Before we launch into the debate about a national Bill of Rights, we should right the wrongs underway right now in the Northern Territory. Professor Larissa Behrendt explains.
When the framers of our Constitution sat down to draft our Constitution they looked at the way that other countries, in particular the United States and France, had included rights within their legal systems. They decided that the decision-making about rights protections, which ones we recognise and the extent to which we protect them, were matters for the Parliament. They discussed the inclusion of rights within our Constitution but decided to leave it silent on most human rights.
It was decided that entrenched rights provisions were unnecessary and that Australian states would have the power to continue to enact laws that discriminated against people on the basis of their race. As testament to this, the first legislation passed by the new Australian Parliament were laws that entrenched the White Australia policy.
In 1997 the High Court of Australia heard the case Kruger v Commonwealth that considered the legality of the formal government assimilation-based policy of removing Indigenous children from their families. Children who had been removed under the Northern Territory Ordinance that permitted for the removal of Indigenous children from their families on the basis of their race, and one mother who had lost her child under the same provision, claimed a series of human rights violations. These included the implied rights to due process before the law, equality before the law, freedom of movement and the express right to freedom of religion contained in s.116 of the Constitution. They were unsuccessful on each count. The decision of the court highlighted the general lack of human rights protection in our legal system and also emphasised how, when those rights are not protected, there is a disproportionately high impact on the vulnerable.
We continue to see evidence of this in Australia today where the lack of a human rights framework has meant that there is no benchmarking about acceptable standards of human rights protection in policy. This continues to permit discriminatory policy that impacts on the dignity of Aboriginal people and does nothing to alleviate their poverty and disadvantage.
Within this legal framework, one without human rights benchmarks, policies are made that impact on the lives of Aboriginal and Torres Strait Islander people for which there is no ability to challenge or seek redress for any negative impact. This framework has permitted the destruction of cultural heritage and language, taken away rights to land, fishing and hunting and resources and has permitted the policy of removing Aboriginal people from their families.
Barbara Shaw lives in an Alice Springs town camp. She has her own children but often looks after others. She has supported her family all her adult life. When the Northern Territory Intervention was rolled out she found, with no consultation or notice, her income was suddenly restricted by quarantining.
Barb is nobody’s fool but she had problems navigating the system at first. She found her ability to travel restricted because the store card issued to her cannot be used in other states. She knew people who could not travel for sorry business or cultural business because of these restrictions. She knew women who, like herself, could not afford Christmas presents because of the restrictive nature of the way the quarantining worked. It was also impossible to buy white goods. Barb, who had always provided for her family, never neglected her children and always focused on their education, resented that Centrelink used to segregate the lines between those whose income was quarantined and those who weren’t. There were only black people in her line.
She also resented the separate queues at the shops and had on more than one occasion been confronted by shop owners angry and frustrated with the card system. She could not tell how much was on the card and sometimes did not have enough for her purchases and had to take items back.
Barb has taken her complaints about the welfare quarantining system to the United Nations. The Racial Discrimination Act and the Northern Territory anti-discrimination legislation were suspended from applying to women and men in Barb’s position. Rights to appeal to the Social Security Appeals Tribunal were also taken away. There is no forum within Australia that will hear her concerns.
My father’s generation believed in human rights as a key to social change. They began the modern land rights movement and began working within international human rights structures to make the changes they knew were necessary to maintain the dignity of Aboriginal people and to alter the playing field to ensure real change. They wanted Aboriginal people to be doctors and lawyers and accountants and nurses and welfare workers and judges so that they could improve the lives not just for their own families but for others within the community.
I might look middle class and assimilated to outsiders but my father and his generation did not want me and my peers growing up to be like white Australians. It was important to him that I knew my culture, my place in the world, that I understood the cultural values of reciprocity, inter-relatedness to the environment, obligation to country, and respect for Elders. He wanted me to know my totems and my dreamings. He knew that without this, I would not be complete.
My education, my success and my ability to be articulate are the result of the determination of the Aboriginal people generations before me. They did not want to surrender their Aboriginality to gain equality with non-Aboriginal people. They saw a great injustice in being treated as inferior and being denied basic rights to health, housing, education and employment. But they also wanted to protect their identity and culture, to keep Aboriginality strong. They believed that this vision could be the legacy of an improved human rights framework for Aboriginal people.
Research in Australia and in Indigenous communities in North America shows consistently that the best way to lessen the disparity between Indigenous and non-Indigenous people is to include Indigenous people in the development of policy and the design and delivery of programs into their communities.
Apart from sounding like common sense, the research shows that this engagement assists with ensuring the appropriateness and effectiveness of those policies and programs and ensures community engagement with them therefore better ensuring their success.
This actually requires a commitment to something that policy makers often overlook: the need to invest in human capital. If participation by Indigenous people is a central factor in creating better policy, program and service delivery outcomes, there needs to be more to build up the capacity for that kind of engagement. This would include:
- rebuilding of an interface between government and the Aboriginal community through representative structures so that governments can more effectively consult with and work with Aboriginal people;
- focusing on the provision of training and education in ways that improve the capacity of Aboriginal communities. This means moving away from simple solutions of simply removing children into boarding schools and instead looks at a range of strategies that build the skill sets and capacities of adults as well as younger people who need to retain contact with their families if they do leave their communities for better schooling opportunities; and
- looking at flexible employment arrangements that take into account that in many Indigenous communities there is no viable job market or there are barriers to entering the workforce. Such schemes can assist with the provision of services and infrastructure in the community at the same time as they build capacity and skills within the community itself.
Indigenous policy is always targeted at intervention, at emergency. It rarely seeks to look at the underlying issues. Addressing disadvantage requires long term solutions, not just interventions. Rather than always reacting to a crisis, a long term sustained approach requires addressing the underlying causes of disadvantage.
This means resourcing adequate standards of essential services, adequate provision of infrastructure and investment in human capital so that communities are developing the capacity to deal with their own issues and problems and have the skill sets necessary to ensure their own well-being.
Whatever the perceptions of the electorate, the fact is that there is not enough money spent on Aboriginal housing, education and health. The pot is too small and no government will fix the problems while all they do is engage in trying to redirect the scarce resources to one pressing need at the expense of others.
The world we live in now is very different to the one that the framers of our constitution imagined. Aboriginal people were not a dying race. We were not inferior. Australia did become a home to many races.
Since the time that our constitution was drafted, every other Commonwealth country has modernised its legal system to incorporate our contemporary understanding of human rights through a Bill of Rights.
Legislative bills of rights also offer a rights framework. They require public servants to ensure that the legislation they draft is compliant with the rights in the human rights legislation. They also require parliament to indicate that legislation is compliant with those same standards and, if not, they need to indicate in what way it is not and to justify why it is not.
Both of these processes require policy makers and legislators to think about human rights in their decision-making processes. And while the rights in legislation can be over-ridden, there is greater transparency and accountability by government to the community about when and why rights are infringed.
In these ways, Australia would be enriched if there was a national Charter or Bill of Rights that required this level of scrutiny and accountability when public servants draft legislation and when parliaments pass them into law. In addition, it would be a positive step towards the better protection of Indigenous rights in this country.
There is one way to overcome the concerns that Aboriginal people hold about the easy suspension of human rights. This concern stems in no small part from the fact that the only three times the Racial Discrimination Act has been suspended were:
- as part of the compulsory welfare quarantining and compulsory acquisition of land that were part of the Northern Territory Intervention;
- as part of the Native Title Amendments post-Wik; and
- in the Hindmarsh Island Bridge dispute when heritage protection laws were also prevented from applying to the area in dispute.
Each time the Racial Discrimination Act has been suspended it has been to prevent the protection of Indigenous people from discrimination, and arguably at the times when they needed those protections the most.
Such circumstance is a reminder of the way in which the framers of our constitution decided to give parliament unfettered power in relation to deciding issues of rights and also intended to create a legal system that could pass racially discriminatory legislation. The immigration acts that entrenched the White Australia policy were the first legislation passed by the new Australian parliament and were testament to such an agenda.
So the issue of constitutional reform must still remain part of the rights agenda whether there is a bill of rights or not. And while we could look to the Canadian constitution for inspiration on how to entrench the protection of Indigenous rights into our constitution, there is perhaps a more inclusive and strategic approach. Just three rights entrenched in our constitution would substantially improve our rights framework:
- The right to be free from racial discrimination;
- The right to due process before the law; and
- The right to equality before the law.
There is one final area where improvement of the rights framework is possible. Australia recently endorsed the Declaration on the Rights of Indigenous People. While policies like the Northern Territory Intervention are a constant reminder that the Declaration is not binding, it does give a set of benchmarks to governments that assist in pointing to acceptable standards of protection of Indigenous rights.
Even if all of these changes were achieved, it would not take the issue of a treaty with Aboriginal people off the table.
African American writer Toni Morrison once said that, “the function of freedom is to free someone else.” Those words resonate deeply with me. As an Aboriginal person who is part of the emerging middle class within my own community and who understands the struggle of the generations before me to gain better rights to education and health and equal access, it sums up the obligation to fight for those less fortunate than ourselves.
Larissa Behrendt is Professor of Law & Indigenous Studies at the University of Technology, Sydney.