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.