Contemporary human rights issue: the rights of Aboriginal and Torres Strait Islander peoples: HSC Legal Studies

What this dot point is asking

The third part of the Human Rights topic asks you to investigate a contemporary issue which illustrates the promotion and/or enforcement of human rights and evaluate the effectiveness of legal and non-legal responses to the issue. Your school chooses the issue; the syllabus suggests examples such as genocide, refugees, child soldiers and discrimination. This page covers the human rights of Aboriginal and Torres Strait Islander peoples; a second worked issue, asylum seekers and refugees, is on its own page.

The contemporary issue is examined in Section II Part A (for example 7 marks in 2023 on the effectiveness of legal responses, and 7 marks in 2024 on the impact of state sovereignty) and is also useful evidence throughout the topic.

The answer

The rights at stake

The issue engages several rights at once:

• Self-determination (common article 1 of the ICCPR and ICESCR; UNDRIP articles 3 and 4): the collective right to decide political status and pursue development.
• Culture, land and heritage (ICCPR article 27; UNDRIP articles 11, 25 to 32), including free, prior and informed consent (UNDRIP article 32).
• Equality and non-discrimination (ICCPR article 26; CERD).
• Liberty and humane treatment (ICCPR articles 9 and 10) and the rights of children (CRC).
• Economic and social rights to health, education and an adequate standard of living (ICESCR articles 11 to 13).

Australia voted against UNDRIP in 2007 but endorsed it in 2009. It is a declaration, not a treaty, and has not been incorporated into Australian law.

Land rights and native title

For more than two centuries Australian law treated the continent as terra nullius. In Mabo v Queensland (No 2) (1992) 175 CLR 1 the High Court rejected that doctrine and recognised native title where traditional connection continues and title has not been extinguished. Parliament responded with the Native Title Act 1993 (Cth). In Wik Peoples v Queensland (1996) the Court held native title could coexist with pastoral leases, prompting the Native Title Amendment Act 1998, which limited native title rights. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) showed how hard it is to prove continuous connection after dispossession. In Northern Territory v Griffiths (2019) (the Timber Creek case) the High Court awarded about $2.5 million in native title compensation, including for cultural and spiritual loss.

Statutory land rights schemes also exist, such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Aboriginal Land Rights Act 1983 (NSW).

The Stolen Generations and redress

Between roughly 1910 and 1970, governments removed Aboriginal and Torres Strait Islander children from their families under protection and assimilation policies. The Bringing Them Home report (1997) documented the removals and recommended an apology and reparations. Common law claims largely failed: in Cubillo v Commonwealth the Federal Court (2000, upheld on appeal in 2001) dismissed claims on evidentiary and limitation grounds. Prime Minister Kevin Rudd delivered the National Apology on 13 February 2008. NSW established a Stolen Generations Reparations Scheme in 2017, and the Commonwealth established a Territories Stolen Generations Redress Scheme in 2021.

The effects continue: the Family is Culture review (2019) found Aboriginal children were significantly over-represented in NSW out-of-home care.

Incarceration and deaths in custody

The Royal Commission into Aboriginal Deaths in Custody (1991) made 339 recommendations, many still not fully implemented. Over-representation has grown: in June 2026, 4,726 Aboriginal adults were in NSW custody, 33.9% of the adult custody population, and Aboriginal young people were 51.4% of young people in detention (BOCSAR). Nationally, the Productivity Commission's July 2026 Closing the Gap report found adult imprisonment (Target 10) worsening. Contributing factors include bail laws, police discretion, the low age of criminal responsibility and disadvantage linked to dispossession. The 2016 Four Corners exposé of Don Dale youth detention led to a Royal Commission into the Protection and Detention of Children in the Northern Territory (2017).

Self-determination: the Voice, treaty and truth-telling

The Uluru Statement from the Heart (May 2017) called for Voice, Treaty and Truth. The referendum on 14 October 2023 to establish an Aboriginal and Torres Strait Islander Voice in the Constitution was defeated, with about 60% voting No and No majorities in all six states.

Progress has continued at state level, unevenly:

• Victoria: the Yoorrook Justice Commission (2021 to 2025) conducted formal truth-telling. The Statewide Treaty Act 2025 passed Parliament in October 2025, and Australia's first statewide treaty was signed on 13 November 2025. It established a permanent First Peoples' representative body, Gellung Warl, on 1 May 2026.
• South Australia: the First Nations Voice Act 2023 (SA) created a legislated state Voice, first elected in 2024.
• Queensland: after a change of government, the Path to Treaty Act 2023 was repealed in 2024.

Cultural heritage

In May 2020 Rio Tinto lawfully destroyed the Juukan Gorge rock shelters in Western Australia, sites of the Puutu Kunti Kurrama and Pinikura peoples with 46,000 years of occupation, under approval given by the WA Aboriginal Heritage Act 1972. A federal parliamentary inquiry (Never Again, 2021) called for stronger national protection. Western Australia passed a new heritage Act in 2021 but repealed it in 2023 after backlash, and national reform has stalled. The case shows how weak heritage law can fail to protect cultural rights and why free, prior and informed consent matters.

International scrutiny

UN bodies have repeatedly criticised Australia: the Committee on the Elimination of Racial Discrimination (2017) raised incarceration, native title limits and the Intervention; the Special Rapporteur on the Rights of Indigenous Peoples visited in 2017; and at Australia's fourth Universal Periodic Review on 26 January 2026, 27 states made recommendations on raising the minimum age of criminal responsibility. In Daniel Billy v Australia (2022) the UN Human Rights Committee found Australia had violated Torres Strait Islanders' rights to culture and family life by failing to adapt to climate change.

Legal and non-legal responses

Evaluating effectiveness

Judgement. Legal responses have been most effective where courts or parliaments created enforceable rights (native title, anti-discrimination law, the Victorian treaty) and least effective where outcomes depend on sustained political will and funding (incarceration, Closing the Gap). Non-legal responses have shifted public understanding and supported reconciliation but cannot, on their own, secure rights.

In one sentence

The rights of Aboriginal and Torres Strait Islander peoples have been significantly recognised through native title, anti-discrimination law, the Apology, redress and Victoria's 2025 treaty, but remain unequally realised because the Voice was rejected, UNDRIP is not incorporated, heritage protection is weak and incarceration continues to rise.

Try this

Q1. Outline ONE legal response to the rights of Aboriginal and Torres Strait Islander peoples. (3 marks)

• What the marker wants. An accurately described response (for example the Native Title Act or Victoria's treaty) with its effect.

Q2. Explain how state sovereignty affects the protection of Indigenous peoples' rights in Australia. (5 marks)

• What the marker wants. Sovereignty enabling legislation and endorsement of UNDRIP, and limiting enforcement (declaration not incorporated, RDA suspension), with examples.

Q3. Evaluate the effectiveness of legal and non-legal responses to this issue. (7 marks)

• What the marker wants. A judgement weighing both types of response with current evidence and criteria.