Reconciliation and Social Justice Library

AGREEING ON A DOCUMENT: - CREATING BILLS OF RIGHTS

As the nation prepares for the first centenary of Federation, there is speculation about the nature of an Australian Republic and the desirability of introducing federal, State or Territory Bills of Rights. Any discussion about the desirability of a document of reconciliation has to occur in the context of these developments. Some parallels can also be drawn with developments in Canada and New Zealand.

Since the establishment of the Council for Aboriginal Reconciliation, there have been significant developments in the field of indigenous rights in Australia and in the international community. The International Year for the World's Indigenous People was a watershed in the consideration of these issues. The United Nations Working Group on Indigenous Populations has produced its final draft Declaration on the Rights of Indigenous Peoples. That draft views the right of self-determination as essential for indigenous peoples. However, State parties have been insistent that the right of self-determination be sufficiently confined such that it would never permit an indigenous group to secede, thereby fracturing the unity of the nation state.

There is now general community acceptance that Aboriginal and Torres Strait Islander peoples ought to enjoy legal protection from assimilation and discrimination. Like all Australians, indigenous Australians can invoke the Racial Discrimination Act 1975 (Cwlth) to correct racially discriminatory practices by all governments and State Parliaments, and a Social Justice Commissioner has been appointed to report annually on the human rights situation of indigenous Australians.

The recent native title debate highlighted that indigenous Australians and their supporters see the Racial Discrimination Act 1975 (Cwlth), embodying as it does the principles of the International Convention on the Elimination of All Forms of Racial Discrimination, as a law which should prevail over all other Commonwealth laws except in extraordinary circumstances. By way of compromise, the Government agreed to an amendment to the Native Title Act 1993 (Cwlth) proposed by the Green Senators from Western Australia that 'Nothing in this Act affects the operation of the Racial Discrimination Act 1975'. Sub-section 7(2), though, it should be noted, provides that 'Sub-section 1 does not affect the validation of past acts by or in accordance with this Act', which would prevent the operation of the Racial Discrimination Act 1975 (Cwlth) rendering unlawful or invalid past acts which were discriminatory.

In Australia, we have passed the Australia Act 1986 (Cwlth) 'to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation'. But we have not entrenched citizens' rights generally, let alone the distinctive rights of indigenous peoples.

Our governments and parliaments generally have been very wary about expanding the scope for court involvement on issues of Aboriginal and Torres Strait Islander peoples' rights. However, a significant High Court jurisprudence on land rights has been the result of the large number of cases which have been taken on appeal by the Northern Territory Government, from the Aboriginal Land Commissioner in the Northern Territory and the Federal Court, to the High Court. Also the Racial Discrimination Act 1975 (Cwlth) has provided the court with fertile ground for a jurisprudence of discrimination in cases such as Koowarta v. Bjelke Petersen, Gerhardy v. Brown and Mabo v. Queensland (No. 1).

In the body of the Federal Constitution, there could be a part or section recognising and affirming the rights of Aboriginal and Torres Strait Islander peoples. The major unresolved issue in the national conversation about the place of indigenous Australians will be the scope of their distinctive right of self-determination, which is more fully discussed in Controlling Destinies, Key Issue Paper No. 8 in this series.

Experience in Canada and New Zealand shows that legislative recognition of the collective rights of indigenous peoples, permitting court litigation and tribunal hearings, and negotiations with indigenous citizens need not be open-ended, and they are not necessarily contrary to the national interest. Queensland's Electoral and Administrative Review Commission (EARC) in its Bill of Rights report has recommended an expansive statement of indigenous rights, which though affirmed, would not be enforceable. Under the heading 'Community and Cultural Rights', the EARC Bill provides:

Aboriginal People and Torres Strait Islanders have the following collective and individual rights --

(a) the right to revive, maintain and develop their ethnic and cultural characteristics and identities, including --

(i) their religion and spiritual development;

(ii) their language and educational institutions;

(iii) their relationship with indigenous lands and natural resources;

(b) the right to manage their own affairs to the greatest possible extent while enjoying all the rights that other Australian citizens have in the political, economic, social and cultural life of Queensland;

(c) the right to obtain reasonable financial and technical assistance from government to pursue their political, economic, social and cultural development in a spirit of co-existence with other Australian citizens and in conditions of freedom and dignity.

Though these provisions may be politically unacceptable to present governments because they are too open ended on issues of land rights and self-determination, the specific recognition of rights for indigenous Australians is essential in a contemporary Australian Bill of Rights, provided such recognition in this form is sought by Aboriginal and Torres Strait Islander peoples' organisations. If there were to be no recognition as requested, we would be denying a Bill of Rights operation in one of the fields central to its rationale. We need legal rights and processes which indigenous Australians can invoke, confident that they will be accorded justice according to law which is respectful of their cultural heritage.