Australia has identified five priorities to support its candidacy for a seat on the United Nations’ Human Rights Council. They are ‘gender equality, good governance, freedom of expression, the rights of indigenous peoples and strong national human rights institutions, and capacity building’. These are important aspirations. However, they cannot easily be pursued as Australia continues to defy international norms in the treatment of refugees and asylum seekers. Its case must also be assessed against its domestic policy practices in relation to the rights of indigenous peoples.
2017 marks the 50th anniversary of amendments to the Australian Constitution allowing indigenous Australians to be counted among the Commonwealth’s population and allowing the Commonwealth government to enact legislation for their well-being. 2017 is also the 20th anniversary of the report of a Royal Commission into the removal of indigenous children from their families. The idea that Australia should pay attention to the human rights of its indigenous populations is a relatively new one and not universally accepted. Indigenous children were systematically removed from their families until the 1970s. Questions of appropriate compensation remain unsettled. Australia initially opposed the adoption of the Declaration on the Rights of Indigenous Peoples and its governments do not accept the need to acquire consent for mining over indigenous lands, as the Queensland and Commonwealth governments’ contemporary support for the Adani coal mine in central Queensland illustrates. The mine is against indigenous wishes and requires a weakening of native title protections to proceed.
Yet, significantly, measures of recognition have also taken place over the past 20 years. Their adequacy is an essential test of Australia’s authority as an international guardian of human rights.
In 2015, the Prime Minister and Leader of the Opposition established a process for indigenous people to reach agreement on how the Constitution ought to recognise their prior occupancy of what has become the Australian state. However, on 26 May 2017, indigenous Australia rejected mere recognition. Instead, it proposes that the Constitution, which can be amended only by public referendum, establish a guaranteed indigenous ‘voice to parliament’ – a body that is an entrenched part of the national democratic fabric – removable not by the political whim of the government of the day but only by further public referendum.
The proposal will be controversial. Indigenous peoples’ democratic inclusion is sharply contested; there is no national agreement on what it means to be an indigenous citizen of the Commonwealth.
There will be considered objections to the proposal; reasoned alternatives to what indigenous Australia proposes as a constitutionally protected ‘First Nations’ Voice’. At the same time, the assertion of a distinctive indigenous citizenship brings the politics of race to the fore; it provides a platform for the politics of exclusion, and denial of the Declaration on the Rights of Indigenous Peoples’ guarantee that:
‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’
Indigenous Australia has rejected the bipartisan parliamentary support for minimalist recognition and raised the question of a more substantive and far-reaching self-determination. In short, indigenous Australia has made a claim for human rights.
The Government will need to play a careful mediating role in the debate that is to follow. Its credibility and authenticity as a defender of human rights will be tested. Its success may become a determinant of its authority as a candidate for the Human Rights Council.
History makes the test a difficult one for Australia. The preliminary findings of a visit to Australia, in 2017, by the United Nations’ Special Rapporteur on the Rights of Indigenous Peoples, who is appointed by the Human Rights Council, show why. While the Special Rapporteur noted many important examples of Australia recognising the right to self-determination, she found more examples of the opposite. She found that withdrawing financial support to the nationally representative Congress of Australia’s First Peoples put Australia in breach of its pledge as a Council candidate: ‘the failure to respect the right to self-determination and the right to full and effective participation… is alarming… ‘Aboriginal and Torres Strait Islanders told me about feelings of powerlessness, loss of culture and lack of control over their lives’.
Australia’s credibility is uncertain. However, indigenous Australia has given its government a timely opportunity to remove that uncertainty.