a responsible government to uphold rights. This has resulted in a system of executive dominance that has tied the hands of courts, and eroded the very principle of the checks and balances that are supposed to accompany the separation of powers, making it difficult to uphold international human rights obligations. Australian governments have utilised parliamentary sovereignty to change laws or settle class actions to short-circuit legal cases and implemented prohibited practices.
I have recorded no less than five major High Court rulings where it has become apparent that the judicature has found itself unable to protect Australians and others from human rights abuses by Australian executive governments. Instead, federal governments have been able to force through legislation which defeats human rights – such as:legislation which now permits indefinite detention of legitimate asylum seekers including children, or legislation which extinguishes the cultural rights and heritage of First Nations people7 – and the High Court has found itself in the invidious position of being able to do nothing about it.[68]
1.143Careful consideration needs to be given as to how human rights could be included within the constitution so as not to have unintended consequences. The PJCHR would be well placed to conduct an inquiry into this question.
1.144I think constitutional enshrinement would be the ideal position, but the political reality is probably more about legal protections.[69]
1.145Professor Ben Saul, Challis Chair of International Law and current United Nations special rapporteur on human rights and counter-terrorism, considered statutory protection a 'poor cousin' of constitutional entrenchment.[70]
1.146I support that any Act be reviewed after five years of operation and the substance of these reviews should be led by the communities most impacted. I note that in Victoria community groups are able to provide submissions to the review of the operation of the Act, during four-year periodic reviews conducted by community legal centres, and those with lived experience are able to comment on the operation of the Act, which would then go towards potential amendments.
Recommendation 17
1.147That Truth and Treaty be progressed with immediacy. That the federal government must commence Treaty negotiations with First Peoples as a matter of urgency.
1.148Treaty, self-determination and the implementation of 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. Our people have long fought for a nationwide Treaty process between the government and First Peoples as a matter of 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.
1.149The inquiry into the UNDRIP touched on this.
We support the establishment of a human rights charter, but we don't think that will address the human rights needs of Aboriginal and Torres Strait Islander people. It's very difficult, I think, for governments that have governed Aboriginal and Torres Strait Islander people or Indigenous peoples around the world for over a century to get into their head that, in fact, as peoples, Indigenous peoples have the right to self-determination….I don't know if you have a strong understanding of the historic dealings with Aboriginal and Torres Strait Islander people, but at no stage have Aboriginal and Torres Strait Islander people been given the right to choose their political status. Perhaps a treaty might do that.[71]
The commission has been on the public record supporting a treaty for many years through social justice reports of the commission. In the reconciliation process, for example, that was a key recommendation in 2000. It was part of the social justice package in 1995 et cetera. So it has been a generational recommendation by the commission as well as the current developments.[72]
1.150This could include the establishment of a Truth and Justice Commissioner
1.151A Truth and Justice Commission is an independent body that investigates and reveals past wrongdoing to resolve ongoing and historical conflict, and to enable healing. The Commission would have the powers of a Royal Commission and would investigate and reveal wrongdoing and human rights abuses perpetrated against First Nations people since colonisation to the present day.
1.152Our journey to Treaty involves truth-telling and healing first. This means exploring, understanding, and reckoning with our painful past and the impact it continues to have on First Nations people and their cultures.
Recommendation 18
1.153That the government take urgent action on identified recommendations addressing human rights abuses, inequalities and oppression of Sovereign First People
1.154This can be achieved by:
Implementing key reports that have been ignored by successive governments including:
(a)The Royal Commission into Aboriginal Deaths in Custody (1991, 339 recommendations)
(b)Bringing Them Home: The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997, 54 recommendations)
(c)Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (2017, 227 recommendations)
(d)Australian Law Reform Commission - Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples - Report 133 (2018, 35 recommendations)
(e)A Way Forward. Final report into the destruction of Indigenous heritage sites at Juukan Gorge (2021, 8 recommendations)
Reviewing historical and current policies, legislation and practices against the conduct outlined in the Genocide Convention.
Progressing an audit of existing laws, policies, and practice for compliance with the core human rights instruments, including the UNDRIP, the Optional Protocol to the Convention Against Torture and other Curel, Inhuman or Degrading Treatment or Punishment (OPCAT), and the Convention on the Rights of the Child and the Genocide Convention immediately, starting with those most directly concerning First Peoples and breaching their rights.
This should include at the commonwealth level:
(a)Northern Territory Intervention
(b)Cashless Welfare Card
(c)Native Title Act 1993 (Cth)
(d)Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
(e)Environment and Biodiversity Conservation Act 1999 (Cth)
and that the Commonwealth government should work with state and territory legislation on:
(a)Child protection legislation
(b)Age of incarceration
(c)Bail, sentencing and detention, especially juvenile detention
(d)Legislation concerning Aboriginal and Torres Strait Islander land titles (in whatever form)
(e)State heritage legislation
1.155Throughout the inquiry, the committee heard about the ongoing inequality and oppression experienced by First Peoples, as evidenced by the soaring incarceration of our people, ongoing intergenerational trauma, multigenerational carceral experiences, poor health and low life expectancy and endemic poverty and discrimination. The above measures have been repeatedly identified as measures that would address human rights abuses currently occurring, and it would be remiss of the committee not to draw attention to them.
1.156These are also consistent with the issues raised in the JSCATSIA inquiry into the UNDRIP. The JSCATSIA inquiry into UNDRIP also highlighted 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.[73]
Recommendation 19
1.157That the Australian Government comply with international recommendations as per the 2021 Universal Periodic Review.
1.158Though 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.
1.159Every day, more of our cultural heritage and sacred sites are being destroyed, and with it our traditional knowledge and ability to practise 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.
1.160I therefore propose the following recommendations to specifically progress Australia’s adherence on Articles 11, 12 and 31 of the UNDRIP.
Recommendation 20
1.161That 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.
1.162That the government implement the following recommendations from the 2021 report Dhawura Ngilan:
amend its policy on Indigenous repatriation of cultural materials to align with current governmental practices, working with the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and communities to coordinate repatriation approaches;
work with Australian collecting institutions to return ancestors to Aboriginal and Torres Strait Islander communities in a coordinated way;
recognise and prioritise the rights of Aboriginal and Torres Strait Islander peoples to access and repatriate secret sacred materials held in Australia, both by institutions and private collectors
Senator Lidia Thorpe
Senator for Victoria
Footnotes
[1]Mr Les Malezer, Chairperson, Foundation for Aboriginal and Islander Research Action, Committee Hansard, 15 August 2023, p. 36.
[2]Ms Rachel Atkinson, Board Member, SNAICC National Voice for Our Children, Committee Hansard, 25 August 2023, p. 33.
[3]Professor Kim Rubenstein, Committee Hansard, 20 October 2023, p. 43.
[4]Amnesty International, Indigenous Peoples, (accessed 28 May 2024).
[5]Human Rights Law Centre, Submission 232, p. 52; Daniel Billy et al. v Australia, UN Human Rights Committee Communication No. 3624/2019 (2022).
[6]UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, (accessed 20 May 2024).
[7]Senator Lidia Thorpe, Committee Hansard, 12 May 2023, p. 19.
[8]Environmental Justice Australia, answers to questions on notice, 25 August 2023 (received 14September 2023) pp. 4–6; Environmental Justice Australia, Submission 150, pp. 8, 23. See also, Asian Research Institute for Environmental Law, Submission 237; Australian Lawyers for Human Rights, Submission 229, pp. 41–43.
[9]Ms Rachel Atkinson, Board Member, SNAICC National Voice for Our Children, Committee Hansard, 25 August 2023, p. 35.
[10]Ms Rita Jabri Markwell, Advisor, Australian Muslim Advocacy Network Ltd, Committee Hansard, 15 August 2023, p. 62.
[11]Mr Iain Anderson, Commonwealth Ombudsman and National Preventive Mechanism Coordinator, Office of the Commonwealth Ombudsman, Committee Hansard, 20 October 2023, p. 26.
[12]Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia (November 2023).
[13]Mr Yingiya Guyula MLA, Submission 51, pp. 2–3 to the Legal and Constitutional Affairs References Committee, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, 2022.
[14]Ms Rachel Atkinson, Board Member, SNAICC National Voice for Our Children, Committee Hansard, 25 August 2023, p. 35.
[15]Mr Darren Dick, Senior Policy Executive, Australian Human Rights Commission, Committee Hansard, 12 May 2023, p. 35.
[16]Australian College of Nursing, Submission 208, p. 4.
[17]Economic Justice Australia, Submission 34, pp. 7–8.
[18]Victorian Aboriginal Child Care Agency, Submission 175, p. 4.
[19]Economic Justice Australia, Submission 34, pp. 8–9; Economic, Social and Cultural Rights (ESCR) Network (Australia & Aotearoa/New Zealand), Submission 86, p. 21; Indigenous Law and Justice Hub, Submission 157, p. 5; Human Rights Law Centre, Submission 232, p. 50.
[20]National Justice Project, Submission 225, p. 18.
[21]Ms Rachel Saravanamuthu, Legal Policy Lead, Asylum Seeker Resource Centre, Committee Hansard, 25 August 2023, p. 29.
[22]Dr Bronwyn Kelly, Australian Community Futures Planning, Committee Hansard, 28 September 2023, p. 25.
[23]Economic, Social and Cultural Rights (ESCR) Network (Australia/Aotearoa/New Zealand), Submission 86, p. 6.
[24]Associate Professor Julie Debeljak, Submission 15, p. iv.
[25]Ms Chloe Wood, Managing Lawyer, Civil Law and Human Rights Unit, Aboriginal Legal Service of Western Australia Limited; Co-convenor, Western Australia for a Human Rights Act, Committee Hansard, 20 October 2023, p. 51.
[26]Law Council of Australia, Submission 120, p 12.
[27]Australian Human Rights Commission, Right to Self-Determination, https://humanrights.gov.au/our-work/rights-and-freedoms/right-self-determinationRight to Self-Determination, (accessed May 13, 2024).
[28]Matthew Saul, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’, Human Rights Law Review, 11:4, 2011, pp. 609–644.
[29]Case Concerning East Timor (Portugal v Australia) (Merits)[1995] ICJ Reports 95/19, [102].
[30]International Covenant on Economic, Social and Cultural Rights, article 1.
[31]Foundation for Aboriginal and Islander Research Action, Submission 124, pp. 3–4; Victorian Aboriginal Child Care Agency, Submission 175, p. 3; NSW Aboriginal Women’s Advisory Network, Submission 113, pp. 6, 13; National Justice Project, Submission 225, p. 4.
[32]Ms Chloe Wood, Managing Lawyer, Civil Law and Human Rights Unit, Aboriginal Legal Service of Western Australia Limited; Co-convenor, Western Australia for a Human Rights Act, Committee Hansard, 20 October 2023, p. 51.
[33]Law Council of Australia, Submission 120, p. 14; NSW Aboriginal Women’s Advisory Network, Submission 113, p. 4; Victorian Aboriginal Child Care Agency, Submission 175, p. 7; Indigenous Law and Justice Hub, Submission 157, p. 12; Human Rights Law Centre, Submission 232, p. 47; Australian Lawyers Alliance, Submission 83, p. 11.
[34]Environmental Justice Australia, answers to questions on notice, 25 August 2023 (received 14September 2023) pp. 4–6; Environmental Justice Australia, Submission 150, pp. 8, 23. See also, Asian Research Institute for Environmental Law, Submission 237; Australian Lawyers for Human Rights, Submission 229, pp. 41–43.
[35]UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res. A/RES/61/295 (2007).
[36]Indigenous Law and Justice Hub, Submission 157, p. 17.
[37]Australian Human Rights Commission, Right to Self-Determination, https://humanrights.gov.au/our-work/rights-and-freedoms/right-self-determinationRight to Self-Determination, (accessed May 13, 2024).
[38]Proposed subclause 47(4) states ‘giving proper consideration to a human right in making a decision includes’: (c) ensuring the participation of: (i) Indigenous peoples in decisions that directly or disproportionately affect Indigenous peoples.
[39]Australian Human Rights Commission, Free & Equal Position Paper: A Human Rights Act for Australia, December 2022, pp. 161.
[40]Indigenous Law and Justice Hub, Submission 157, p. 16.
[41]Deafblind Australia, Submission 87, pp. 3–4.
[42]Australian Human Rights Commission, Free & Equal Position Paper: A Human Rights Act for Australia, December 2022, p. 16.
[43]Australian Human Rights Commission, Free & Equal Position Paper: A Human Rights Act for Australia, December 2022, p. 130.
[44]Emphasis added.
[45]UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, https://ich.unesco.org/en/convention (accessed 20 May 2024).
[46]UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res. A/RES/61/295 (2007).
[47]UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res. A/RES/61/295 (2007).
[48]Human Rights Commission, Appendix 4: Elements of a Common Understanding of Free, Prior, and Informed Consent in the Social Context, (accessed 5 April 2024).
[49]UK Parliament, The Government’s Independent Review of the Human Rights Act, 8 July 2021, (accessed 19 May 2024).
[50]Australian Human Rights Commission, Free & Equal Position Paper: A Human Rights Act for Australia, December 2022, p. 150.
[51]Law Council of Australia, Submission 120, p. 29.
[52]Environmental Defenders Office, Submission 147, p. iii.
[53]Civil Liberties Australia, Submission 51, p. 11.
[54]Human Rights Law Centre, Submission 232, p. 15.
[55]Queensland Human Rights Commission, Submission 142, p. 48.
[56]Women’s Legal Service NSW, Submission 97, p. 9.
[57]Australian Human Rights Commission, Free & Equal Position Paper: A Human Rights Act for Australia, December 2022, p. 192. See also, pp. 192–195.
[58]Asian Research Institute for Environmental Law, Submission 237, p. 3.
[59]Australian Human Rights Institute, Submission 69, p. 17.
[60]Environmental Justice Australia, Submission 150, p. 8.
[61]Dr Genevieve Wilkinson, Co-convenor, Economic, Social and Cultural Rights (ESCR) Network (Australia & Aotearoa/New Zealand, Committee Hansard, 20 October 2023, p. 1.
[62]Human Rights Law Centre, Submission 232, p. 52.
[63]See paragraph 6.91 of the committee’s report, and see for example, Environmental Justice Australia, Submission 150, p.6; Environmental Defenders Office, Submission 147, p. 5.
[64]Environmental Defenders Office, Submission 147, p. 5.
[65]Jesuit Social Services, Submission 173, p. 8.
[66]Progressive Law Network, Submission 127, p. 3.
[67]Jamal Barnes, ‘Suffering to Save Lives: Torture, Cruelty, and Moral Disengagement in Australia’s Offshore Detention Centres’, Journal of Refugee Studies, vol. 35, no. 4, 2022, pp. 1508–1529.
[68]Australian Community Futures Planning, Submission 17, p 8.
[69]Ms Anna Brown OAM, Chief Executive Officer, Equality Australia, Committee Hansard, 28 September 2023, p. 23.
[70]Professor Ben Saul, Submission 251, p. 5.
[71]Mr Les Malezer, Chairperson, Foundation for Aboriginal and Islander Research Action, Committee Hansard, 15 August 2023, p. 34.
[72]Mr Darren Dick, Senior Policy Executive, Australian Human Rights Commission, Committee Hansard, 12 May 2023, p. 36.
[73]Mr Yingiya Guyula MLA, Submission 51, pp. 2–3 to the Legal and Constitutional Affairs References Committee, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, 2022.
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