3. The wider setting: International, legal and social
Contending voices by Henry Reynolds
Legal considerations by Melissa Castan
Social considerations by Ian Anderson
3.1. Contending voices by Henry Reynolds
It is exactly five years now since the delegates to the National Constitutional Convention, coming from ‘all points of the southern sky’, delivered the Uluru Statement from the Heart. We can appreciate now that it is one of Australia’s most important constitutional documents in its call for ‘substantive constitutional change and structural reform … to empower our people and take a rightful place in our own country’. Specifically, Convention delegates called for a First Nations Voice enshrined in the Constitution and for a Makarrata Commission to supervise a process of agreement-making with state and federal governments and truth-telling about our history.
Now that the debate about the forthcoming referendum is underway, the contending voices are already well rehearsed. Central to the opposition case is that the First Nations are demanding a series of special rights and privileges only available to them and not to all the other recognisable groups in multicultural Australia. It amounts to positive discrimination based on race and is consequentially divisive and likely to undermine national unity.
The First Nations case is embodied in the Uluru Statement. It has two central pillars. The first is that the Aboriginal and Torres Strait were ‘the first sovereign Nations of the Australian continent … and possessed it under our own laws and customs. … according to the common law from “time immemorial”, and according to science since more than 60,000 years ago’. This ancient link is the basis of First Nations sovereignty, which ‘has never been ceded or extinguished and co-exists with the sovereignty of the Crown’.
The second pillar relates to the well-known and abiding problems faced by First Nations people, illustrated by an array of dire social indicators. What the Uluru Statement calls the ‘dimensions of our crisis’ clearly illustrate the ‘structural nature of our problem’. It is the ‘torment of our powerlessness’. The desired solution was constitutional reform. With ‘power over our destiny’ First Nations children would flourish and would ‘walk in two worlds and their culture will be a gift to their country’.
Ancient lineage combined with contemporary powerlessness represents a powerful riposte to the argument that the Voice discriminates unfairly in favour of the First Nations. But there is much more that could be said. The proponents of the Voice have placed all their faith in the integrity of the politicians who set the referendum process in motion and in the goodwill of the Australian people. There was no mention in the Uluru Statement, or anywhere else for that matter, of the international developments regarding the rights of indigenous people or the associated positive evolution of international law. It is hard to understand why these decisions were made. It can scarcely be a matter of ignorance. Many Australians have contributed to these developments. Was the decision made on the assumption that the introduction of international human rights would hamper rather than help the cause?
But supporters of the indigenous cause have looked to international documents for more than sixty years. It was in the 1950s that international attention turned to the human rights of minorities. The focus, up till then, had been on the rights of individuals and of nation states. Many nations were reluctant to support the rights of minorities – minorities which lived within the borders of many of them. The indigenous cause was taken up by the International Labour Organisation (ILO) based in Geneva rather than the United Nations. The ILO issued their Convention 107 in 1957. It was the first document to recognise specific rights held by the world’s indigenous people, including their right to retain their traditional lands. It was adopted by the Federal Council of Aboriginal Affairs at only its second annual meeting in 1959. Local activists quickly became aware that the 1966 International Covenant on Civil and Political Rights included a declaration (Article 27) that members of minority communities had the right to enjoy their own culture, to profess and practice their own religion and to use their own language. In 1989 the ILO issued Convention 169 which greatly expanded the rights of indigenous and tribal populations and both recognised and supported:
the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.
By then negotiations were underway at the U.N. which eventually resulted in 2007 in the acceptance of the Declaration on the Rights of Indigenous People by the General Assembly, to which Australia gave its formal support in September 2009. The Declaration recognised and reaffirmed that indigenous people ‘possess collective rights which are indispensable for their existence, well-being and integral development as a people’. They also have the right of self-determination and by virtue of that right ‘they freely determine their political status and freely pursue their economic, social and cultural development’. As well, they had the right to ‘autonomy or self-government in matters relating to their internal and local affairs’.
In June 2022 the Law Council of Australia observed that the Declaration was the ‘authoritative international standard informing the way governments across the globe should engage with and protect the rights of indigenous people’. The incoming Labor government quickly took up the cause. Foreign Minister Penny Wong has frequently expressed her intention of bringing indigenous issues into the centre of Australia’s new foreign policy. An official DFAT document of February 2023 declared that ‘we affirm our support for the objectives of the Declaration of the Rights of Indigenous people’.
The Declaration was a major milestone in the evolution of international human rights. It was of profound importance for the world’s estimated 370 million indigenous people living in 90 countries. Above all it secures them the protection of their rights as distinct people. There has been little appreciation here of the contribution of Australians to this development. The veteran Queensland activist Les Malezer was the chair of the Global Indigenous Caucus when the Declaration was adopted by the General Assembly, which he addressed on behalf of the indigenous people of the world.
The Law Council observed that Australian governments and parliaments are yet to recognise and implement the Declaration’s standards in a formal and comprehensive way. It is time, too, to bring them into the debate about the Voice to Parliament, which up to this moment has been surprisingly parochial.
Henry Reynolds is a historian whose primary work has focused on the frontier conflict between European settlers in Australia and Indigenous Australians.