Editor's Column

International Law and the Voice

We, the Indigenous owners and occupiers of Australia, call on the Australian Government and people to recognise our rights … in accordance with the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, rights to life, liberty, security of person, food, clothing, housing, medical care, education and employment opportunities, necessary social services and other basic rights.Barunga Statement, presented to Prime Minister Bob Hawke, July 1988

On September 13, 2007, the United Nations’ General Assembly adopted its Declaration on the Rights of Indigenous Peo­ples. The assembly recorded 143 votes in favour of the declara­tion, eleven abstentions and four votes against. The four against were cast by Australia, New Zealand, Canada and the United States. A UN news release recorded the objections made by the Australian delegation:

Australia’s representative said his Government had long expressed its dissatisfaction with the references to self-determination in the text … Australia supported and encouraged the full engagement of indigenous peoples in the democratic decision-making process, but did not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government.

In other words, the Howard government, then in its last days before its defeat in the election of November 2007, recognised the UN declaration would compromise Australia’s democratic politics.

Howard’s successor as Prime Minister, Kevin Rudd, took a different view. Although Australia was not a signatory to the declaration, the Rudd government offi­cially adopted it at a ceremony in Parliament House, Canberra, in April 2009. Rudd thereby committed Australia to support the notion that Aborigines were a politically separate people, sover­eign in their own right, who were entitled to territory of their own. The decla­ration itself makes it clear that this is, indeed, its logical conclu­sion:

Article 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and they freely pursue their economic, social and cultural development.

The declaration, however, does contain one caveat to complete secession from existing nations. This occurs in Article 4 where it says that self-government is related to “their internal and local affairs”:

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

In other words, the declaration supports self-government for Aboriginal states within the Australian Commonwealth, rather than secession from the Commonwealth. Nonetheless, it obviously sets the Aboriginal political class a compelling goal to pursue in the next stage of its unfinished business.

This is not surprising, since the declaration was largely written by Australian Aboriginal activists. For several years, the Aboriginal and Torres Strait Islander Commission maintained at Australian expense a permanent office in Geneva where it lobbied members of the United Nations Human Rights Council and helped draw up the declaration. The Australian most involved was Mick Dodson, co-author of the 1997 Bringing Them Home report that accused Australia of genocide. Dodson subsequently served as a member of the UN’s Permanent Forum on Indigenous Issues in New York, a body which recorded his role as follows:

Mick has for over a decade participated in the crafting of the text of the Draft Declaration on the Rights of Indigenous Peoples in the United Nations Working Group on Indigenous Populations and in its more recent considerations by the Working Group of the United Nations Commission on Human Rights.

Another Australian who played a similar role was Megan Davis, Professor of Law at the University of New South Wales, who was also one of the drafters of the Declaration on the Rights of Indigenous Peoples. In 2010 she was appointed to the UN Permanent Forum on Indigenous Issues as an “expert member”, and in 2015 she was made its permanent chair. Davis has used this forum to invite Aboriginal activists to its New York sessions to give evidence about how racist and reprobate Australia supposedly is. At one such session, Aboriginal academic and co-chair of the National Congress of Australia’s First Peoples, Jackie Huggins, made accu­sations of breaches of the Declaration of the Rights of Indigenous Peoples and thereby helped make the case for Aboriginal sovereignty. Huggins told the forum Australia’s failings included:

numerous programs and actions which do not meet international human rights standards … Despite many recommendations by the United Nations over the years calling upon States to review their constitutions and laws to ensure non-discrimination, equality and respect for the rights of Indigenous Peoples, the Australian Constitution remains unchanged and allows the parliament to make laws which discriminate against Aboriginal and Torres Strait Islander peoples.

Huggins told the forum that Australian government policy for over­coming Aboriginal social and health problems, especially its adoption of cashless welfare cards, undermined the dignity of people in remote communities with its “mandatory regimes that are in place to restrict expenditure on alcohol, gambling and tobacco”. Huggins said the government was breaching UN principles. “In reality,” she said, it “advances poli­cies and actions that explicitly remove and deny indigenous control and decision making.”

These claims, no matter how dubious, were made so they could be used against Australia in international courts and other forums. Australia is being treated as if it was a racist regime like South Africa before its international reputation enforced the reforms of 1994. The proponents of this fiction who, like those at Barunga, claim they are the legitimate “owners and occupiers of Australia”, are trying to bring about a similar outcome by making Australia an international pariah.

The UN declaration endorses other policies long demanded by radical Aboriginal activists. If Australia votes for constitutional approval of the Voice, these are the kinds of demands that will be put before Parliament and its bureaucracy. For a start it supports the estab­lishment of separate indigenous political structures:

Article 18: Indigenous peoples have the right to participate in decision-making matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

The declaration also endorses customary law and wants indigenous tribunals to determine breaches and punishments, with the sole constraint that they accord with con­cepts of international human rights. Apart from the fact that indigenous people remain entitled to all the host nation’s welfare and citizenship benefits, the host nation’s own laws do not rate a mention:

Article 34: Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in cases where they exist, juridical systems or customs, in accordance with international human rights standards.

All this should be enshrined in treaties and agreements between the state and those who define themselves this way.

Article 37.1: Indigenous peoples have the right to the recognition, observance and enforcement of Treaties, Agreements and Other Constructive Arrangements concluded with States or their successors and to have States honour and respect such Treaties, Agreements and other Constructive Arrangements.

If the right case were to come before the High Court of Australia, its judges would be highly likely to argue that, given our com­mitment to international laws and covenants, they could not be accused of adventurism in granting Aborigines new rights, because their hands were already tied by international law. Hence, one of the real aims of those who want to embed the Voice in our Constitution is that it would enable them to bypass the democratic procedures of our political system and go to the courts first.

This was the tactic of the Mabo case for land rights, whose eventual outcome in 1992 reversed more than 150 years of previous court deliberations to find that native title or Aborigi­nal ownership of the land was part of the common law of Aus­tralia. It was only after the High Court’s Mabo judgment that the Labor government of Paul Keating put up the Native Title Act 1993 to enshrine the decision in an act of parliament.

The role of international law and UN covenants in the Mabo decision was made clear in the judgment of Justice Gerard Brennan who quite explicitly sought to make Australia’s common law conform to international conventions. Brennan’s judgment said:

The opening up of international remedies to individuals pursuant to Australia’s accession to the Option Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

Now, the High Court’s discovery of native title was not a matter of universal human rights. From the perspective of the Australian nation and Australian law, it was about the enti­tlements of a particular ethnic minority group amounting to about 3 per cent of the population. Thanks to the Native Title Tribunal, this small group of Australians have now been given land rights to more than half the continent of Australia. Nonetheless, this outcome seems to matter little to other members of the judiciary who continued to equate universal rights with minority interests. In 1994, Michael Kirby, then a judge on the New South Wales Court of Appeal, later appointed to the High Court, pre­dicted that Mabo was anything but a one-off case. Commenting on Brennan’s judgment, Kirby said that it:

has reinforced the legitimacy of international law and instruments as proper sources of influence in the development of the domestic common law of Australia. As the cases bear out, such use of international material need not be limited to circumstances in which “international law declares the existence of universal human rights”. The use will come to extend to other, perhaps more mundane, circumstances.

There is an obvious political issue here that is not being confronted. Some High Court judges are supporting the notion that international law, which originated in the eighteenth century as a means of reducing disputes between nation-states, can now be used to give dissenting domestic minority groups special rights that pay no attention to universal human rights.

This is all in direct conflict with the national inter­est, which sees that the rights of minority groups should not be ele­vated above those of other citizens. There is a real dispute here and the principal question that arises is: who is to prevail? As the influence of international law grows, it is not only the common law that has to change, but also the democratic rights of the majority of the people.

To date, those on the side of international law have tried to calm any anxiety at the national level by claiming the two sys­tems are compatible. However, in the case now being mounted for the Voice, the losses are all on the majority’s side.

International law is not decided by parliaments elected on the principle of one citizen, one vote. Today, much of it is the prod­uct of the United Nations’ Human Rights Council and other trans­national quasi-judicial and human rights organisations, as well as academic law professors, legal philosophers, interna­tional relations advisers, and judges on international tribunals. Most have been appointed to their positions by like-minded offi­cials and thinkers, that is, it is a self-reproducing network. Currently, the UN Human Rights Council is chaired by Argentina and its members include China, Pakistan, Cuba, Venezuela, Libya, Sudan, Qatar and the United Arab Emirates. These are the people who Justices Brennan and Kirby argue are fit to resolve human rights issues for Australia.

International law is now one of the leading growth areas in the legal profession. Its practitioners are among the foremost intellectual theorists of an expanding enterprise that is not only promoting the growth of international human rights and other treaties, but is also responsible for overturning many long-held assumptions within national legal traditions. According to the American legal and political historian John Fonte, in his book Sovereignty or Submission (2011), this amounts to a de facto constitutional authority that sits above national constitutions and is enforced mostly by compliant national courts. Hence the citi­zens of nation-states increasingly find themselves governed by regulatory institutions unaccountable to them and which, in many cases, they did not even know existed.

In short, this movement is a reversal of our accepted political arrangements. It is taking power from democratically elected parliaments and vesting it in courts, non-government organisa­tions and transnational bodies. Voters are increasingly finding their representatives beholden to international treaties, interna­tional legal conventions, foreign precedents, transnational bureaucrats and lawyers.

This is the environment through which the current demand for the Voice has emerged. Australian voters are being left in the legal dark. The Voice is a move to create new constitutional entitlements by stealth. It would jettison the principle that, no matter when they or their ancestors arrived here, all Australians are equal. If it is successful, the real victims will be the majority of Australian voters who will find their country’s long-standing political commitment to egalitarianism and a fair go has been emasculated behind their back.

10 thoughts on “International Law and the Voice

  • Elizabeth Beare says:

    When, and how, will our Nation ever be able to unwind all of these Constitutional and High Court harms already done or about to be done in our name? For it seems as though we are sheep led to the fold of saying Yes to it all by the societal forces now owned by the left: the media, the big corporates, the education sector, the bureaucracy, the legal system – all on the string of a Labor Party determined to toss so much away. Even now some EU created international courts are still holding Britain to ransom on some issues.
    Thank you, Keith, for the overview above and outline of what it will all mean.

  • DougD says:

    The membership of the UN Human Rights Council, including that of Qatar, is interesting, Qatar has stood by as 6500 “guest workers” aka modern day slaves have died building the edifices to football that many ‘civilised’ people and corporations will flock to and support. And not a whisper of criticism in the Australian media of this squalid council’s “ruling” that by failing to act on climate change, the Australian government violated the rights of Torres Strait Islanders. What will Justice Bromberg make of this nonsense, let alone many on the current High Court?

  • Doubting Thomas says:

    I was enormously impressed by the UN’s recent decision that Australia was guilty of infringing the rights of Torres Strait Islanders by failing to deal adequately with global warming. This is veritable “camel through the eye of a needle” stuff.
    One must assume that the UN believes that it is competent to determine that TSIs are uniquely vulnerable to even the slightest degree of as yet unquantifiable, and still barely theoretical, anthropogenic climate change. This is presumably something that the UN believes that the adjacent Cape York Caucasian population is either entirely immune to, or that they have no comparable Human Right of protection from.
    Does the UN also believe that the Australian Government is also responsible for any harm to the Papua New Guinea peoples just a few kilometres to the north.
    Aren’t bureaucracies wondrous things?

    • Botswana O'Hooligan says:

      Yairs DT, one wonders if the people from Bamaga will go back to their original Island of Saibai lickety split to get their palms greased with taxpayer largesse. Those people came from Saibai just after WW2 when the Island was supposedly sinking and didn’t, just some king tides. The irony of it all was that an aeroplane went in the drink in the passage between the Island and PNG which is about spitting distance away during WW2 and even in the early eighties the blue painted prop tip was visible at low tide as it had been since about 1945. Last time I was there the joint was populated, the airstrip was operational, and the people enjoyed their way of life as usual. We are being “got at” big time so poor fellow my country.

      • Blair says:

        “…one wonders if the people from Bamaga will go back to their original Island of Saibai lickety split to get their palms greased with taxpayer largesse. ”
        Well the Torres Strait Islander “leaders ” never objected to the myth of a “Stolen Generation” of Torres Strait Islander children, so I wouldn’t be surprised.

  • Macspee says:

    As Eddie Mabo’s land was on an Island somewhat well off the coast of Australia where the ownership of identifiable and distinct areas of land were owned and occupied for many years, I have always had some difficulty with the High Court’s decision. It has sounded more like obiter dicta there being no dispute over the ownership of mainland land to be determined. Or have I misunderstood the case?

    • NarelleG says:


      Haddon’s work was used to determine that the islanders had had continuity with their land and hence NT was granted.

      Haddon’s work also proved that the mainland aborigines had arrived in various waves of migration and therefore no continuity with the mainland.

      Keating rushed in in 1992(?) and had it legislated that NT to be applied to the mainland.
      From memory not all mp’s got to vote.
      John Singer could clarify that one for me.

      Suffice to say NT on the mainland is a scam and needs to be overturned in the High Court.

      Further – The Races of Man by Haddon was used to provide evidence in the Mabo claim for land rights.
      This same resource accepted by the High Court as credible evidence providing the win for Mabo’s Melanesian culture of land ownership in the Torres Strait, records contemporary Aboriginals as Pre-Dravidian, people originally from the Indian sub-continent.
      Haddon then records Negritoes as being originally found in Australia.

      Yet current governments and the Federal Court ignore the same evidence recognised in the High Court of Australia to provide Native Title to false claimants in 2022.
      Contemporary Aboriginal people are not the first people and should have no Native Title right. They should be treated as equal citizens only.
      The Mabo defence proved this when it tabled Haddon’s work as evidence to support its High Court case.
      “The timing of Haddon’s Cambridge expedition—less than 20 years after the assertion of British sovereignty over the Murray Islands—meant that the reports of the expedition were destined to become a critical source of information in the Mabo case to prove continuity of traditional land tenure over the period of colonisation. “

  • john.singer says:

    @Macspee…. Actually the High Court, acting on the advice of the Queensland Supreme Court, rejected Eddie Mabo’s claim to any land on the Island of Mer. Mer, one of the 3 Murray Islands, was only annexed by the British Colony of Queensland in 1879. The Island was clearly cultivated so any argument of “terra nullius” should never have been considered by the Court let alone applied to the mainland. The mainland where the only land usage, prior to 1788, was Usufructuary.

  • STD says:

    Firstly the UN is chock full of reprobates. It is effectively and in effect an anti force, whose prime motive is to destroy a sovereign countries right to function and exist- in effect it’s motive is ,unconstitutional..
    Secondly common sense tells me it has much larger fish to fry, and yet the proverbial blind eye gazes toward itself -the Leninist ,Stalinist progressive horizon.
    They pick on Australia and effectively bully the weak kneed lily livered political classes (scum) on both sides of our spectrum..
    This is from an Organisation who has given us politicised climate change refuse ( to use the words of Dr Peter Kreeft- “it’s the S word”.) and now this other garbage – the proverbial political ‘Dung’ that is lost in it’s very own wilderness – that Marxist inspired verbosity -their Voice.
    Meanwhile Pol Pot does what Pol Pot ( the magic pudding) does best – the ILO conglomerate of China (Xi), and Russia under the reprobate Putin hypocritically deny and psychologically torture and murder their own race and citizenship.
    Then we have Climate Change ,caused as they say by human pollution, of which the vast majority exist and reside in the that oasis of (sophistication)Carbon Cholera the northern hemisphere , yet it’s the vast empty expanse of Oz that the European and Asiatic collective gaze is picking on and focused.
    Now let’s all think of Einstein and the protuberance of that tongue-Ahhh!
    That little black book – “The Masters of Deceit “, by J Edgar Hoover – which illuminates the racial tactics ,specifically the black tactic ,used to further the lefts political deceit (pudding) comes to mind.
    The Voice is the Black Australia policy……

  • padraic says:

    Thanks Keith for exposing the ramifications of the stupid adoption by Rudd in 2009 of the UN’s Declaration on the rights of Indigenous Peoples. That declaration, from an historical point of view, was the end-point of years of behind the scenes work of activists who use the UN to push their political agendas. In the wake of WW1 the Ottoman Empire collapsed. In the wake of WW2 the European empires collapsed and in more recent times the Russian Empire collapsed. The individual nation states that emerged from the collapse of the Ottoman Empire adopted different types of governance models as well as splitting traditional groupings like the Kurds as minorities into various countries. The worst type of governance – as in Iraq and Syria, for instance – was having a minority group in the new nations controlling the majority, as we saw with Saddam Hussein, with such a situation having constitutional backing. India in 1948 began the dissolution of the British Empire, Indonesia from the Dutch in 1949, Morocco from the French in 1956 and Algeria by 1962 and many African colonies of the various European powers in the 60s. After the waters of European colonisation receded from the 1940s to the 1980s you were left with two types of polities – one where the descendants of the original inhabitants outnumbered the descendants of the original settlers and by adopting the contemporary democratic model of “one man, one vote” and “majority rule” took control of the country. This was fairly peaceful when the minority was small (but not always peaceful – vide Katanga) but where you had a sizeable chunk, albeit in a minority of the population, descended from the European settlers there was strong resistance to independence – Rhodesia and Algeria spring to mind. I was in Paris in 1964 when De Gaulle was having trouble with the “pieds noirs” that had been pulled out of Algeria in 1962 and many of whom had been resettled on farms in “Les Landes” area in south-eastern France. The other type of polity after the waters receded was one where the descendants of the early settlers were much more numerous than those descended from the original inhabitants as in Canada, USA, Australia, New Zealand , countries in Latin America etc. In the 1960s, mainly through the auspices of the UN, those colonies in the European empires with original inhabitant majorities obtained the legal right to seek independence but where descendants of the early settlers were in a massive majority (e.g. Australia, USA, Canada and New Zealand) and the countries were already regarded as independent nation states, the descendants of the original inhabitants were seen as citizens of those countries with the caveat that such minorities should not be singled out for special treatment or discrimination. The mechanism for this initially was the UN Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR). Both these instruments were adopted by Canada, Australia and New Zealand. Since then other UN instruments have been developed and then adopted by these countries and it is these international legal instruments that have been used by the minorities of descendants of original inhabitants to try and influence domestic policies – as we are now seeing in Canada, New Zealand and Australia. Our Constitutions allow us to adopt these UN instruments without a referendum or much (if any) consultation with the citizens. A specialised area of the legal profession has built up around these UN instruments and its activists see using these instruments as a way of getting around the democratic process and hence put the descendants of the original inhabitants in charge again, one way or another, despite their minority status. In Australia this objective needs to be bolstered by having a recognition “Voice” in the Constitution . Article 27 in the ICCPR is one used to “beat us about the head” to progress this agenda. It states “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group ,to enjoy their own culture , to profess and practise their own religion, or to use their own language.” In the early stages of its adoption into domestic law governments saw their role to stand back as not to get in the way of minority cultures, religions or languages being exercised privately within the unitary polity, but the activists have turned it around and the governments are now expected to promote and enforce such activities, resulting in “multiculturalism” (i.e. putting people into ethnic, cultural or religious boxes – and stay there) or in case of Aborigines, overwhelming the rest of us with “culture” (always was, always will be; sovereignty never ceded; welcome to country; frontier wars, etc) that is aimed at separating the country into two blocs. It appears that the USA has not adopted ICERD or ICCPR, no doubt because they did not consider themselves part of the European colonial empire – but with Canada , Australia and New Zealand they were “sitting ducks” on account of their residual attachment to the Crown which had previously overseen the British Empire, and the activists see they need to do a deal with the Crown rather than our national governments whose legitimacy they do not recognise. That’s probably why Labor wants to get the Voice referendum out of the way before the Republic referendum and why they are cosying up to the new King. I am sure that while the rest of us are watching the Finals on TV, going to work and paying our taxes, the woke warriors behind the scenes will be beavering away like white ants to hollow out the structures supporting our democracy, funded by the unsuspecting taxpayer. Another shark lurking outside the nets is what happens to “Crown Land” if the Republic referendum got up and what would be the implications for Native Title?

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