Quick questions on Contemporary human rights issue: Indigenous Australians and the law

The human rights of Aboriginal and Torres Strait Islander peoples engage civil and political rights (vote, fair trial, freedom from discrimination), economic, social and cultural rights (health, education, housing, employment), the right to self-determination (article 1 of the ICCPR and ICESCR), and cultural rights (article 27 of the ICCPR and the United Nations Declaration on the Rights of Indigenous Peoples 2007).

For most of the post-colonial period, Australian law treated the continent as terra nullius (land belonging to no one). The High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 rejected terra nullius and recognised native title at common law. The Commonwealth Parliament responded with the Native Title Act 1993 (Cth), which codified the recognition and provided procedures for claims.

Between 1910 and 1970, Australian governments forcibly removed Aboriginal and Torres Strait Islander children from their families under racial assimilation policies. The Bringing Them Home report (1997) documented the practice and recommended a national apology and reparations.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) delivered its final report in 1991 with 339 recommendations. Many remain only partially implemented. Aboriginal and Torres Strait Islander people continue to be over-represented in custody at every level. The Australian Institute of Health and Welfare (AIHW) and the Productivity Commission Closing the Gap Annual Reports document the persistent over-representation.

The Uluru Statement from the Heart was issued in May 2017 by 250 Aboriginal and Torres Strait Islander delegates at the National Constitutional Convention. It called for three reforms: a constitutionally enshrined Voice to Parliament, a Makarrata Commission for treaty-making, and a process of truth-telling.

The National Agreement on Closing the Gap (2020) sets 19 socio-economic targets across health, education, employment, justice and culture. The Productivity Commission Annual Closing the Gap Report 2024 found that most targets are not on track. Indigenous incarceration rates have not improved. Life expectancy gaps have narrowed slowly.

The UN has repeatedly criticised Australia's record:

Legal responses. Native Title Act 1993 (Cth); Racial Discrimination Act 1975 (Cth) s 9 and s 10; Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); state heritage Acts; the Free, Prior and Informed Consent requirement under the UN Declaration on the Rights of Indigenous Peoples 2007.

Strengths. Mabo (1992) and the Native Title Act 1993 (Cth) ended terra nullius. The 1995 amendments to the Racial Discrimination Act 1975 (Cth) made racial vilification unlawful. The 2008 National Apology was historically significant.

Native Title Act 1993 (Cth); Racial Discrimination Act 1975 (Cth) s 9 and s 10; Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); state heritage Acts; the Free, Prior and Informed Consent requirement under the UN Declaration on the Rights of Indigenous Peoples 2007.

The National Congress of Australia's First Peoples (defunded 2019); Reconciliation Australia; the Healing Foundation; the National NAIDOC Committee; the Yoorrook Justice Commission (Vic).

Mabo (1992) and the Native Title Act 1993 (Cth) ended terra nullius. The 1995 amendments to the Racial Discrimination Act 1975 (Cth) made racial vilification unlawful. The 2008 National Apology was historically significant.

The 2023 referendum result. The persistent over-representation of Indigenous people in custody. Slow progress on Closing the Gap targets.

It did not. The referendum failed nationally and in every state.