By Katie Cooper, a student of Law and Environmental Policy & Management and a volunteer at Rights Resource Network (SA) with a passion for social justice.
“We are in a moment of global reckoning on multiple fronts, all underscored by the failure of current systems to address entrenched inequalities”, says June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner and proud Bunuba woman.
The human rights of Aboriginal and Torres Strait Islander Peoples has remained a mainstay in contemporary Australian discussion, and yet our collective progress to giving legal and practical effect to these rights has been slow, painful and remains inadequate. This discussion has been sustained in recent times as Australia looks likely to head to a nationwide referendum to vote on amending the constitution to recognise First Nations Peoples and enshrine the Voice to Parliament later this year. However, current public discourse on the upcoming referendum rarely allows space to consider the role that the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) could play alongside such reforms.
UNDRIP in Australia
Australia has had a turbulent relationship with UNDRIP since its inception. UNDRIP was adopted by the General Assembly of the United Nations on 13 September 2007 and was endorsed by Australia in 2009 after shockingly rejecting it two years earlier. While UNDRIP has become a guiding policy tool by various organisations, it has not yet received legal status by assent of Parliament. Many want this to change.
“Without a legal and policy framework based in human rights, breaches of human rights in Australia, particularly of marginalised groups, are likely to remain ‘disturbingly routine’.” - Mr Tass Liveris, President of the Law Council of Australia
Australia has instead employed ‘Closing the Gap’ as its medium to deliver the principles and rights embodied in UNDRIP. ‘Closing the Gap’ is a policy initiative aimed at reducing the disadvantages faced by Indigenous Australians by minimising the disparities in life expectancy, health, education, and employment outcomes between Indigenous and non-Indigenous Australians. However, the outcomes of ‘Closing the Gap’ have been varied. While there have been some positive developments, the latest ‘Closing the Gap’ Report demonstrated that the gap has actually worsened in the areas of adult incarceration rates, suicide, and Indigenous children in out-of-home care.
Case Examples in South Australia
The legacy of colonialism remains pertinent in the South Australian legal system, upholding antiquated and culturally-unsafe practices which further entrench the disparity between Indigenous and non-Indigenous Australians.
One such example is occurring in Kimba, where the Barngarla Traditional Owners state that they were not properly consulted and were excluded from the ballot over the site for the proposed nuclear waste facility. While the Barngarla Determination Aboriginal Corporation currently have commenced proceedings in the federal court, the failure of Australia to codify UNDRIP has left First Nations Peoples with limited recourse. Under UNDRIP, the Bangarla Traditional Owners must be afforded ‘the right to participate in decision-making in matters which would affect their rights’ and ‘the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources’ – two rights which they have not been afforded.
Another example of this is legal barriers which prevent First Nations Peoples from giving evidence about their own traditions and customs in court under hearsay and opinion laws. While this is now under investigation by the South Australian Government, Khatija Thomas of the Aboriginal Legal Rights Movement says “a lot of Aboriginal people have rightly found that quite insulting to their traditional knowledge, [the] ability to be heard and to be recognised as the holders of that knowledge”. Again, this is at odds with Article 27 of UNDRIP which provides the right to legal recourse which is ‘fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems”.
Fortunately, there is now momentum to change this narrative with the recent proposal by the Malinauskas Government to enshrine a First Nations Voice to South Australian Parliament. However, its design does not completely align with UNDRIP and care should be taken to ensure the Voice accommodates the full set of rights and principles of Indigenous Peoples.
South Australia is not the first to propose such a reform, and lessons should be learnt from our friends in Canada and New Zealand.
How can we improve?
There are range of legal and non-legal reforms that are necessary in order to give full legal meaning to the UNDRIP and to capitalise on the potential benefits it offers the broader Australian community, as well as Indigenous Peoples. One possible step forward would be to consider the place of international human rights principles within domestic law in Australia, and to take steps to increase the visibility and legal status of those principles that are broadly accepted within our community. The RRNSA is calling for a Human Rights Framework to be adopted in South Australia for this purpose. It wants to see local communities interact in practical ways with human rights concepts, including concepts of self-determination. A Human Rights Framework could be used by lawmakers and policy-makers to explore how the principles in UNDRIP and its use in other countries could be used to improve the development, design and implementation of South Australian laws and policies – including proposals such as the First Nations Voices to SA Parliament.
The adoption of a South Australian Human Rights Framework could ensure the promotion of human rights for all individuals, thereby providing a different mechanism to ‘close the gap’ of disparity.
A South Australian Human Rights Framework could be designed to codify key elements contained in UNDRIP in South Australian law, affirming the rights owed to First Nations Peoples. This could be transformative, shifting the current policy-based lens in which human rights obligations are framed towards a rights-based lens. It also provides First Nations People with effective legal pathways to address unfair or inadequate decision-making or treatment in a culturally-safe manner. This could look like a proceeding on Country and in language. Importantly, the inclusion of UNDRIP in a Human Rights Framework would create succinct and consistent reference points for all Australians and would be applicable by all institutions, creating a holistic approach to counter systemic racism.