The lack of constitutional recognition of First Nations Peoples

A statement at the 17th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

I make this statement as Australia's Aboriginal and Torres Strait Islander Social Justice Commissioner, on behalf of the Australian Human Rights Commission, Australia's National Human Rights Institution.

I acknowledge the work of the Expert Mechanism and those who have contributed to this important study.

Madam Chair,

On 14 October 2023, Australia held a national referendum to recognise Australia's First Nations peoples in its constitution, including the establishment of a Voice to Parliament that would enable First Nations participation in decision-making that affects them.

While the majority of First Nations peoples – and approximately 6 million non-Indigenous allies – supported a constitutionally enshrined Voice, the public debate was marred by racist discourse, and a successful campaign of mis- and disinformation, and the majority of Australians voted against it.

Consequently, in Australia there is no constitutional recognition of First Nations Peoples, and no legislative commitment to comply with human rights standards, to implement the Declaration on the Rights of Indigenous Peoples [1], or to facilitate Indigenous participation in decisions that affect them.

Further, in the absence of a National Human Rights Act [2], or arrangements that would embed the Declaration on the Rights of Indigenous Peoples into legislation or policy, the rights and interests of First Nations Australians are regularly compromised by national and local governments.

For example:

• the destruction of the 46,000-year-old cultural heritage site at Juukan Gorge by Rio Tinto, has left cultural heritage legislative protections across the country in disarray.
• the lack of national standards concerning the rights of our children, including legislative or policy guidance on the age of criminal responsibility, resulting in human rights breaches such as detaining children in police watchhouses or holding them on remand for extended periods without access to education, health supports, or rehabilitation.
• And despite having a Racial Discrimination Act in place in Australia, systemic, structural, and overt racism is commonplace for First Nations peoples and has risen exponentially since the 2023 Voice Referendum.

And finally, while governments support First Nations voices in decision-making through Advisory or Expert Committee structures, including jurisdictional processes to progress truth and treaty arrangements, this cannot be a substitute for State responsibility to protect First Nations rights.

The absence of bipartisanship and nationally agreed standards enables State ambiguity on their responsibilities to protect the rights of First Nations peoples.

Recommendations:

As such, we endorse the Expert Mechanism Advice No.17 (2024), and we recommend that the Expert Mechanism on the Rights of Indigenous Peoples:

• continues to monitor and follow up with States regarding their obligations under Article 38 of the UN Declaration on the Rights of Indigenous Peoples.
• encourages the Human Rights Council to pursue compliance with Article 38 of the Declaration as a standing agenda item for its annual half-day panel discussion on the rights of Indigenous Peoples.

Thank you.

[1] See Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission to the Senate Legislative and Constitutional Affairs Committee, 22 June 2022, Submission 53, at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/UNDRIP/Submissions (accessed 4 July 2024); and Parliament of Australia, [1] See Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission to the Senate Legislative and Constitutional Affairs Committee, 22 June 2022, Submission 53, at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/UNDRIP/Submissions (accessed 4 July 2024); and Parliament of Australia, See Australian Human Rights Commission, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission to the Senate Legislative and Constitutional Affairs Committee, Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Submission to the Senate Legislative and Constitutional Affairs Committee, 22 June 2022, Submission 53, at: 22 June 2022, Submission 53, at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/UNDRIP/Submissions https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/UNDRIP/Submissions

[2] The Australian Human Rights Commission has proposed a national human rights framework that would provide an effective system of human rights protection in Australia including a proposal for a statutory Human Rights Act. After an extensive inquiry into the Commission's proposal, in May 2024, the Parliamentary Joint Committee on Human Rights provided 17 recommendations including that the Australian government introduce legislation to establish an Australian Human Rights Act, and the Commission's recommendations concerning a human rights framework in Free and Equal – A Human Rights Act for Australia (except a recommendation regarding discrimination law reform). [2] The Australian Human Rights Commission has proposed a national human rights framework that would provide an effective system of human rights protection in Australia including a proposal for a statutory Human Rights Act. After an extensive inquiry into the Commission's proposal, in May 2024, the Parliamentary Joint Committee on Human Rights provided 17 recommendations including that the Australian government introduce legislation to establish an Australian Human Rights Act, and the Commission's recommendations concerning a human rights framework in Free and Equal – A Human Rights Act for Australia (except a recommendation regarding discrimination law reform). The Australian Human Rights Commission has proposed a national human rights framework that would provide an effective system of human rights protection in Australia including a proposal for a statutory Human Rights Act. After an extensive inquiry into the Commission's proposal, in May 2024, the Parliamentary Joint Committee on Human Rights provided 17 recommendations including that the Australian government introduce legislation to establish an Australian Human Rights Act, and the Commission's recommendations concerning a human rights framework in Free and Equal – A Human Rights Act for Australia Free and Equal – A Human Rights Act for Australia (except a recommendation regarding discrimination law reform). (except a recommendation regarding discrimination law reform).

Katie Kiss

Aboriginal and Torres Strait Islander Social Justice Commissioner

Katie Kiss, a proud Kaanju and Birri/Widi woman, leads as Social Justice Commissioner, advocating for First Nations rights and truth-telling in Australia.

Learn more about Katie Kiss