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 PM 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. The UN news release announcing the decision summarised 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. Self-determination applied to situations of decolonisation and the break-up of States into smaller states with clearly defined population groups. It also applied where a particular group with a defined territory was disenfranchised and was denied political or civil rights. 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 this UN declaration as justifying the creation of separate indigenous states within Australia.
Howard was replaced as Prime Minister by the Labor Party’s Kevin Rudd, who 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 a state of their own, either within or outside the existing Commonwealth. 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 states. 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 in black 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 academics. 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 with Ronald Wilson of the 1997 Bringing Them Home report on the Stolen Generations 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. She served as a fellow of the United Nations Office of the High Commissioner for Human Rights in Geneva where, between 1999 and 2004, she too was 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.
Since then, under Davis’s chairmanship, this forum has invited 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, used the opportunity to pile on accusations of breaches of the Declaration of the Rights of Indigenous Peoples and thereby help make the case for Aboriginal independence. Huggins told the forum Australia’s failings included:
…in terms of the obligations and duties of the Australian Government to meet human rights responsibilities and, in particular, to achieve the ends of the Declaration. The Australian government has implemented 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 the principal federal 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”. Instead of the restriction of these habits amounting to beneficial social reform, as many Australians once thought they were, 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.”
All of 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 internationally enforced 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.
As well as supporting the campaign for independent black states, 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.
Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
The declaration also endorses customary law and wants indigenous tribunals to determine breaches and punishments, with the sole constraint that they remain consistent 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 latter’s legal system does 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.
The UN also supports the principle that indigenous people themselves should determine who qualifies as indigenous.
Article 33.1: Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.
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, its judges would be highly likely to argue that, given Australia’s commitments to international laws and covenants, they could not be accused of adventurism in granting Aborigines new rights, because their hands were already tied by the international legal community. 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 is what they did in 1979 in the Coe v. Commonwealth case that went to the High Court, initiating the legal campaign for Aboriginal sovereignty.
It was followed by the Mabo case before the High Court 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 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 three per cent of the Australian population. Thanks to the Native Title Tribunal, this small group of Australians has 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. Mabo, he said:
…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. In this respect, Mabo has dictated that the common law of Australia will in future be influenced by legal authority, policy, principle and applicable rules of international law.
The problem with Kirby’s scenario is that it imposes an international outlook on national interests, and the two perspectives do not necessarily fit. If the Aborigines are seen from the international point of view as “first peoples”, with the same set of rights as others around the world in the same category, then there is some consistency in arguing they all have similar rights by virtue of arriving “first”, or at least arriving before the Europeans. In this sense, it might appear intellectually elegant to argue that the rights of “first peoples” are universal.
But there is an obvious political issue that is not being confronted here. Such international rights are 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: which is to prevail, Australian domestic law or international law?
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, it is not hard to show that in the conflict between the two, the losses are all on the national 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 international and transnational law 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. Through judges’ networking on foreign and international tribunals, coupled with the immediate availability of online transcripts of judgments and casebooks, a “global community of courts” is emerging. According to the American legal and political historian John Fonte, 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. Government policy is being decided less by open debate in parliaments and the national media and more in the comparatively closed world of legal judgments, learned journals, international conferences and academic seminars. While national law is made by the people through their elected representatives, international law is made by an authoritarian elite through a dialogue they conduct only among themselves.
This is the environment through which the current demand for the Voice has emerged. Australian voters, however, are being left in the legal dark. They should approve the Voice, says current PM Albanese, simply because it would be “good manners”. This is a far more disturbing political issue than that. Voters are actually being asked to create new constitutional entitlements which, as the Australian objection in 2007 to the UN Declaration of Indigenous Rights rightly said, would impair the territorial and political integrity of our system of democratic representative government.
This is an edited version of an analysis originally published in Keith Windschuttle’s The Break-up of Australia (2016), Chapter Two.
. Barunga Statement Presented to Prime Minister Bob Hawke in 1988, at http://www.australia.gov.au/about-australia/australian-story/bark-petition-barunga-1988
. ‘Australia Adopts UN Declaration’, ABC News, 3 April 2009, http://www.abc.net.au/news/2009-04-03/aust-adopts-un-indigenous-declaration/1640444
. Speech by Jackie Huggins delivered to the United Nations Permanent Forum on Indigenous Issues, New York, 9–20 May, 2016, published by NITV News, 20 May 2016, at http://www.sbs.com.au/nitv/nitv-news/ article/2016/05/20/jackie-huggins-un-government-has-not-met-its-international-human-rights-standards
. See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2, p. 23
. (1992) 175 Commonwealth Law Reports, 1, p 42
. John Fonte, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others?, Encounter Books, New York, 2011, pp 106–8
. Fonte, Sovereignty or Submission, pp 116–18. The phrase ‘global community of courts’ derives from Peter J. Spiro, ‘Disaggregating US Interests in International Law’, Law and Contemporary Problems, Autumn 2004, Vol. 67, pp 195–219