2. Implementation in Australia
   1. This Chapter outlines how the United Nations Declaration of the Rights of Indigenous People (UNDRIP or the Declaration) is being implemented in Australia, and where principles are being applied within each Stateand Territory jurisdiction in Australia.

Implementation of UNDRIP in Australia

2.2Australia is not legally bound by UNDRIP. According to the Attorney-General’s Department, ‘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[s] and their communities’.[1]

2.3There are many ways that UNDRIP can be implemented, and this is demonstrated in the different approaches taken internationally, which have had varying levels of success. Associate Professor Hannah McGlade told the Committee, that she is not sure she ‘can point to any country that is doing a great job of implementing the Declaration’.[2]

2.4In Australia, there is currently no single or centralised mechanism for implementing UNDRIP. However, there are examples of polices or programs governments, parliaments and broader civil society assert as ways in which they seek to apply UNDRIP Articles.

2.5The implementation of the Uluru Statement from the Heart is one mechanism that aligns with the principles of UNDRIP. This is explored in relation to States and Territories in this Chapter, and in the Commonwealth context in Chapter4.

2.6Throughout the inquiry, government departments that appeared before the Committee[3] pointed to the following initiatives, as how they were undertaking to give practical effect to UNDRIP Articles, for example:

• The National Agreement on Closing the Gap, specifically Priority Reform2 which requires government departments to engage in shared decision-making[4] (see further in this Chapter)
• The Empowered Communities program, a mechanism for Aboriginal and Torres Strait Islander people in these communities to ‘make decisions in the development, delivery and evaluation of programs and services that affect them’[5]
• Seeking to increasing the presence of Indigenous business in international trade, including by delivering a pilot project to build capacity through the ‘Growing Indigenous Businesses through the Trade for Indigenous Entrepreneurs’ program[6]
• The establishment and appointment of the Ambassador for First Nations People position to ‘lead Australia’s international engagement on Indigenous issues at various UN meetings and forums’[7]
• The National Justice Reinvestment Program to support ‘up to 30 place based and community led justice reinvestment initiatives across Australia to address the drivers of incarceration and contact with the justice system’.[8]
  7. In her evidence to the Committee, Associate Professor McGlade noted that Australia does not have an appropriate robust system of engaging forward, and the federation is often used as the reason that we can’t do this or that.[9]
  8. This is not a unique experience, and the Hon Murray Rankin KC MLA, the Minister of Indigenous Relations and Reconciliation, Government of British Columbia, Canada also noted the complexity of this context:

The complexity of Canada is not dissimilar to what I understand is the case in Australia—namely, we are a federation. Responsibility for Indigenous peoples primarily lies in the Federal Court, so we are working in what are called coordination agreements amongst the federal, provincial and the First Nation involved to make sure that we get it right to meet their specific needs.[10]

2.9Throughout the inquiry, witnesses and submissions provided information about the implementation of UNDRIP in Australian States and Territories and across civil society. At a high-level, the evidence shows there are four ways in which UNDRIP is being implemented in Australia. While not necessarily as a holistic implementation of the UNDRIP Articles, the following four areas are explored in this Chapter:

• application of UNDRIP in relation to jurisdiction’s human rights mechanisms
• implementation of the Uluru Statement from the Heart
• commitments to partnership-based approaches with First Nations peoples to develop policy', and
• industry or sector specific approaches to applying UNDRIP.

UNDRIP principles in human rights mechanisms

2.10Some jurisdictions in Australia have human rights Charters, Acts, or mechanisms that expressly incorporate, or align closely with, UNDRIP principles. This includes the Australian Capital Territory (ACT), Victoria (Vic), and Queensland (Qld).

2.11Section 27 of the ACT’s Human Rights Act 2004 (ACT) (ACT Human Rights Act) codifies cultural and other rights of Aboriginal and Torres Strait Islander peoples in the Territory (as well as other minorities)[11], including the rights:

1. to maintain, control, protect and develop their—

1. cultural heritage and distinctive spiritual practices, observances, beliefs and teachings
2. languages and knowledge
3. kinship ties, and

2. to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.[12]
   12. The ACT Human Rights Act identifies UNDRIP, Articles 25 and 31, as the primary source of these rights, being the recognition and protection of ‘spiritual, material and economic relationships with land, waters and…cultural expressions of these relationships.’[13]
   13. Queensland’s Human Rights Act 2019 (Qld) recognises the ‘special importance’ of human rights for Aboriginal and Torres Strait Islander peoples in the State and notes their pre-existing right to self-determination.[14] Section28 specifies the cultural rights of Aboriginal and Torres Strait Islander peoples in the State.
   14. Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter) predates the UN General Assembly’s 2007 resolution on UNDRIP, but mirrors some of the Declaration’s principles by recognising specific rights of Aboriginal peoples in Victoria within its preamble.[15] The Victorian Charter recognises Aboriginal peoples’ distinct cultural rights, including:

• to enjoy their identity and culture
• to maintain and use their language
• to maintain their kinship ties, and
• to maintain their distinctive spiritual, material and economic relationships with the land and waters and other resources with which they have connections under traditional laws and customs.[16]
  15. Interestingly, most of these human rights documents incorporate UNDRIP-related rights in a preambular sense. Despite a preambular framing not necessarily giving the same legal force as a substantive principle, the political ethos has led to governments and courts responding to the moral underpinnings of these concepts, translating to substantive actions. For example, when asked about the practical benefits from activating the relevant UNDRIP principles that are reflected in their human rights structures, the ACT Human Rights Commission President and Commissioner, Dr Watchirs OAM, stated ‘in terms of on the ground, it has influenced legislation, policies and practices and litigations’.[17] Further, Dr Watchirs OAM noted:

In other jurisdictions, such as Victoria, there was a case in VCAT about a woman who was evicted because she had not received eviction notices when she was on sorry business in the region. Not only was it overturned but there was also actually a positive duty for the housing authorities to have an NGO supporting her in her tenancy. So that was a complete turnaround. There was a similar case in Queensland of traditional owners protesting about pastoral leases and police moved them on. Because of the complaint mechanism in Queensland that was reversed and police issued a statement of regret saying that that wouldn’t happen in the future.[18]

2.16It is important to note that these sub-national references to UNDRIP are specific and in practice recognise only certain rights of Indigenous peoples. Furthermore, Australian governments have also enacted policies and legislation in direct contravention of UNDRIP, revealing a general lack of protection for the rights of Aboriginal and Torres Strait Islander people across all domestic jurisdictions.[19]

2.17In addition, all States have incorporated recognition of First Peoples in their legislated Constitutions.[20] For example, in 2015, Western Australia amended its Constitution to include in the preamble recognition of ‘Aboriginal people as the First People of Western Australia [and that the] Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia’.[21]

2.18The South Australian Constitution is also worth noting in part for its detailed acknowledgement of Aboriginal and Torres Strait Islander rights and a history of past injustices and dispossession. The South Australian Constitution acknowledges the role of the ‘Parliament of the United Kingdom in erecting South Australia into a British Province’ and providing for the ‘Colonisation and Government of South Australia’ without the ‘proper and effective recognition, consultation or authorisation of Aboriginal peoples of South Australia’.[22] This is followed by an extensive acknowledgment of ‘Aboriginal peoples as traditional owners and occupants of lands and waters’ who ‘maintain cultural and heritage beliefs, languages and laws which are of ongoing importance’.[23]

2.19The South Australian Constitution more recently includes a distinct provision for the ‘Recognition of importance of First Nations Voices’ following the successful passage of the First Nations Voice Act 2023 (SA).[24] This intends to reflect ‘the importance of listening to the Voices of First Nations people if there is to be a fair and truthful relationship between First Nations and non-First Nations people of South Australia’.[25]

2.20It is important to observe that where constitutional recognition is provided at a sub-national level, such provisions contain a non-legal effect clause to indemnify the State of any wrongdoing or future claims. It means that while these clauses may provide a positive requirement for the State to take certain steps to achieve reconciliation, or recognise the impacts of colonisation, they are essentially non-justiciable, and therefore rely only on moral effect.

Response to the Uluru Statement from the Heart

2.21The following paragraphs outline how the States and Territories have sought to give effect to calls for Voice, Treaty, and Truth over recent years. Australian States and Territories are at various stages of responding to and implementing the requests called for in the Uluru Statement from the Heart, including its intersection with UNDRIP. At the referendum on 14 October 2023, a majority of voters in all jurisdictions, except the Australian Capital Territory, opposed the proposed constitutional provision. After the referendum, opposition parties in at least two jurisdictions (Queensland and Northern Territory) have withdrawn support for treaty and truth-telling processes already under way; in New South Wales, the premier has said, post-referendum, that a state treaty would now not progress past consultation and planning until after the next election.

2.22On 8 June 2018, the Northern Territory (NT) Government signed a memorandum of understanding called theBarunga Agreement, with the Northern, Central, Anindilyakwa and Tiwi Land Councils, pledging to work towards a treaty or treaties with Aboriginal peoples.[26] TheBarunga Agreement calls on the NT Government to recognise Aboriginal peoples’ rights in accordance with UNDRIP.[27] The Agreement includes the statement that:

[T]he Treaty must provide for substantive outcomes and honour the Articles of the United Nations Declaration on the Rights of Indigenous Peoples.[28]

2.23In its submission to the inquiry the NT Government states that:

The NT Government is committed to continuing the journey towards treaty and is working with Northern Territory land councils in order to continue to develop a path towards a treaty or treaties. This includes working in partnership to ensure a treaty making framework that builds stronger, safer, more resilient communities, clan groups and families.

…

At the heart of a treaty is self-determination. A treaty will provide a path to lasting reconciliation and a path to achieving equity and equality.[29]

2.24In addition to its working towards treaty with Aboriginal peoples, the NT Government has expressed its support for a federal Voice to Parliament.[30] On 16 February 2023 theLegislative Assembly of the Northern Territory unanimously passed a motion in support of the Voice to the Commonwealth Parliament.[31]

2.25Queensland’s ‘Path to Treaty’ began in 2019 with the release of the Queensland Government’s Statement of Commitment (the Statement) and the aim of achieving a treaty, or treaties, between the Aboriginal and Torres Strait Islander Nations, peoples of Queensland, and the Queensland Government.[32] TheStatement acknowledges past wrongs and expresses hope for the future in working collaboratively with Aboriginal and Torres Strait Islander peoples to achieve treaty:

…the past acts of dispossession, settlement and discriminatory policies, and the cumulative acts of colonial and State governments since the commencement of colonisation which have left an enduring legacy of economic and social disadvantage that many Aboriginal and Torres Strait Islander peoples have experienced and continue to experience.

…

We will move forward together with a mutual respect, recognition and a willingness to speak the truth about our shared history.[33]

2.26In February 2023, the Queensland Government introduced its Path to Treaty Bill2023, providing for a five-phase treaty negation process, including the establishment of a First Nations Treaty Institute and Truth-telling and Healing Inquiry. The final phase, to commence in 2024, will be the development of a treaty negotiation framework by the First Nations Treaty Institute, and the establishment of a Treaty Authority and Tribunal to deal with disputes, with treaty negotiations to begin subsequently.[34]

2.27The bill was passed with amendments by the Queensland Parliament on 10May2023—Path to Treaty Act 2023 (Qld).[35]

2.28On 9 February 2023, the First Nations Voice Bill 2023 was introduced to the SAParliament, with the First Nations Voice Act 2023 (SA) being passed into law on26March 2023.[36] The First Nations Voice will be a direct and independent line ofcommunication for First Nations people to South Australia’s Parliament and thegovernment’.[37] It will have six electorates, and elections will be held on 16March2024.[38]

2.29While the First Nations Voice Act 2023 (SA) does not specifically reference UNDRIP, the Act is consistent with articles within UNDRIP. These include the right to self‑determination, autonomy and self-government (Article 4), and the right to participate in decision-making through representatives chosen by themselves (Article18).

2.30The Tasmanian Government is pursuing treaty and truth-telling in partnership with Aboriginal peoples in Tasmania. In 2022, the Premier, the Hon Jeremy Rockliff MP, and the Minister for Aboriginal Affairs, the Hon Roger Jaensch MP, met with Aboriginal community representatives to begin discussions on how a treaty and truth‑telling process should proceed. Following these initial discussions, nominations were invited from Aboriginal peoples to join an advisory group to lead the design of a treaty and truth-telling process with the Tasmanian Government.[39]

2.31In June 2018, the Victorian Parliament passed the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) (Treaty Act) as the basis for negotiating a treaty with Aboriginal Victorians. The Treaty Act aims to progress efforts towards reconciliation and self-determination for Aboriginal peoples in the State.[40] Thepreamble text identifies the significance of UNDRIP to the treaty making process:

…the importance of the treaty process proceeding in a manner that is consistent with the principles articulated in the United Nations Declaration on the Rights of Indigenous Peoples, including free, prior and informed consent.[41]

2.32Emerging from this process, the Victorian Government, inagreement with the FirstPeoples’ Assembly of Victoria, established the Yoorrook Justice Commission in March 2021. The Yoorrook Justice Commission—Yoorrook being the Wemba Wemba word for truth—is a formal truth-telling royal commission investigating historical and ongoing injustices experienced by First Peoples in Victoria. The Commission’s ceremonial first hearing was held on 24March2022, and further hearings focusing on Elders’ truths, and the child protection and criminal justice systems have occurred.[42] To date, the Commission has produced two reports and one interim report.[43]

2.33In June 2022, the Treaty Authority and Other Treaty Elements Act 2022 (Vic) passed the Victorian Parliament, establishing a Treaty Authority and its ongoing operation to act as an independent ‘umpire’ to oversee Treaty negotiations between the State and Aboriginal negotiating partners.[44] It also establishes the Self-Determination Fund, which the State will provide ‘not less than $65million as partial funding to support First Peoples to have equal standing with the State in Traditional Owner Treaty negotiations’.[45]

2.34While UNDRIP has not been adopted into Victorian law, the Victorian Government’s consultation and cooperation with the First Peoples’ Assembly of Victoria, theTreatyAct and the establishment of the Yoorrook Justice Commission uphold UNDRIP principles related to self-determination, consultation and cooperation, representation and participation in decision making, as stated in the Treaty Act’s preamble.[46]

2.35In 2008 the Australian Capital Territory (ACT) passed the Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT) (the ATSIEB Act). While the body predates the call for a Voice to Parliament under the Uluru Statement from the Heart in 2017, it provides a formal and legislated mechanism for the ACT’s Aboriginal and Torres Strait Islander community to vote for representatives and for their representatives to have the authority to enter into formal agreements, policy development, and to effect accountability of the ACT Government.[47]

2.36In its submission to the inquiry the ACT Government states that:

The ATSIEB Act also includes provisions for the Elected Body to hold public hearings about government service provision. This strengthens the accountability of the ACT Government within this formal partnership model and aligns to the overarching National Agreement requirement of establishing an independent mechanism that will support, monitor and report on the transformation of mainstream agencies and institutions.[48]

2.37The ACT Government continues to pursue a treaty in the Territory, stating in its submission to the inquiry that:

In accordance with Article 37, the ACT Government has committed to negotiating a treaty with Aboriginal and Torres Strait Islander people. Initial consultations were held with the United Ngunnawal Elders Council, with further work still to occur across the varying Traditional Custodian groups and broader Aboriginal and Torres Strait Islander community.[49]

2.38On 8 February 2023 the Legislative Assembly for the ACT unanimously passed a motion supporting the Uluru Statement from the Heart and the establishment of a Voice to Parliament.[50]

Partnership approaches to policy development

National Agreement on Closing the Gap

2.39According to the National Indigenous Australians Agency (NIAA), the National Agreement on Closing the Gap ‘provides a practical and effective example of the principles of UNDRIP in action’.[51]

2.40The National Agreement on Closing the Gap is between the Commonwealth, State and Territory Governments, the Australian Local Government Association and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks). It was negotiated under the Partnership Agreement of Closing the Gap. The National Agreement identifies four priority reforms which go to the structural changes required by governments in order to improve outcomes for First Peoples:

1Formal partnerships and shared decision making

2Building the community-controlled sector

3Transforming government organisations

4Shared access to data and information at a regional level

2.41NIAA further advised that the Closing the Gap strategy embodies key principles of UNDRIP, such as self-determination, decision-making, consent and partnership.[52] However, it is important to note that the totality of UNDRIP in its fullness is not necessarily realised through the National Agreement. Specifically, the Declaration is not cited or mentioned in either the National Agreement or Partnership Agreement, despite some of its common principles being embodied throughout.

2.42In its submission to the inquiry the ACT Government describes the relationship between the policy elements of Closing the Gap and UNDRIP, including how they are mutually reinforcing:

…the application of commitments under the National Agreement on Closing the Gap provides opportunity to strengthen the alignment of jurisdictional Implementation Plans with the UNDRIP. … While the delivery of the socio-economic outcomes will respond to specific needs of Aboriginal and Torres Strait Islander peoples and will align to articles under the UNDRIP, it is the Priority Reforms that will enable this. …These socio-economic targets align to the articles and rights of Indigenous peoples under the UNDRIP and ensure that Aboriginal and Torres Strait Islander peoples have a genuine say in the design and delivery of services that affect them, so that they can achieve better life outcomes. … Embedding the Priority Reforms and delivery against the socio-economic outcomes under the National Agreement will significantly improve adherence to the principles of the UNDRIP.[53]

2.43The Australian Human Rights Commission (AHRC) stated that while Closing the Gap is considered Australia’s ‘key policy platform to give effect to [UNDRIP]’, its consistency with UNDRIP could be enhanced.[54] The AHRC recommended that the Partnership Agreement and the National Agreement include a human rights-based approach centring on UNDRIP and that the required implementation plans, and annual reports also incorporate the Declaration.[55]

2.44Other submitters also suggested the National Agreement should align with UNDRIP. For example, Dr Adam Heaton submitted that the Commonwealth, State and Territory Governments need to align their efforts to achieve the four priority reforms of the National Agreement on Closing the Gap with UNDRIP.[56]

2.45Dr Heaton further submitted that by ‘genuinely implementing the four priority reforms’,[57] governments will achieve the Closing the Gap targets and enable self‑determination as provided for by UNDRIP Articles 3 and 4.[58] This, Dr Heaton advises, will ‘ensure human rights and achieve better outcomes for Aboriginal and Torres Strait Islander people’.[59]

2.46The South Australian Government also provided evidence to the Committee supporting the idea that the principles of UNDRIP can be implemented through action taken against the priority reforms, stating:

The principles underpinning the Priority Reforms are enablers for the change required to improve outcomes for Aboriginal and Torres Strait Islander people and align with many of the rights and fundamental freedoms set out in the UNDRIP. These include protection and support of culture, the right to self‑determination, freedom from discrimination and racism, participation in decision-making, the right to maintain and develop political, economic and social systems or institutions, and the right to the improvement of economic and social conditions.[60]

2.47The Lowitja Institute stated that if Commonwealth, State, and Territory governments are committed to the National Agreement on Closing the Gap, ‘alignment with UNDRIP and achievement of the many goals within it must be a core objective’.[61] Change the Record suggested that UNDRIP should be incorporated into Closing the Gap implementation plans which are prepared by each jurisdiction.[62] However, careful consideration as to whether this would be in addition to, or instead of holistic and national implementation of UNDRIP is important.

2.48The Northern Territory Government recognised the relationship between UNDRIP and the National Agreement in its submission to the inquiry, stating that:

The NT Government, in partnership with Aboriginal organisational representatives and the other tiers of government, is implementing the National Agreement on Closing the Gap and this implementation indirectly ensures the rights contained in UNDRIP are realised within the Northern Territory.

Through the National Agreement, the NT Government is focusing our reform on two of the key themes of UNDRIP; self-determination and equality.[63]

2.49In its submission to the inquiry, the Western Australian (WA) Government highlighted its efforts to work with a broad range of partners on meeting its obligations under the National Agreement, stating:

The WA Government is focused on the development of partnerships, shared decision making and genuine engagement with Aboriginal people at the state, regional and local levels.

The WA Government is working closely with Aboriginal stakeholders at the national level, including through Policy Partnerships under the National Agreement. These involve a collaborative process, incorporating all government jurisdictions and representatives of the Coalition of Peaks, to ensure a joined-up approach.[64]

2.50There is evidence that UNDRIP Articles are being incorporated into certain policies and programs. However, this should not be considered a fulfilment of the rights outlined in UNDRIP. Ultimately, efforts to apply UNDRIP Articles in Australia are occurring at different paces and with various focuses. Certain principles are prioritised over others and typically efforts occur in the absence of a coordinated guiding framework. This is an important pattern to observe in terms of the ongoing success of implementation. Professor Castan told the Committee that internationally the shortcomings of Nation States’ efforts come down to coordinated implementation:

At their core the shortcomings are a failure of implementation. InAustralia already there is some evidence of the implementation of UNDRIP principles. It’s patchwork and ad hoc, and implementation will be complex, requiring thoughtful attention to the myriad contexts in which First Nations peoples interact with the state.[65]

Industry or sector application of UNDRIP

2.51Industry and non-government organisations are taking increased interest in UNDRIP as a means of improving their sector practices and community engagement. As such, various submissions and witness evidence to this Committee outlined the application of UNDRIP in guiding the work of their organisations.

2.52The Fred Hollows Foundation provided evidence of how UNDRIP has come to shape the organisation’s Indigenous Australia Program Strategy 2020–2024:

In 2021 the Foundation accepted the call of Reconciliation Australia to move from safe to brave and in doing so identified assessing itself against the UNDRIP as a way of promoting this shift and ensuring continuing action and accountability to Aboriginal and Torres Strait Islander Communities.[66]

2.53As part of this strategy, the Fred Hollows Foundation is also developing a practical tool to support the organisation to take the necessary steps and assess its actions relative to UNDRIP principles as part of any engagement work.[67]

2.54Terri Janke and Company, an Indigenous owned and operated law firm, has come to ‘extensively advocate for and rely directly upon’ Articles of UNDRIP in ‘day-to-day practice’. The firm has developed a licensed product True Tracks based on the principles of UNDRIP, that provides guidance to private and public sector organisations on best-practice engagement with Indigenous peoples.[68]

2.55Supply Nation, Australia’s largest national procurement directory of Aboriginal and Torres Strait Islander businesses, provided evidence that a strong, vibrant and sustainable Indigenous business sector can underpin Indigenous economic self‑determination and development that forms a central concern of UNDRIP.[69]

2.56Indigenous Business Australia, a statutory body with the objective of greater economic independence and self-sufficiency for Aboriginal and Torres Strait Islander peoples, ‘seeks to adhere to the declaration, within the limits of its own remit and legal and governance framework’.[70]

2.57Woodside Energy Group Ltd, Australia’s largest natural gas producer, has developed an ‘Indigenous Communities Policy’ that makes specific mention of ‘being guided by UNDRIP’ as essential to ensuring improved relationship and dealings with Aboriginal and Torres Strait Islander peoples.[71]

2.58The University of Tasmania (UTAS) details in its submission how UNDRIP principles can be applies through policies and programs at universities. UTAS provides examples such its Strategic Plan for Aboriginal Engagement and its implementation of the Australian Government’s Indigenous Student Success Program.[72] Further, UTAS suggests advocating for the consideration of Indigenous outcomes in global university rankings.[73]

2.59Finally, the Australian Council of Trade Unions (ACTU) recommends that the AustralianGovernment ratify ILO Convention 169.[74] ILOConvention169 is particularly relevant to industry as it establishes rights and obligations around Indigenous recruitment and conditions of employment; vocational training, handicrafts and rural industries; and social security and health.[75]

2.60Across Australian society, UNDRIP appears to have a growing salience in how sectors understand and articulate their responsibilities to Aboriginal and Torres Strait Islander communities. The Committee heard about the responses from civil society in their proactive efforts to apply UNDRIP to their operating practices. However, the effectiveness or monitoring of such commitments, and the extent to which these efforts were benefiting or are accountable to, Aboriginal and Torres Strait Islander peoples, need to be explored further. Mr Peter Morris, General Manager, Reconciliation Australia, observed that there is an opportunity for the government to consider organisational accountability in respect to UNDRIP:

…we do think there is a place for further reflection on the government’s role on guidance and accountability with respect to UNDRIP. We’ve seen a change in the prioritisation of leading Australian corporates with respect to the Modern Slavery Act.

…

It is worth reflecting on what accountability mechanisms make the most sense in the Australian context to ensure that organisations that may be in 2006 or 2010 were thinking only about reconciliation are now thinking about climate, human rights and modern slavery.[76]

International Assessments of Australia

2.61As an international instrument, there are various mechanisms of accountability in place. This section of the report outlines the international assessments of Australia’s application of UNDRIP. However, there is a need to further consider how both government and industry efforts to implement UNDRIP are accountable to its intended beneficiaries, Aboriginal and Torres Strait Islander peoples.

2.62Australia’s implementation of UNDRIP and its adherence to agreements relating to the rights of Indigenous peoples more broadly have been the subject of numerous assessments by United Nations (UN) mechanisms concerned with monitoring and promoting human rights.

2.63A visual representation of how relevant UN mechanisms relate to each other is included at Appendix C.

UN Human Rights Committee

2.64The UN Human Rights Committee comprising 18 independent experts ‘promotes the enjoyment of civil and political rights’ enshrined in the International Covenant on Civil and Political Rights (ICCPR), and monitors the implementation of and adherence to this covenant by UN member countries.[77] As previously discussed, UNDRIP Articles are primarily drawn from existing UN Covenants, such as the ICCPR.

2.65In 2019, eight Torres Strait Islander adults and six children submitted to the UNHuman Rights Committee that the Australian Government had violated their rights under ICCPR through its inaction on climate change; damaging ‘their livelihood, culture and traditional way of life’.[78]

2.66In September 2022, the UN Human Rights Committee concluded that ‘Australia’s failure to adequately address the impacts of climate change’ breached the rights of Torres Strait Islander peoples ‘to enjoy their culture, and be free from arbitrary interferences with their private life, family and home under…Articles 27 and 17 of the[ICCPR]’.[79]

2.67The UN Human Rights Committee noted that the ‘ability to maintain their culture has already been impaired by the reduced viability of their islands and the surrounding seas, owing to climate change impacts.[80] The UN Human Rights Committee recommended the Government compensate Torres Strait Islander peoples:

…for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands.[81]

2.68As UNDRIP is a non-binding legal instrument, neither the complainants nor the UN Human Rights Committee point to UNDRIP Articles being violated. However, there is a growing moral and political force for UNDRIP. This was highlighted by researchers who made a submission to this Committee, noting that UNDRIP principles, particularly self-determination, participation in decision-making, and maintaining and strengthening cultural and spiritual relationships with traditional lands, territories, waters and resources, are significant in the context of changing climate conditions.[82]

Special Rapporteur on the rights of Indigenous peoples

2.69The United Nations Human Rights Council (UNHRC) is an intergovernmental group within the UN, consisting of 47 UN member countries, and is responsible for promoting and protecting human rights globally.[83] In 2001, the UNHRC appointed a Special Rapporteur on the Rights of Indigenous Peoples (the Special Rapporteur).[84] The Special Rapporteur is mandated to:

• promote best practices for government programs, legislation, agreement making and the implementation of international standards concerning the rights of Indigenous peoples
• make recommendations on measures to prevent and resolve violations of rights of Indigenous peoples
• report on human rights conditions of Indigenous peoples globally, and
• address specific instances of alleged violations of Indigenous peoples’ rights.[85]
  70. Between March and April 2017, Ms Victoria Tauli-Corpuz, the then-Special Rapporteur, visited Australia and reported back to the UNHRC. The UNHRC summarised Ms Tauli-Corpuz’s report as follows:

[T]he Special Rapporteur observes that the polices of the [Australian] Government do not duly respect the rights to self-determination and effective participation; contribute to the failure to deliver on the targets in the areas of health, education and employment; and fuel the escalating and critical incarceration and child removal rates of Aboriginal and Torres Strait Islanders. A comprehensive revision of those policies needs to be a national priority, and the consequences and prevalence of intergenerational trauma and racism must be acknowledged and addressed.[86]

2.71Ms Tauli-Corpuz concluded that, while the Government had adopted polices addressing socioeconomic disadvantage, those policies did not respect the rights to self-determination or full and effective participation. Ms Tauli-Corpuz further noted that the compounding effect of these policies:

…contributed to the failure to deliver on the targets in the areas of health, education and employment in the ‘Closing the Gap’ strategy and fuels the escalating and critical incarceration and child removal rates.[87]

2.72Ms Tauli-Corpuz recommended:

• [c]omprehensive revision of the policies needs to be a national priority and the consequences and prevalence of intergenerational trauma and racism must be acknowledged and addressed. Aboriginal and Torres Strait Islanders require better recognition and active participation in Australian society.[88]
• [i]ncluding [UNDRIP] in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 [(Cth), and]
• [elaborating] a comprehensive bill of human rights within the federal Constitution and a human rights act that include[s] due recognition of the provisions in [UNDRIP].[89]
  73. The Australian Government’s response at the time was not entirely clear, however in public reporting on the Attorney-General’s website, it has acknowledged that it has received these recommendations and that it is:

Confident that the government’s reform agenda for Indigenous Affairs is makingstrong progress against many of the concerns that were raised in MTauli‑Corpuz’s report. ‘Significant reform takes time and through the Council of Australian Governments, all governments have reaffirmed that improving the lives of Indigenous Australians is a strategic priority for the nation, and have agreed to consider a refreshed framework, targets and implementation principles for the Closing the Gap agenda.[90]

Universal Periodic Review

2.74Established in 2006, the Universal Periodic Review (UPR) is a peer-review process of the human rights records of UN member countries under the UNHRC. Reviews are based on three criteria:

1information provided by the UN member country under review, in the form of a ‘national report’ prepared by the Government

2information contained in reports from independent human rights experts and groups (UN Special Procedures, human right treaty bodies and other UN groups), and

3information provided by other stakeholders, including other human rights bodies and non-governmental organisations.[91]

2.75There have been three UPRs of Australia’s human rights record, and these have included consideration about the implementation of UNDRIP.

2.76The first was in January 2010, where recommendations related to the implementation of UNDRIP and the rights of Indigenous peoples were made, including, but not limited to:

• that the Government conduct an audit of its federal legislation for compliance with UNDRIP, specifically mentioning the Racial Discrimination Act 1975 (Cth) (recommended by Norway)
• progress efforts to attain constitutional recognition (recommended by France, Colombia, Guatemala) and more broadly that the Government undertake reforms to enshrine the principles of UNDRIP in the Constitution, and
• general recommendations about enhancing consultation with Aboriginal and Torres Strait Islander peoples, particularly on efforts to close the gap in opportunities and life outcomes (recommended by Bolivia, France, Singapore, Thailand, Belgium).[92]
  77. At the time, the Government accepted these recommendations in full or in part pointing to theongoing work of the Expert Panel for Constitutional Recognition of Indigenous Australians, and reiterating a commitment to work with the (now-defunct) National Congress of Australia’s First Peoples on relevant reform initiatives.[93]
  78. The second UPR reported in November 2015, and three countries made recommendations specifically related to the implementation of UNDRIP. This included Senegal recommending adherence to UNDRIP, Hungary and Estonia both recommending the development of a national strategy in partnership with Aboriginal and Torres Strait Islander peoples to give effect to UNDRIP, and Estonia going further to recommend the facilitation of constitutional recognition.[94]
  79. The Government noted these recommendations on the basis of existing law, policy and action, specifically, it did not agree to make any change to current policy approaches.[95]
  80. On the other broader recommendations related to the themes and principles in UNDRIP, such as strengthening the rights of Indigenous Australians, the AHRC reported that:

…nine recommendations were made by states relating specifically to the Declaration. Of these only four—all of which were very high-level and recommended that Australia ‘continue’ action already underway—were accepted.[96]

2.81The third UPR, in January 2021, saw five countries make recommendations about the implementation of UNDRIP, including that the Government:

• [d]evelop, in consultation with Aboriginal and Torres Strait Islander peak organisations, a national action plan in order to implement [UNDRIP] (Bangladesh)
• [t]ake steps in consultation with Aboriginal and Torres Strait Islander peoples and the representative bodies to implement [UNDRIP] in law, policy and practice (Canada)
• [i]mplement the principles of [UNDRIP] through program[mes] which make the rights of Indigenous peoples effective, in close consultation with them (Costa Rica)
• [d]evelop a national action plan to implement the principles in [UNDRIP] (Namibia), [and]
• [i]ncorporate [UNDRIP] into domestic law, establish an independent body to oversee its implementation in consultation with Aboriginal and Torres Strait Islander peoples, and include the Declaration in the Human Rights (Parliamentary Scrutiny) Act [2011 (Cth)] (Netherlands).[97]
  82. The Government accepted the recommendations from Canada and Costa Rica about consulting with Indigenous peoples on policies and programs. However, it ‘noted but declined further consideration’ of the other recommendations (i.e. did not agree), such as the development of a National Action Plan.[98]

United Nations Expert Mechanism on the Rights of Indigenous Peoples

2.83The Expert Mechanism on the Rights of Indigenous Peoples (the Expert Mechanism) was established in 2007, as a subsidiary body of the UNHRC.[99] The Expert Mechanism’s mandate was extended in 2016 to provide expertise and advice related to UNDRIP, to promote the Declaration and assist UN member countries to implement UNDRIP, upon request.[100]

2.84A request for assistance from the Expert Mechanism can be made by government or non-government actors and generally takes the form of what is known as a ‘country visit’ whereby a delegation of the Expert Mechanism members visits the country. In2022, the Government formally accepted a country visit by the Expert Mechanism under its country engagement mandate, as requested by the Noongar Family Safety and Wellbeing Council in WA.[101] The Expert Mechanism visited Western Australia 1–‍10 October 2023, and is expected to report on its visit in the normal way, although a reporting date is unknown.

United Nations Permanent Forum on Indigenous Issues

2.85The Economic and Social Council (ECOSOC) is a forum devoted to discussing global economic and social issues, developing policy recommendations and encouraging international cooperation on development.[102] In July 2000, the ECOSOC established the Permanent Forum on Indigenous Issues (UNPFII) as an advisory body mandated to discuss Indigenous issues related to economic and social development, culture, the environment, education and human rights.[103] UNDRIP Article 42 states that UNPFII ‘shall promote respect for the full application of the provision of [the] Declaration and follow up the effectiveness of [the] Declaration’.[104]

2.86UNPFII is the only ‘international setting where Indigenous peoples are represented permanently on a par with governments’[105] and is ‘both the principal organ that facilitates Indigenous peoples’ voices to be heard on a global level and the organ that monitors the implementation of UNDRIP’.[106] The significance of Indigenous peoples having a seat at the international table to provide advice on matters affecting them should not be overlooked.

2.87The UNPFII expressed its support for the Uluru Statement from the Heart at its 21stsession in 2022 specifically:

The Permanent Forum supports the call from indigenous peoples of Australia at the meeting held in Uluru in 2017 for a process on the three core components of the Uluru Statement from the Heart—Voice, Treaty and Truth—and constitutional recognition of indigenous rights consistent with the United Nations Declaration on the Rights of Indigenous Peoples.[107]

Committee Comment

2.88The Committee observed that in Australia, there is no singular or centralised way to implement UNDRIP across or within the Commonwealth, States and Territories. Theresult of this is the application, by all governments, of ad-hoc approaches to accommodate or respond to specific Articles in UNDRIP within certain policy or program contexts, while leaving gaps in others.

2.89The Committee acknowledges the work that some State and Territory Governments have undertaken to implement UNDRIP through their own human rights frameworks, or implementation of the Uluru Statement from the Heart.

2.90The Committee notes that it is ultimately the Australian Government’s responsibility to honour our international commitments, including to the UNDRIP. While implementation of UNDRIP in Australia requires engagement and action from all jurisdictions, due to the nature of the federation, Commonwealth leadership is critical to is success. The Committee therefore considers it to be important to consider how best to coordinate efforts across all Australian jurisdictions to enable the successful implementation of UNDRIP.

2.91The Committee considers the States and Territory efforts to be valuable examples that could inform implementation of UNDRIP at the federal level and urges the Australian Government to monitor and, where appropriate, support these processes.

2.92The Committee notes that there is some promising activity from industry groups and corporations which are seeking to explore ways to adopt or incorporate UNDRIP Articles relevant to their day-to-day operations.

2.93The Committee notes the recommendations made by various United Nations bodies over more than a decade related to the implementation of UNDRIP and realisation of rights for Indigenous peoples. The Committee considers that these reports and recommendations remain relevant for considering implementation of UNDRIP.

Footnotes

[1]Ms Anne Sheehan, Committee Hansard, Canberra, 8 June 2023, p. 1.

[2]Dr Hannah McGlade, Committee Hansard, Canberra, 31 March 2023, p. 31.

[3]Please see Appendix B for a list of witnesses that appeared before the Committee at public hearings.

[4]National Indigenous Australians Agency (NIAA), Joint Committee Submission 9, p. 3–4; Ms Anne Sheehan, Committee Hansard, Canberra, 8 June 2023, p. 2

[5]NIAA, Joint Committee Submission 9, p. 4.

[6]Department of Foreign Affairs and Trade (DFAT), Joint CommitteeSubmission 7, pages 4–5.

[7]DFAT, Joint CommitteeSupplementary Submission 7.1, p. 4.

[8]Ms Anne Sheehan, Committee Hansard, Canberra, 8 June 2023, p. 2.

[9]Dr Hannah McGlade, Committee Hansard, Canberra, 31 March 2023, p. 35.

[10]Hon Murray Rankin KC MLA, Committee Hansard, Canberra, 31 March 2023, p. 4.

[11]Australian Capital Territory Human Rights Commission (ACT HRC), Senate Committee Submission 5, p. [2].

[12]Section 27(2), Human Rights Act 2004 (ACT), Act 2004-5, Republication no. 14, p. 13, https://www.legislation.act.gov.au/a/2004-5, viewed 20 April 2023.

[13]Human Rights Act 2004 (ACT), Act 2004-5 Republication no. 14, note, p. 13, https://www.legislation.act.gov.au/a/2004-5, viewed 20 April 2023; ACT HRC, Senate Committee Submission5, p. [3].

[14]Human Rights Act 2019 (Qld), Act no. 5 of 2019, Preamble, p. 9, https://www.legislation.qld.gov.au/view/html/asmade/act-2019-005, viewed 19 April 2023.

[15]Charter of Human Rights and Responsibilities Act 2006 (Vic), Act no. 43/206, Preamble, p.1, https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/015, viewed 19 April 2023.

[16]Charter of Human Rights and Responsibilities Act 2006 (Vic), Act no. 43/206, section19 (2), p.15, https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/015, viewed 19 April 2023.

[17]Dr Helen Watchirs OAM, Committee Hansard, Canberra, 31 March 2023, p. 10.

[18]Dr Helen Watchirs OAM, Committee Hansard, Canberra, 31 March 2023, p. 10.

[19]C Wood, 2020, ‘Protecting Indigenous rights at home: A comparative analysis of the way forward for domestic implementation of the United Nations Declaration on the Rights of Indigenous Peoples’, Australian International Law Journal, vol. 27, pages 77–101.

[20]Part 1 (2), Constitution Act 1902 (NSW); Preamble, Constitution of Queensland 2001 (Qld); Part 1(2)–(3), Constitution Act 1934 (SA); Section 1A, Constitution Act 1975 (Vic); Preamble, Constitution Act 1889 (WA).

[21]Preamble, Constitution Act 1989 (WA).

[22]Constitution Act 1934 (SA) p. 3.

[23]Constitution Act 1934 (SA) p. 4.

[24]Constitution Act 1934 (SA) p. 4.

[25]Constitution Act 1934 (SA) p. 4.

[26]Northern Territory Treaty Commission 2022, Final Report, p. 6; Northern Land Council, Central Land Council, Anindilyakwa Land Council, Tiwi Land Council, NT Government 2018, The Barunga Agreement: A memorandum of understanding to provide for the development of a framework for negotiating a treaty with the First Nations of the Northern Territory of Australia, p. 6, https://dcm.nt.gov.au/__data/assets/pdf_file/0003/514272/barunga-muo-treaty.pdf, viewed 8 May 2023.

[27]Castan Centre for Human Rights Law, Senate Committee Submission 33, p. 15.

[28]The Barunga Agreement: A memorandum of understanding to provide for the development of a framework for negotiating a treaty with the First Nations of the Northern Territory of Australia, p. 6, https://dcm.nt.gov.au/__data/assets/pdf_file/0003/514272/barunga-muo-treaty.pdf, viewed 8 May 2023.

[29]NT Government, Joint Committee Submission 48, p. 8.

[30]NT Government, Joint Committee Submission 48, p. 8.

[31]NT Legislative Assembly, Minutes of Proceedings, 16 February 2023, p. 435.

[32]Queensland Government, Joint Committee Submission 28, p. 3; Dr Harry Hobbs, Senate Committee Submission 22, p.3.

[33]Queensland Government 2019, Statement of Commitment, p. 1, https://www.dsdsatsip.qld.gov.au/resources/dsdsatsip/work/atsip/reform-tracks-treaty/path-treaty/treaty-statement-commitment-july-2019.pdf, viewed 20 April 2023.

[34]Community Support and Services Committee (CSSC) 2023, ‘Report No. 30, 57th Parliament – Path to Treaty Bill 2023’, Queensland Parliament, https://www.parliament.qld.gov.au/Work-of-Committees/Committees/Committee-Details?cid=165&id=4236, viewed 23 May 2023.

[35]Queensland Parliament 2023, Hansard, 10 May, pages 1335–1341, https://documents.parliament.qld.gov.au/events/han/2023/2023_05_10_WEEKLY.pdf, viewed 16 June 2023.

[36]SA Attorney-General’s Department 2023, ‘First Nations Voice Bill’, https://www.agd.sa.gov.au/aboriginal-affairs-and-reconciliation/first-nations-voice-to-the-south-australian-parliament/first-nations-voice-model, viewed 8 May 2023; SA Attorney-General’s Department 2023, ‘First Nations Voice to the South Australian Parliament’, https://www.agd.sa.gov.au/aboriginal-affairs-and-reconciliation/first-nations-voice-to-the-south-australian-parliament, viewed 8 May 2023.

[37]South Australia's First Nations Voice to Parliament | Attorney-General's Department (agd.sa.gov.au), viewed 28 September 2023.

[38]South Australia's First Nations Voice to Parliament, https://savoiceelection.sa.gov.au/index.php, viewed 28 September 2023.

[39]Dr Harry Hobbs, Senate Committee Submission 22, p. 3; Indigenous Peoples’ Organization – Oxfam Australia, Senate Committee Submission 92, p. 8; Jaensch, R 2022, ‘Media release: Advisory group to guide process for Truth-telling and Treaty’, Tasmanian Government, https://www.premier.tas.gov.au/site_resources_2015/additional_releases/advisory-group-to-guide-process-for-truth-telling-and-treaty, viewed 20 April 2023.

[40]Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), Act no. 28 of 2018, preamble, p. 1, https://content.legislation.vic.gov.au/sites/default/files/50f587e2-f753-3e01-b2ca-2f86930eef93_18-28aa001%20authorised.pdf, viewed 19April2023.

[41]Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), Act no. 28 of 2018, preamble, p. 2, https://content.legislation.vic.gov.au/sites/default/files/50f587e2-f753-3e01-b2ca-2f86930eef93_18-28aa001%20authorised.pdf, viewed 19April2023.

[42]Dr Harry Hobbs, Senate Committee Submission 22, p.4; Victorian Government and the First Peoples Assembly of Victoria 2022, ‘Joint Statement On Victoria’s Truth And Justice Process’, 9 March, https://www.premier.vic.gov.au/joint-statement-victorias-truth-and-justice-process, viewed 11 May 2023; Yoorrook Justice Commission 2023, ‘About Yoorrook’, https://yoorrookjusticecommission.org.au/overview/, viewed 11 May 2023; Yoorrook Justice Commission 2023, ‘Frequently asked questions’, https://yoorrookjusticecommission.org.au/faqs/, viewed 11 May 2023; Yoorrook Justice Commission 2023, ‘Hearings’, https://yoorrookjusticecommission.org.au/public-hearing/, viewed 11 May 2023.

[43]Yoorrook Justice Commission 2023, ‘Key Documents’, https://yoorrookjusticecommission.org.au/key-documents/?document_type=reports, viewed 31 October 2023.

[44]Victorian Government 2022, Advancing the Victorian Treaty Process: Annual Report 2021–22, pages 4–5.

[45]First Peoples' Assembly of Victoria and The State of Victoria 2022, Self-Determination Fund Agreement, p. 7.

[46]Dr Harry Hobbs, Senate Committee Submission 22, pages4–5; Yoorrook Justice Commission 2022, Yoorrook With Purpose: Interim Report, p. 9, https://yoorrookjusticecommission.org.au/wp-content/uploads/2022/06/Yoorrook-Justice-Commission-Interim-Report.pdf, viewed 11 May 2023; Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), preamble.

[47]ACT Government, Joint Committee Submission 47, p. 5.

[48]ACT Government, Joint Committee Submission 47, p. 5.

[49]ACT Government, Joint Committee Submission 47, p. 10.

[50]Legislative Assembly for the ACT, Minutes of Proceedings, 8 February 2023, p. 1012.

[51]National Indigenous Australians Agency (NIAA), Joint Committee Supplementary Submission 9.1, p. 1.

[52]Ms Jody Broun, Chief Executive Officer, NIAA, Committee Hansard, Canberra, 26 October 2022, p. 7

[53]ACT Government, Joint Committee Submission 47, pages. 2–3.

[54]Australian Human Rights Commission (AHRC), Senate Committee Submission 53, p. 19.

[55]AHRC, Senate Committee Submission 53, p. 27.

[56]Dr Adam Heaton, Senate Committee Submission 12, p. 1.

[57]Dr Adam Heaton, Senate Committee Submission 12, p. 2.

[58]Dr Adam Heaton, Senate Committee Submission 12, p. 2.

[59]Dr Adam Heaton, Senate Committee Submission 12, p. 1.

[60]SA Government, Joint Committee Submission 49, pages. 3–4.

[61]Lowitja Institute, Senate Committee Submission 71, p. 5.

[62]Change the Record, Senate Committee Submission 16, p. 7.

[63]NT Government, Joint Committee Submission 48, p. 3.

[64]WA Government, Joint Committee Submission 50, p. [2].

[65]Professor Melissa Castan, Director, Monash University, Committee Hansard, Canberra, 10 March 2023, p.24

[66]Ms Jacqueline Adams, Committee Hansard, Canberra, 10 March 2023, p. 16.

[67]Ms Jacqueline Adams, Committee Hansard, Canberra, 10 March 2023, p. 20.

[68]Terri Janke and Company, Joint CommitteeSubmission 10, p. 3.

[69]Supply Nation, Joint CommitteeSubmission 16, p. 4.

[70]IBA, Joint CommitteeSubmission 27, p. 2.

[71]Woodside Energy, Joint CommitteeSubmission 23, pages 1–2

[72]University of Tasmania, Joint Committee Submission 46, pages. [1]–[5].

[73]University of Tasmania, Joint Committee Submission 46, pages. [3]–[4].

[74]Australian Council of Trade Unions, Joint Committee Submission 45, pages. 2–3.

[75]International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (No. 169), 7 June 1989, Part 3—Recruitment and Conditions of Employment.

[76]Mr Peter Morris, General Manager, Reconciliation Australia, Committee Hansard, Canberra, 19 May 2023, p. 6.

[77]United Nations (UN) 2023, ‘Human Rights Committee’, https://www.ohchr.org/en/treaty-bodies/ccpr, viewed 12 June 2023; UN 2023, ‘Introduction to the Committee: Human Rights Committee’, https://www.ohchr.org/en/treaty-bodies/ccpr/introduction-committee, viewed 12 June 2023.

[78]Human Rights Law Centre 2022, ‘UN Human Rights Committee finds Australia violated Torres Strait Islanders’ human rights over climate inaction’, https://www.hrlc.org.au/human-rights-case-summaries/un-human-rights-committee-finds-australia-violated-torres-strait-islanders-human-rights-over-climate-inaction, viewed 16 June 2023.

[79]Human Rights Law Centre 2022, ‘UN Human Rights Committee finds Australia violated Torres Strait Islanders’ human rights over climate inaction’, https://www.hrlc.org.au/human-rights-case-summaries/un-human-rights-committee-finds-australia-violated-torres-strait-islanders-human-rights-over-climate-inaction, viewed 23 May 2023; United Nations Human Rights Committee (UNHRC) 2022, ‘Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019’, UN Doc CCPR/C/135/D/3624/2019, p.16, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f135%2fD%2f3624%2f2019&Lang=en, viewed 23 May 2023.

[80]UNHRC 2022, ‘Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019’, UN Doc CCPR/C/135/D/3624/2019, p. 16, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f135%2fD%2f3624%2f2019&Lang=en, viewed 23 May 2023.

[81]United Nations, ‘Australia violated Torres Strait Islanders’ rights to enjoy culture and family life, UN Committee finds’, Press release, 23 September 2022, https://www.ohchr.org/en/press-releases/2022/09/australia-violated-torres-strait-islanders-rights-enjoy-culture-and-family, viewed12June2023.

[82]Lillian Ireland, Dr Nina Lansbury, Adjunct Professor Sandra Creamer AM and Dr Vinnitta Mosby, Joint Committee Submission39, p. 2.

[83]United Nations Human Rights Council (UN HRC) 2023, ‘Human Rights Council’, https://www.ohchr.org/en/hrbodies/hrc/home, viewed 12 June 2023.

[84]UN HRC, Human Rights and Indigenous Peoples: Mandate of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/RES/42/20, 8 October 2019.

[85]United Nations [UN] 2023, ‘Special Rapporteur on the rights of Indigenous Peoples’, https://www.ohchr.org/en/special-procedures/sr-indigenous-peoples, viewed 2 May 2023; UN Human Rights Council, Human Rights and Indigenous Peoples: Mandate of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/RES/42/20, 8 October 2019.

[86]UN HRC, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, para 1, UN Doc A/HRC/36/46/Add.2, 8 August 2017, pages. 1–3.

[87]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, p. 18.

[88]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, p. 18.

[89]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, pages 18–19.

[90]Attorney-General’s Department, ‘Recommendation 77 Attorney-General's Department’, https://www.ag.gov.au/recommendations/recommendation-77, viewed 9 October 2023.

[91]UN HRC 2023, ‘Universal Periodic Review’, https://www.ohchr.org/en/hr-bodies/upr/upr-main, viewed 12 June 2023; HRC 2023, ‘Basic facts about the UPR’, https://www.ohchr.org/en/hr-bodies/upr/basic-facts, viewed 12 June 2023.

[92]These included Norway, Bolivia, Ghana, Hungary, Denmark, and Guatemala. See, 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, pages 14, 20.

[93]UN HRC, Report of the Working Group on the Universal Periodic Review: Australia: Addendum, UN Doc A/HRC/17/10/Add.1, 31 May 2011, p. 3, pages. 7–8.

[94]These included Senegal, Estonia, Hungary. See, United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/31/14, 13 January 2016, pages16–17.

[95]UN HRC, Report of the Working Group on the Universal Periodic Review: Australia: Addendum, UN Doc A/HRC/31/14/Add.1, 29 February 2016, p. 4.

[96]Australian Human Rights Commission, Senate Committee Submission 53, p. 17.

[97]Bangladesh, Canada, Costa Rica, Namibia, and Netherlands. See, UN HRC, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/47/8, 24 March 2021, p. 23.

[98]UN HRC, Report of the Working Group on the Universal Periodic Review: Australia, Addendum, UN Doc A/HRC/47/8Add.1, 2 June 2021, p. 3.

[99]UN HRC, Expert Mechanism on the rights of indigenous peoples, resolution 6/36, UN Doc A/HRC/RES/6/36, 14 December 2007.

[100]UN HRC, Expert Mechanism on the rights of indigenous peoples, resolution 33/25, Articles 1 and 2, UN Doc A/HRC/RES/33/25, 5 October 2016.

[101]United Nations Economic and Social Council, Report on the Twenty-First Session, UN Doc E/2022/43-E/C.19/2022/1125, April–6 May 2022, p. 11; Torre, G 2022, ‘Top UN Indigenous rights body makes first flight to Australia for human rights probe’, National Indigenous Times, 18 May 2022, https://nit.com.au/18-05-2022/3091/top-un-indigenous-rights-body-makes-first-flight-to-australia-for-human-rights-probe, viewed15May 2023.

[102]UN n.d., ‘Economic and Social Council’, https://www.un.org/en/model-united-nations/economic-and-social-council#:~:text=The%20Economic%20and%20Social%20Council,the%20UN%20family%20of%20organizations, viewed 12 June 2023.

[103]United Nations Economic and Social Council (ECOSOC), Establishment of a Permanent Forum on Indigenous Issues, resolution 2000/22, UN Doc E/2000/22, 28 July 2000, p. 2, Article 2.

[104]United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, 13 September 2007, Article 42.

[105]S Rombouts 2017, 'The Evolution of Indigenous Peoples' Consultation Rights Under the ILO and UN Regimes: A Comparative Assessment of Participation, Consultation, and Consent Norms Incorporated in ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples and Their Application by the Inter-American Court of Human Rights in the Saramaka and Sarayaku Judgments', Stanford Journal of International Law, vol. 53, no. 2, p. 203, https://ssrn.com/abstract=3010261, viewed 12 June 2023.

[106]S Rombouts 2017, 'The Evolution of Indigenous Peoples' Consultation Rights Under the ILO and UN Regimes: A Comparative Assessment of Participation, Consultation, and Consent Norms Incorporated in ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples and Their Application by the Inter-American Court of Human Rights in the Saramaka and Sarayaku Judgments', Stanford Journal of International Law, vol. 53, no. 2, p. 203, https://ssrn.com/abstract=3010261, viewed 12 June 2023.

[107]Permanent Forum on Indigenous Issues, Report on the Twenty-First Session, UN Doc E/2022/43-E/C.19/2022/11, 25 April–6 May 2022, p. 11.