How effectively does Australian law protect the human rights of Indigenous Australians?
Investigate a contemporary human rights issue in depth, including the human rights of Aboriginal and Torres Strait Islander peoples
A focused answer to the human rights of Aboriginal and Torres Strait Islander peoples as a contemporary issue. Covers native title, the Stolen Generations, deaths in custody, the Uluru Statement from the Heart, the 2023 referendum on a Voice to Parliament, and current Closing the Gap data.
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What this dot point is asking
NESA wants you to examine one contemporary human rights issue in depth. The human rights of Aboriginal and Torres Strait Islander peoples is one of the most commonly chosen issues, and the most current after the 2023 referendum. Expect this as a 15-mark Section III response.
The answer
Framing
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).
Native title
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.
Wik Peoples v Queensland (1996) 187 CLR 1 held that native title could coexist with pastoral leases, generating the 1998 amendments to the Native Title Act 1993 (Cth) (the "Ten Point Plan").
Native title has been recognised over substantial parts of Australia, particularly in northern and central regions. The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (since repealed in 2005) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provide additional land rights mechanisms in particular jurisdictions.
The Stolen Generations
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 National Apology to the Stolen Generations was delivered by Prime Minister Kevin Rudd in the House of Representatives on 13 February 2008. The Cummeragunja Run-off Mission and other historic policies are now the subject of state-based reparation schemes (e.g. the Stolen Generations Reparations Scheme NSW, established 2017).
The High Court in Cubillo v Commonwealth (2000) 103 FCR 1 dismissed compensation claims for forced removal on evidentiary and limitation grounds, illustrating the limits of common-law remedies.
Deaths in custody
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 Coronial Court of NSW and Victorian and Queensland coroners continue to hold inquests into Indigenous deaths in custody (e.g. the inquest into the death of Veronica Nelson in Victoria, finding multiple systemic failings, was the basis of the 2022 Yoorrook Justice Commission inquiry referrals).
The Uluru Statement from the Heart (2017)
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 2023 Voice referendum asked Australians to amend the Constitution by inserting a new chapter establishing an Aboriginal and Torres Strait Islander Voice to advise Parliament and the Executive Government. The referendum was held on 14 October 2023. The proposal was rejected: 60.06 percent No nationally, with No majorities in all six states. The constitutional change failed.
Following the referendum, the Commonwealth Government has continued to pursue truth-telling (the Yoorrook Justice Commission in Victoria, established 2021) and treaty processes at state level (Victoria, Queensland, Northern Territory and South Australia at various stages).
Closing the Gap
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.
International scrutiny
The UN has repeatedly criticised Australia's record:
- the UN Committee on the Elimination of Racial Discrimination concluding observations (most recently 2017) raised concerns about Indigenous incarceration, native title constraints, and the Northern Territory Emergency Response;
- the UN Special Rapporteur on the Rights of Indigenous Peoples conducted a country visit to Australia in 2017 and identified persistent breaches;
- the Universal Periodic Review of Australia (most recent cycle in 2021) received recommendations on Indigenous rights from over 30 states.
Legal and non-legal responses
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.
Non-legal responses. The National Congress of Australia's First Peoples (defunded 2019); Reconciliation Australia; the Healing Foundation; the National NAIDOC Committee; the Yoorrook Justice Commission (Vic).
Effectiveness
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.
Limitations. The 2023 referendum result. The persistent over-representation of Indigenous people in custody. Slow progress on Closing the Gap targets. The Racial Discrimination Act 1975 (Cth) has been suspended multiple times (Northern Territory Emergency Response 2007; Stronger Futures legislation 2012).
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