The practical power of human
Queensland University of Technology Faculty of Law Public
Lecture Series 2010
Aboriginal and Torres Strait Islander Social
Australian Human Rights Commission
Wednesday 19 May 2010
Introduction and acknowledgements
I would like to begin by acknowledging the traditional owners of the land we
are meeting on tonight. I pay my respects to their elders past and present.
I am of the Gangulu from the Dawson Valley in Central Queensland and when I
speak to my Elders, they ask me to pass on my salutations to the traditional
owners of the land I visit for their continued fight for their country and their
I’d like to thank the Honourable Michael Lavarch, Executive Dean of the
Faculty of Law at Queensland University of Technology and his staff for their
kind invitation to speak on tonight as part of their Public Lecture Series.
It is an honour to be invited to speak on this occasion of the announcement
of the recipients of the McCullough Robertson Support Fund for Indigenous Law
Students for 2010.
I am similarly honoured to follow my predecessor, Tom Calma, who presented
the inaugural McCullough Robertson Support Fund scholarship last year. I want to
commend McCullough Robertson for their continued support for better education
outcomes for Aboriginal and Torres Strait Islanders through this and other
The scholarship is run with QUT and the Oodgeroo Unit and will contribute to
the development of our future leaders. This is important as Aboriginal and
Torres Strait Islander people are underrepresented in the upper echelons of the
legal sector. However, things are slowly changing.
More and more Aboriginal and Torres Strait Islander people are obtaining
legal qualifications and becoming lawyers. The idea of an Indigenous lawyer was
almost a foreign concept when I was first beginning my career in Indigenous
Affairs. It is through programs like this that will foster the next generation
of Aboriginal and Torres Strait Islander leaders and I feel proud to be here
celebrating the achievements of Kaava Watson and Christian Garling the
One of the greatest thrills of being in a senior position is watching our
young people develop into leadership positions.
I remember working in Canberra in 1995 when three young Indigenous women
commenced their legal cadetship in ATSIC. Whilst I can never claim to be an
overwhelming influence in their careers, I have nonetheless kept an eye on their
progress over the years since that day I met them in the MLC Tower.
Each have gone on to carve out their own place. Heron Loban now lectures at
James Cook University. Kerryn Ruska, a great niece of Oodgeroo is a practicing
barrister here in Brisbane and lectures at Griffith University.
The third pursued a career as a human rights activist and academic. About
three weeks ago in New York I was honoured to be with Megan Davis when she was
elected to the United Nations Permanent Forum on Indigenous Issues as nominated
by the Australian Government.
Tonight as I begin I want to acknowledge Heron, Kerryn and Megan, three young
Indigenous women who do us proud.
How fitting it is then that the Scholarship Fund is run with the help of the
Oodgeroo Unit here at QUT. Oodgeroo Noonuccal or Kath Walker remains a beacon of
hope for Aboriginal and Torres Strait Islander peoples. She is an inspiration in
our continued fight for justice and to see our rights fully realised. In talking
tonight want to quote from Oodgeroo’s poem the ‘Song of
Look up, my people,
The dawn is breaking
The world is waking
To a bright new day
When none defame us
No restriction tame us
Nor colour shame us
Nor sneer dismay.
Now brood no more
On the years behind you
The hope assigned you
Shall the past replace
When a juster justice
Grown wise and stronger
Points the bone no longer
At a darker race...
New rights will greet us
New mateship meet us
And joy complete us
In our new Dreamtime
Practical power of rights
It is in the hope of a dawn breaking and the world waking to a bright new day
that I want to talk about the practical power of human rights. It is in the
exercise of this practical power that I believe Aboriginal and Torres Strait
Islander peoples can address the multiple and trans-generational layers of
disadvantage and trauma confronting us in our communities.
I have worked in Indigenous affairs for all of my professional life and when
I was approached about this position as Commissioner I was hesitant at first
because I didn’t see myself as a human rights activist. But as one of my
closest colleagues pointed out, you can’t work in Indigenous affairs
without being a human rights activist. Working on Indigenous issues means that
you are working with human rights day in and day out.
All of the issues you deal with in Indigenous affairs; effective engagement,
poverty, education, health, protection of culture and languages, incarceration
rates, protection of women and children, all of these issues are human rights
Tonight I want to talk about how human rights standards outline the practical
framework, or roadmap if you like, that that offers a pathway to what Oodgeroo
called a ‘more juster justice’.
Unfortunately in Australia the practical power of rights in creating a fair
and just society is often misunderstood. Frequently debates on human rights are
sidetracked by dichotomies that distract us from, and dilutes the real work and
power of human rights.
We have seen this in the recent debate on a possible Human Rights Act in
Australia. The National Human Rights Consultation Report recommended a Human
Rights Act, based on strong public
support. The Australian Government
response was to develop a Human Rights
Framework, which brings with it
some welcome aspects, notably increased parliamentary scrutiny and human rights
education. However, the Government has decided against a Human Rights Act
because it wanted a response that ‘unites rather than divides our
One of the main arguments driving this division was that as a liberal
democracy our human rights are already adequately protected in
Australia. This is a point I will
address later, but democratic principles are not protecting Aboriginal and
Torres Strait Islander’s from disadvantage and discrimination.
So I want to return to the practical power of human rights, which at its
core, is as simple as creating a fair society where all individuals and groups
are free, equal and empowered. However, there are two dichotomies which detract
from practical power of human rights that I will address tonight:
- the juxtaposition between human rights and action; and
- that rights can be pitted off against each other.
will suggest that the standards contained in the United Nations Declaration on the Rights of Indigenous Peoples (Declaration) provide
vehicle by which we might put the practical power of rights into action.
Rights vs practical action
The first dichotomy that I want to deal with is the juxtaposition between
human rights and practical action.
On the one hand it is said human rights are seen as merely symbolic having no
real impact on the daily lives of Aboriginal and Torres Strait Islander peoples.
On the other hand is the idea of practical reconciliation where we are
reconciled by action alone.
It is said that the focus on human rights detracts attention from the main
game, namely the need for practical action to address disadvantage.
This approach was most evident in the former Australian Government’s
focus on ‘practical measures’ which placed the rights discourse at
the margins. However, these practical measures did not result in better outcomes
for Aboriginal and Torres Strait Islander peoples.
I will argue that actions without a solid foundation based on rights will
always fail in the longer term because actions and human rights are not strange
bedfellows, rather, they are inextricably linked.
They are not abstract concepts that exist in documents such as treaties,
conventions and declarations alone. Rights are only rights when they are
exercised. Therefore, the practical actions and outcomes needed to address
disadvantage in real terms are the realisation of human rights.
Human rights provide governments’ with a set of minimum legal standards
which if applied equally to all people establish a framework for a society to
foster dignity and equality of all citizens.
Look at it this way, no one travelling by car from up here in Brisbane across
to say Broome in Western Australia would refer to a road map as being symbolic.
That would be illogical. Human rights are the same. They are the road map, with
signposts like effective engagement, empowerment, protection of culture, that
can direct us from the current status quo to the destination of a better, fairer
and more equitable society.
Why do we not see human rights as a road map in Australia?
Next I want to look at why we do not always see human rights as a road map.
The idea of human rights as a road map to a better societal destination is
easily lost in Australia, because at one level we generally have a pretty good
human rights record.
International NGO Freedom House through its publication Freedom in the
World provides one of the most comprehensive comparative assessments of the
status of political rights and civil liberties in all the countries of the
world. Freedom House scored Australia with the highest possible score for the
attainment of political rights and civil
liberties. For many Australians it
is simply a given that these rights are realised. For these people a map better
and fairer society is largely superfluous.
In general, Australians are not subjected to cruel and inhumane treatment, we
have an independent judicial system, we have freedom of speech and a free press.
All of these things are human rights, all of them when realised help promote a
functioning and stable democratic society. Indeed in nations where these rights
are not readily realised, it is their absence that inhibits a functioning and
For many Australians, the realisation of economic, social and cultural rights
is also a given. We have functioning, although not perfect, health and social
security systems; we have protections against discrimination in employment. We
have access to education and housing services. Again it is the realisation of
these rights that makes Australia a successful and prospering nation.
However, it is instances when our rights are compromised that we might seek
recourse to these rights to rectify the particular situation. For example, some
might ask themselves why Australia is looking at signing up to the Optional
Protocol on the Convention Against Torture, while Mr Ward’s family in
Western Australia might be asking why we haven’t signed up already.
Why do Aboriginal and Torres Strait Islander’s need a road
So why do we need this road map if our rights are so well protected? As I
alluded to above whilst the human rights of many in Australia are realised on a
daily basis, the human rights of marginalised and minority groups are
vulnerable. This is particularly true for Aboriginal and Torres Strait
One of the major differences between the wider Australian population and
Aboriginal and Torres Strait Islander communities is their ability to realise
their human rights and fundamental freedoms.
Let me provide a few examples. We were not counted as citizens of Australia
until 1967. We do not enjoy the same standards of education. Our children were
removed in the Stolen Generation. And today as a result of the Northern
Territory Intervention there are 73 communities where the very instrument to
prevent race discrimination, the Racial Discrimination Act 1975 (Cth) has
been suspended. That means in these 73 communities’ people have only
limited protection against racial discrimination for the sole reason that they
As you can see when it comes to vulnerability of human rights of Aboriginal
and Torres Strait Islanders are the prime example in this country. That is why
for many of Aboriginal and Torres Strait Islanders there is a crying need for
that road map. For us human rights are not taken for granted. Professor Mick
Dodson puts it this way:
The existence of human rights standards is not the source of Indigenous
disadvantage. Human rights do not dispossess Indigenous peoples, they do not
marginalise them, they do not cause their poverty, and they do not cause gaps in
life expectancy and life outcomes. It is the denial of rights that is a large
contributor to these things. The value of human rights is not in their
existence; it is in their
One area that I am passionate about is health. Poor health outcomes are
decimating our communities across the length and breadth of Australia. It is an
uncontested fact to say that Aboriginal and Torres Strait Islander peoples do
not have the same health outcomes as non-Indigenous Australians. This is a human
Rights in action – the Closing the Gap campaign.
Addressing health from a human rights perspective is a clear example of how
practical human rights can be. Framing health in the language of human rights
can create the necessary political momentum that leads to action. The Closing
the Gap campaign is a clear example of what I am talking about.
In 2005 my predecessor Tom Calma in his Social Justice Report called
on Australian governments to commit to achieving health and life expectation
equality between our people and non-Indigenous Australians within a generation.
This was based on our right to health and right to enjoy the same opportunities
to be as healthy as other
That Report characterised Indigenous health inequality as a major human
rights issue, and called for a human rights based approach to the Indigenous
And as a rights issue, Indigenous health inequality was largely framed as an
opportunity gap – that Indigenous peoples in Australia did not enjoy the
same opportunities to be as healthy as other Australians. That is, to see
doctors when they needed them, eat fresh food, live in healthy housing and so
on. And this is where human rights play such an important role in providing a
sound intellectual and legal foundation for an approach to Indigenous
Article 12 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) recognises ‘the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health’.
The right to health is essentially the right to opportunities to be healthy:
it includes the enjoyment of a variety of facilities, goods, services and
conditions necessary for the realisation of the highest attainable standard of
health. It is not to be understood as a right to be healthy (which is
something that cannot be guaranteed solely by governments).
We have a human right to the same opportunities to be healthy as other
This focus on ensuring equality of opportunity is reflected in the way the
right to health is understood, largely as set out in General Comment 14 of the
Committee on Economic, Social and Cultural
Thus the right to health contains the following interrelated and essential
- Availability. Functioning public health and health-care
facilities, goods and services, as well as programs, have to be available in
sufficient quantity within a country.
- Acceptability. All health facilities, goods and services must
be respectful of medical ethics as well as respectful of the culture of
individuals, minorities, peoples and communities, sensitive to gender and
life-cycle requirements, as well as being designed to respect confidentiality
and improve the health status of those concerned.
- Accessibility. Health facilities, goods and services have to
be accessible to everyone without discrimination. Accessibility has four
1. Non-discrimination: health facilities, goods and services must be
accessible to all, in law and in fact, without discrimination.
2. Physical accessibility: health facilities, goods and services must be
within safe physical reach for all sections of the population, This also implies
that medical services and underlying determinants of health, such as safe and
potable water and adequate sanitation facilities, are within safe physical
reach, including in rural areas.
3. Economic accessibility (affordability): health facilities, goods and
services must be affordable for all. Payment for health-care services, as well
as services related to the underlying determinants of health, has to be based on
the principle of equity, ensuring that these services, whether privately or
publicly provided, are affordable for all, including socially disadvantaged
4. Information accessibility: includes the right to seek, receive and
impart information and ideas concerning health issues.
- Quality. As well as being culturally acceptable, health
facilities, goods and services must also be scientifically and medically
appropriate and of good quality.
And I’m sure as I’ve
set out these elements of the right to health in relation to health services,
you can see immediately how the right itself is of enormous assistance to
Indigenous Australians; recognising the importance of culturally tailored
services, for example, in ensuring that we are able to access health
The right to health, indeed economic, social and cultural rights overall,
also include guidelines as to how states are to ensure rights – like to
health – are respected in a context where, historically, they have not
Thus Governments have immediate obligations in relation to the right to
health. In particular, the obligation to take deliberate, concrete and targeted
steps towards the full realisation of the right to health - known as the
In 2008 the Rudd Government, the federal opposition, the main Indigenous and
non-Indigenous peak health bodies and the Social Justice Commissioner all signed
the ‘Close the Gap Statement of Intent’ which committed all parties
to achieving health equality by 2030, supported by a partnership between
Australian governments and Aboriginal and Torres Strait Islander peoples and
This was the first time a government in Australia has made a commitment to
achieve health equality for Aboriginal and Torres Strait Islander peoples within
a specified time frame. The Prime Minister has also committed to reporting to
Parliament on his government’s progress against these commitments each
The Close the Gap Campaign is a great example how a human rights based
approach to a problem can influence Government policy. And how a rights agenda
leads to practical action designed to achieve practical outcomes. It is clearly
an indication of the practical power of human
Using the language of human rights can lead to change
So what I am saying is the language of human rights can lead to real action
producing real change. Looking beyond the health arena, the Overcoming
Disadvantage Report of the Productivity Commissioner outlines the range of
disadvantage confronting Aboriginal and Torres Strait Islander peoples and
communities. This disadvantage
carries across the entire gamut of socio-economic indicators. Each of these
indicia reveals an instance of the non-realisation of human rights.
This disadvantage cannot be divorced from human rights. Indeed, I believe it
will only be by articulating these issues through the language of human rights
that we will see these issues practically
addressed. In this regard, human
rights can be viewed as the platform for lobby groups to provide a clear policy
voice for the unheard. Logically
following on from this I believe that human rights standards represent the
best-practice guidelines for dealing with disadvantaged communities.
Rights vs rights
Let me now move to the other false dichotomy I want to deal with. That is the
idea that rights can be pitted against each other, one right favoured over
another. Of particular concern is the juxtaposition of the right of protection
for women and children being pitted against wider rights of Aboriginal and
Torres Strait Islander peoples in general, such as being free from
discrimination. Again, I suggest that this view is misguided.
The Northern Territory Intervention
Probably the most visible manifestation of this is the NT Intervention. Much
has been written about the NT Intervention, its background, its content and its
controversies and I do not want to repeat that tonight.
I do however want to discuss how the valuing of one right over another leads
to poor policy outcomes. It is this view that has led to support for the more
controversial aspects of the NT Intervention, namely the suspension of the Racial Discrimination Act. I am not doubting the bona fides of the
intentions at play here. However, I do believe the outcome of this dichotomy is
dangerous. It creates enemies between what is indivisible. One human right, the
protection of women and children is championed over the protection of basic
rights to dignity and the freedom from discrimination. It is playing rights off
against each other. This leads to a ‘with us, or against us’
approach. And the previous government was particularly adept at using this
argument to capture the moral high ground. That is if you don’t support
our action in the Northern Territory, you must support the abuse of women and
I believe that this dichotomy builds policies to fail. It leads to riding
rough over adequate consultation, effective participation in decision-making and
proper engagement of Aboriginal and Torres Strait Islander peoples. This has
been highlighted by both human rights experts like the UN Special Rapporteur on
Indigenous peoples rights and in the report reviewing the
Intervention as the crucial link missing from the Intervention for it to meets its policy goals.
Rights are universal and indivisible
I now what to talk about how a human rights paradigm offers a different way
to look at these difficult polices issues. All governments have human rights
obligations to protect women and children from violence and abuse. However,
those obligations should be achieved without trampling on other rights. To do
this, it needs to be recognised that human rights are universal and indivisible.
The Social Justice Report 2006 described this point as thus:
In simple terms universality means that (rights) apply to everyone,
everywhere, equally and regardless of circumstance – they are intended to
reflect the essence of humanity. They are the standards of treatment that all
individuals and groups, irrespective of their racial or ethnic origins, should
receive for the simple reason that we are all members of the human family. They
are not contingent upon any factor or characteristic being met – you do
not have to ‘earn’ rights or have to be ‘deserving’ for
them to be protected.
And the indivisibility of human rights means that all rights -
economic, social, cultural, civil and political rights – are of equal
importance. There is no hierarchy or priority for the protection or enjoyment of
rights. Similarly, this means that all rights are to be applied consistently
– you cannot claim to be performing an action in exercise of your
rights if it causes harm or breaches the rights of another
Simply put there is no hierarchy of human rights and all rights are
interconnected. For example people talk about the right to drink alcohol. I can
find no such right per se but I think people get this confused with the right to
equal access to goods and services. However, if in accessing the equal right to
goods and services people do consume alcohol, then the exercise of this right
should not compromise the rights of others, for example the right of Aboriginal
and Torres Strait Islander women and children to be safe and secure.
How to deal with possible conflicts
Briefly I want to outline how to deal with possible conflicting rights. A
human rights, and dare I say ‘best-practice’ solution seeks to
ensure policies are compatible with all rights. To do this I will look an
apparent clash of different human rights standards, namely cultural rights and
A minority of people have tried to couch sexual violence against women as
being part of Aboriginal customary law. This is wrong. I am passionate about
this and cannot repudiate the view that customary law justifies sexual violence
strongly enough. Violence against Aboriginal and Torres Strait Islander women
and children is wrong there is no justification for it.
A human rights framework recognises that across the world some traditional,
religious and cultural practices have been used to justify the subordination of
women and violations of their human rights. But governments are required to
ensure that certain human rights, such as cultural rights, are not exercised in
a manner that violates other fundamental rights, like:
- the right to life,
- the right to life free from torture or inhuman and degrading treatment,
- the requirement that men and women provide their free and informed consent
when entering into marriage.
That is why Aboriginal customary law must be applied consistently with other human rights standards. At no
stage does customary law override the rights of women and children to be safe
and to live free from violence.
Human rights offer a holistic platform to address
So, what I am getting at? Let me outline what I have said, and I believe this
is crucial to addressing the multiple layers of disadvantage in Aboriginal and
Torres Strait Islander communities:
- If we accept premise A that human rights provide a practical road map for
governments to provide a framework for a better society
- And we accept premise B that all human rights are interrelated and
- Then governments should develop truly holistic and integrated approaches to
addressing disadvantage in Aboriginal and Torres Strait Islander
This is the practical power of human rights. How can we
put this into action you might ask?
Declaration on the Rights of Indigenous Peoples
I suggest we have to look to the standards contained in the UN Declaration
on the Rights of Indigenous Peoples, the instrument that contains the
minimum standards for the survival, dignity and well-being of indigenous
peoples. And in essence these
standards are about creating better engagement between States and Indigenous
This Declaration took over 20 years to develop with both States and
Indigenous peoples being involved.
When it was adopted in 2007 an overwhelming number of States voted in favour
with only four voting against. These four included Canada, New Zealand, the
United States and Australia.
In 2009, Australia reversed its position. Recently, New Zealand also
announced its support for the Declaration. Canada and the USA have indicated
they will be looking to do the same.
Although only a declaration and therefore aspirational, this instrument
is one of the most significant milestones in the protection of
indigenous human rights. In one place it catalogues the human rights outlined in
other binding international instruments as they apply to indigenous peoples. In
that sense it is sourced from binding international law like the Convention
on the Elimination of All Forms of Racial Discrimination. The Declaration
should inform how these obligations apply to indigenous
This echoes Oodgeroo’s dream of a new dawn. Any reading of the text of
the Declaration makes it clear that it offers a programmatic approach to dealing
with indigenous disadvantage. The Declaration should be seen as a remedial instrument, designed to rectify a
history of failings when it comes to protecting indigenous peoples human rights.
The minimum standards for survival, dignity and well-being
Article 43 is a key provision in the Declaration and it states:
The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world.
It is easy to miss the significance of this statement. However, when it is
remembered that the Declaration was overwhelmingly adopted in the General
Assembly of the United Nations, its importance becomes clear. The General
Assembly is the home of Nation-States and their governments, not of academics
nor human rights experts. So it was the governments of the world who stood up
together in adopting this Declaration and said the rights in the Declaration are
a road map not only for more equitable outcomes for indigenous peoples but for
their very ‘survival, dignity and well-being’.
The key is re-setting the relationship
In following this road map, it is crucial to grasp another central tenant of
the Declaration, namely the importance of re-setting relationships between
indigenous peoples and the broader community but more particularly governments.
In other words, better engagement. The Declaration in affirming indigenous
peoples collective rights to self-determination and decision-making powers
through the principle of free, prior and informed consent, is not an instrument
of division, rather an instrument to create the institutional structures,
arrangements and process needed for indigenous peoples to be able to effectively
engage in a relationship with Governments based on mutual respect. Any doubt to
this is made clear in the preamble which states the General Assembly is:
Convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between the
State and indigenous
This acknowledgement echoes the hope of Oodgeroo ‘new rights will great
us, new mates will meet us’. I believe that it is through a reform agenda
borne out of and imbedded in the normative standards of human rights that we can
finally embrace a true and genuine ‘mateship’ between Aboriginal and
Torres Strait Islander peoples and the broader Australian community. It is
through agreement making as guided by the Declaration that we can achieve true
and lasting reconciliation in Australia.
Now is the time for action on the Declaration
I believe that the current political climate, including the reversal of
Australia’s position on the Declaration and the commitment to a new
partnership, is converging with the normative developments in international
human rights law and it is the Declaration that will provide the guidance to
achieve government policy goals. The Australian Government has indicated, most
poignantly through the National Apology that it seeks in good faith a re-setting
of the relationship with Aboriginal and Torres Strait Islander peoples based on
partnership and mutual respect.
The next step for the Australian Government is to work with Aboriginal and
Torres Strait Islander peoples to develop a coordinated approach to achieving
the ends of the Declaration, as is required by article 38 of the Declaration.
I believe the time has now come, in the spirit of good faith and the
Australian Government’s stated commitment to re-setting the relationship
with Aboriginal and Torres Strait Islander peoples that we begin down the path
of the Declaration. We take our first steps on this human rights roadmap to
I want to conclude with the words of Dr Dalee Sambo Dorough, an indigenous
woman from Alaska who like Megan Davis, has recently been appointed to United
Nations Permanent Forum on Indigenous Issues. She was heavily involved in
drafting and negotiating the Declaration. In a recent publication she eloquently
sends out the true message and practical power of the Declaration:
Imagine the indigenous world as it was, for a moment [before colonisation].
Then think of the conditions that indigenous peoples currently face:
encroachment, colonization, subjugation, exploitation, domination, leaving many
of us in disarray. Now read the Declaration through from beginning to the end
and dream of a world that “might someday
Thank you ladies and gentlemen
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Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2006, Human Rights and Equal Opportunity
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 See Committee on the
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Human Rights and Indigenous Peoples (Aspen Publishers, Austin,
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 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 171
(The Hon Kevin Rudd MP, Prime
 D. Sambo Dorough,
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Brown, The Dream Book: First Come First Dream (Hopscotch Press, Berkeley,