Professor Justine Nolan (Director, Australian Human Rights Institute) and Professor Lucas Lixinski (UNSW Faculty of Law & Justice and Australian Human Rights Institute Associate)
Re: Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023
Thank you for the opportunity to make a submission to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum. We write on behalf of the Australian Human Rights Institute at UNSW Sydney.
We strongly endorse the proposal for Chapter IX, s 129 of the Constitution, that is before the Committee in the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023. In this submission, we outline how this proposal advances Australia’s progress on meeting its international human rights commitments and we specifically comment on how the Voice advances the permanent rights of Australia’s First Nations people and how it will operate to promote substantive equality.
The Voice proposal provides Australia with a rare opportunity to ensure that the rights of all Australians, including our First Nations peoples, are not only recognised but heard equally.
Advancing the permanent rights of Australia’s First Nations Peoples
The Voice recognises the permanent rights that are afforded to Indigenous People and Peoples and promotes those rights. Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) state that: 'All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.'
It has been long established that Indigenous Peoples have the human right to self-determination, as do all peoples. The proposed Voice to Parliament is an institutional response to the invitation in the Uluru Statement from the Heart, and manifests self-determination in that it establishes an Indigenous form of political status in order to support Indigenous economic, social and cultural development.
In 2009 Australia formally endorsed the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While the UNDRIP is a non-binding declaration of the UN General Assembly, the rights it affirms are contained in binding treaties, such as the ICCPR and the ICESCR, which Australia has ratified. The UNDRIP’s significance has been recognized by the High Court.1 Its guidance should therefore be taken very seriously by Parliament in considering the ways in which Indigenous Peoples sit in the Australian constitutional and legal order.
The UN Special Rapporteur on the situation of human rights and fundamental freedom of Indigenous People noted that the UNDRIP does not create new rights for Indigenous Peoples, ‘but rather provides a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples’.2 In other words, the provisions of the UNDRIP speak directly to binding international human rights commitments of Australia, particularly in the implementation of the right to self-determination of Indigenous Peoples in its many facets.
The UNDRIP recognises a wide range of human rights that are afforded to Indigenous Peoples including political participation (Article 5), the right to be consulted on measures to eliminate discrimination (Article 15), the right to exercise self-governance on matters that relate to their affairs (Article 4) and on how to improve their economic and social conditions (Article 21). The UNDRIP also clearly declares the right of Indigenous Peoples to ‘maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State’ (Article 5). The Voice is a direct implementation of these rights.
For example, Article 18 recognises the Indigenous right to ‘participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures’. Article 19 requires Australia to consult and cooperate in good faith with Indigenous representative institutions before adopting ‘legislative or administrative measures’ that affect their peoples.
These functions are exactly what the Voice is designed to address, and it offers a mechanism to ensure Australia is fulfilling its role to ensure the human rights of all its people are respected and protected. These rights do not create inequality, or discriminate, between Indigenous Peoples and other Australians but rather offer a contextualised approach to ensuring the views and interests of Indigenous Peoples are effectively heard.
The Voice reflects the status of Aboriginal and Torres Strait Islander peoples as holding prior exclusive occupation of this country as its First Peoples and the loss of the rights that come with exclusive occupation. This view is consistent with international law and Australia’s voluntary commitments under international law, which recognise the collective identity of Indigenous Peoples, such as our First Nations peoples, and their history of disadvantage.
Equality and non-discrimination rights
The rights to non-discrimination and equal protection are set out in Article 26 of the ICCPR. The Voice progresses, and does not detract, from these rights. The ICCPPR recognises the need for states to provide for equal protection of the law and effective protection against discrimination on any ground. It is an axiom of the right to equality and non-discrimination that differential treatment is not only permissible but may be required to achieve substantive equality.3
This provision on non-discrimination and equal protection exists in most international human rights treaties around the world. In the American Convention on Human Rights the provision is nearly identical to Article 26 ICCPR. Interpreting this provision, the Inter-American Court of Human Rights, which has the world’s most extensive jurisprudence on the rights of Indigenous Peoples in international law, stated that:
In view of the fact that the instant case addresses the rights of the members of an indigenous Community, the Court deems it appropriate to recall that, pursuant to Articles 24 (Right to Equal Protection) and 1(1) (Obligation to Respect Rights) of the American Convention, the States must ensure, on an equal basis, full exercise and enjoyment of the rights of these individuals who are not subject to their jurisdiction. However, it is necessary to emphasize that to effectively ensure those rights, when they interpret and apply their domestic legislation, the States must take into account the specific characteristics that differentiate the members of the indigenous peoples from the general population and that constitute their cultural identity. The Court must apply that same reasoning, as it will do in the instant case, to assess the scope and content of the Articles of the American Convention, which the Commission and the representatives allege were breached by the State.4
Therefore, international human rights law on equality and non-discrimination in the context of Indigenous Peoples not only allows, but in fact requires, that laws be interpreted in a way that is conducive to accommodating the specific identities and demands of Indigenous Peoples. To do otherwise would hold up an artificial view of formal equality that does not advance human rights. This view predates the UNDRIP and informs its interpretation.
The Committee on the Elimination of Racial Discrimination, in interpreting a key international treaty to which Australia is a party and which forms the backbone of the federal Racial Discrimination Act, has explicitly recognised that the rights of Indigenous Peoples, affirmed in the UNDRIP, are not in breach of broader equality and non-discrimination rights; rather, they recognise the collective identity of Indigenous Peoples.5 In other words, this body has reiterated the finding of the Inter-American Court, and made it directly relevant to the Australian context.
The protection of equality and non-discrimination requires Australia to recognize the differences that exist between its First Nations peoples and other parts of the population. It also requires that due consideration be given to the implementation of the right to self-determination of Indigenous Peoples. The Uluru Statement from the Heart is an act of self-determination, in which Indigenous Peoples themselves decided that the best path forward for them in the Australian Commonwealth is to create a self-determined institutionalised mechanism. Australia’s voluntary international legal commitments protect and promote self-determined institutions as a means to advance Indigenous Peoples’ rights and lives. The Voice is therefore a key opportunity for Australia to further its international legal commitments and is in no way in tension with any of them.
The Voice advances Australia’s commitments to ensure substantive equality for all Australians by ensuring Aboriginal and Torres Strait Islander peoples have a mechanism to be heard by making representations to Parliament and the Executive on laws and policies that affect them. It stands as the culmination of a self-determined process by Indigenous Peoples, that also is fully compliant with, and in fact encouraged, by Australia’s commitments to international law. It is thus the right thing to do on multiple levels.
Thank you for your consideration.
1. Love v Commonwealth of Australia (2020) 375 ALR 597, Thoms v Commonwealth of Australia  HCA 20.
2. S James Anaya, ‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development: Report of the Special Rapporteur on the situation of human rights and fundamental freedom of indigenous people’, UN Doc A/HRC/9/9 (11 August 2008) .
3. See eg, UN Human Rights Committee, CCPR General Comment No. 18: Non-discrimination (10 November 1989)  and .
4 .Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs) .
5. Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms Racial Discrimination, UN Doc CERD/C/GC/32 (24 September 2009) .