How could a Human Rights Act help Aboriginal and Torres Strait Islander peoples?

A Human Rights Act will help to create a fair, just and equal society for everyone. When human rights are protected by law they help to ensure that we are all treated fairly, and with dignity, equality and respect.

Protections offered by a Human Rights Act will also have relevance for particular groups of people in New South Wales – such as Aboriginal and Torres Strait Islander peoples.

Below are some case study examples of how human rights protection in other places has improved the lives of First Nations peoples.

Cultural rights

In Queensland, an Indigenous community leader and his family asserted their distinct cultural rights in a complaint against the Queensland Police Service (QPS). The cultural rights of Aboriginal and Torres Strait Islanders are expressly protected by Queensland’s Human Rights Act, including the right to maintain distinctive spiritual, material, and economic relationship with the land and waters with which they hold a connection. Adrian Burragubba and his family were camping, practising their culture, and performing traditional ceremonies on a pastoral lease area when police officers claimed they were ‘trespassing’ . The police required them to pack up their equipment and leave within an hour. A complaint conciliated in the QLD Human Rights Commission resulted in the QPS agreeing to provide a statement of regret which was able to be shared publicly and which acknowledged that the events had caused embarrassment, hurt and humiliation for Mr Burragubba and his extended family. The QPS also committed to take cultural sensitivities into account in the future.

Source: Queensland Human Rights Commission: https://www.qhrc.qld.gov.au/audience/aboriginal-and-torres-strait-islander-rights/human-rights-protections-for-first-nations-peoples

A Victorian Aboriginal woman lived in housing owned and leased by a non-Aboriginal community organisation. A condition of her tenancy was that she was required to engage with community services.

After her nephew died she went back to her country for a couple of weeks of ‘sorry business’. When she returned she started receiving warnings to engage with services, however she wasn’t able to do so because she was overwhelmed with family responsibilities, trauma and grief.

A possession order was made and the police came to her door with a warrant. Her advocates made an application for an urgent review and stay. They argued that the community organisation had failed to engage with her cultural rights and the rights of her grandchild and family members in their eviction process. These rights are protected in the Victorian Charter of Human Rights and Responsibilities Act 2006. As a result the community organisation withdrew their possession application and engaged an Aboriginal support service.

Source: Victorian Aboriginal Legal Service Submission to the 8 year review of the Charter, Submission 98 (Case Study 1).

The ACT Human Rights Commission intervened in a court case regarding the infringement of the cultural rights of an Aboriginal child detained at the Bimberi Youth Justice Centre. The child said that her human rights were breached when she was segregated from other children detained in the centre and when the centre staff confiscated artwork and the Koori Mail newspaper from her cell. The case settled with the ACT Government apologising to the girl for her experience in custody and for staff removing the artwork and copies of the Koori Mail from her cell.

Source: ACT Human Rights Commission Annual Report 2019-20, p. 28

The Victorian Parliament passed legislation to create a framework for native title agreements to be made between the state and traditional owner groups. The first agreement under this legislation was made between the Government and the Gunai Kurnai people, recognising them as traditional owners of land in the Gippsland region. The most progressive element of the legislation is that it affords traditional owners essential cultural rights as protected by the Charter. Specifically, it recognises the rights of traditional owners to enjoy their culture and identity and to maintain a spiritual relationship with the land and its resources.

Source: Victorian Equal Opportunity and Human Rights Commission, Submission to the Four Year Review of the Charter, Appendix I, 2011

Child Protection

Aboriginal children are over-represented in child protection systems and are often removed from their family and placed in the care of non-Aboriginal families. Victoria’s Commission for Children and Young People relied on the cultural rights obligations in the Charter to support its recommendations for government and community service organisations to better identify and record Aboriginal and Torres Strait Islander status in the child protection system and to make sure that Aboriginal and Torres Strait Islander children in out-of-home care have meaningful access to their culture.

Source: Commission for Children and Young People, Always was, Always will be Koori children: Systemic inquiry into services provided to Aboriginal children and young people in out-of-home care in Victoria,
2016.

Delays in the criminal justice system

An Aboriginal girl was serving a sentence in a youth justice centre in the ACT for a number of offences. While incarcerated, she was also charged with two assaults and one charge of obstructing a territory official. She was convicted of these offences and sentenced. She appealed the sentences on the basis that the sentences were excessive and that certain required factors had not been taken into account. The judge found that the sentences were inappropriate, reduced them to shorter periods and ordered that they be served concurrently with her current period of incarceration. The judge took the young person’s personal circumstances into account and found that the significant delay between the offence and the sentencing was unacceptable and in violation of the ACT’s Human Rights Act 2004.

Source: TM v Karapanos and Bakes [2011] ACTSC 74

Which rights?

The case studies above show that the rights that protect everyone have been used to protect the rights of indigenous peoples. Many of these rights originally come from the United Nations Covenant on Civil and Political Rights, the United Nations Covenant on Economic, Social and Cultural Rights, The Convention on the Rights of the Child and the United Nations Declaration on the Rights of Indigenous Peoples which provides a statement of human rights specific to indigenous peoples.

In order for the rights contained in the International Covenant on Civil and Political Rights and the Declaration on the Rights of Indigenous Peoples to be enforceable in New South Wales they need to be protected in law – for example in a Human Rights Act for New South Wales.

The preamble of the ACT’s Human Rights Act, Queensland’s Human Rights Act and the Victorian Charter of Rights and Responsibilities each acknowledge the special relevance that human rights have for Aboriginal and Torres Strait Islander people.

These Acts also explicitly protect and articulate Aboriginal and Torres Strait Islander people’s rights to maintain culture, language, and connection to land and waters.

Aboriginal and Torres Strait Islander Peoples living in New South Wales deserve the protection of a Human Rights Act too.