When laws are designed fairly, in line with international human rights standards and applied consistently, they can be an important tool for upholding justice and equality. But without safeguards, laws can oppress, discriminate, and disenfranchise to devastating effect – whether drafted intentionally to do that or not.
The power of law to entrench or exacerbate disadvantage is the very reason why a Voice to Parliament for Australia’s First Nations people matters. In the upcoming referendum, Australians are effectively being asked if First Nations people should be given a constitutional right to make representations to the Parliament and the executive branch of government on matters – laws – relating to Aboriginal and Torres Strait Islander peoples.
Both experience and the international human rights framework show us this is the right thing to do.
Why experience? Because the Australian government does not always comply with its obligations under international human rights law. Australia has a checkered human rights past – be it the human rights of First Nations people, asylum seekers, LGBTQIA+ people, people living with disabilities or older people. First Nations people have suffered acutely under the harmful impacts of Australia’s laws.
For instance, it was the so-called Aborigines Protection Act, passed in 1909 in NSW, that allowed the government, churches and welfare bodies to remove Aboriginal children from their parents – a deeply inhumane practice that continued across the country until the 1970s. And the Constitution failed to acknowledge Aboriginal people as part of the Australian population until it was finally amended in 1967.
Laws have affected virtually every aspect of First Nations people’s lives – often for the worse. To this day, under Australia’s criminal justice system First Nations people are disproportionately arrested and incarcerated. For a long time, First Nations people in Australia have been asking the government to listen to their experiences of discrimination and marginalization and to make meaningful change.
The Uluru Statement from the Heart articulates this, “Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers.”
So, wouldn’t it be better if there were safeguards against making discriminatory and harmful laws to begin with? That’s what the Voice is designed to do.
And this is where the international human rights framework – in particular, the international human rights principles articulated in the United Nations Declaration on the Rights of Indigenous Peoples – provides guidance. The declaration, endorsed by Australia in 2009, is the world’s most comprehensive international instrument on Indigenous peoples’ rights.
Articles 18 and 19 recognize that Indigenous people have the right to participate in decision-making in matters that would affect their rights, and that governments should consult with Indigenous people before making laws that affect them.
In 2017, the then-UN special rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, visited Australia and was very critical of the government’s implementation of the declaration.
She reported the significant socio-economic disadvantages that Aboriginal and Torres Strait Islander people face and their connection to structural disempowerment. She said that, “the failure to respect the right to self-determination and the right to full and effective participation… is alarming. The compounded effect… has contributed to the failure to deliver on the targets in the areas of health, education and employment.” This, she said, has contributed to the escalating rates of children being removed from their parents and the high incarceration rates of Indigenous people.
Human rights are indivisible and interdependent. This means that one set of rights cannot be fully enjoyed without the others. In practical terms, the right to be free from discrimination, the right to a fair trial, the right to health and education and so forth, cannot be enjoyed without also ensuring that human rights principles of effective participation and self-determination of Indigenous people set out in the Declaration on the Rights of Indigenous Peoples are respected too.
At this juncture, as a country, Australia can continue to provide a patchy array of examples where the government fails to fully promote human rights. Or, it can demonstrate, by popular vote, that Australians genuinely want to improve the human rights of First Nations people.
People have the right to form their own views. Human Rights Watch supports the Australian people’s opportunity through the Voice to constitutionally enshrine these core international principles on Indigenous peoples’ rights.