The Rights of First Nations People (VCE SSCE Legal Studies): Revision Notes
The Rights of First Nations People
Introduction
First Nations Australians are the first peoples of Australia, having lived on the continent for at least 65,000 years before British colonisation in the 1700s. The term 'First Nations people' recognises Aboriginal and Torres Strait Islander people as the sovereign people of this land. Other acceptable terms include 'First Peoples' and 'Koori' (describing Aboriginal people of south-east Australia).
The terminology used to describe Aboriginal and Torres Strait Islander peoples has evolved significantly over time. 'First Nations people' is a contemporary term that emphasises sovereignty and recognises these peoples as the original inhabitants and traditional owners of the land. It's important to be respectful and use the terminology preferred by the community you're referring to.
Despite some legal recognition, the human rights of First Nations people are not fully protected or observed in Australia. This is evident from significant disparities in living standards and quality of life.
Stark Disparities in Living Standards:
First Nations Australians experience severe disadvantage compared to non-Indigenous Australians:
- Life expectancy approximately 9-10 years lower than non-Indigenous people
- 10 times more likely to be imprisoned
- 3 times more likely to experience homelessness
- Lower standards of physical and mental health, employment, and education
These statistics demonstrate that despite legal recognition, the human rights of First Nations people are not being adequately protected in practice.
The nature and development of the right
International law protection
Australia was one of the original countries to support the Universal Declaration of Human Rights (1948) (UDHR), committing to respect and promote basic human rights and freedoms. The UDHR recognises several rights that broadly protect Indigenous peoples, including the right to:
- Be equal before the law and entitled to equal protection against discrimination based on race, colour, sex, language, religion, birth or other status
- Not be subjected to torture or cruel, inhuman or degrading treatment or punishment
- A nationality and not to be arbitrarily deprived of it
- Own property and not to be arbitrarily deprived of it
Specific protections for Indigenous peoples
Two key international instruments provide more specific protection for Indigenous peoples:
1. International Convention on the Elimination of All Forms of Racial Discrimination (1969)
This convention targets racial discrimination specifically and provides targeted protections against discriminatory treatment based on race or ethnicity.
2. United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP)
The Significance of UNDRIP
UNDRIP is the most significant international declaration on Indigenous rights because it expands upon the UDHR with specific protections for Indigenous peoples. Unlike the UDHR, which provides broad human rights protections, UNDRIP addresses the unique rights and challenges faced by Indigenous communities worldwide.
Key features of UNDRIP include:
- Recognition of the right to self-determination
- Right to self-government in matters relating to internal and local affairs
- Protection from forced assimilation or destruction of culture
- Importantly, Indigenous people, including First Nations Australians, were involved in creating this declaration, ensuring their voices shaped the final document
Australia's international obligations
Despite supporting the UDHR, Australia was one of four countries (out of 158) that voted against the UNDRIP in 2007 and has not formally adopted it. Australia has been regularly criticised by international organisations, including the UN, for its treatment of First Nations Australians.
UN Criticism of Australia (2022)
In 2022, the UN Human Rights Committee criticised Australia for:
- Failing to address racism in the criminal justice system
- Overrepresentation of First Nations adults and children in prison
- Deaths in custody
- Failure to protect Torres Strait Islander peoples against climate change impacts
This international criticism highlights the gap between Australia's human rights commitments and the reality experienced by First Nations peoples.
The laws that apply
In Australia, the rights of First Nations people are protected to a varying and often limited extent through statute law and common law.
The Australian Constitution
The Australian Constitution does not specifically protect the human rights of First Nations people. This constitutional silence has significant implications for the protection and recognition of First Nations peoples' rights.
Constitutional Issues for First Nations People:
- No specific express rights for First Nations people
- First Nations people were not included in discussions or processes to establish the Constitution
- They were not recognised as traditional owners and custodians of the land
- The Constitution originally discriminated against First Nations people by preventing the Commonwealth Parliament from making laws for them and excluding them from the national census
The 1967 referendum successfully removed these discriminatory sections, supported by over 90% of Australian voters. This was a significant milestone led by campaigners including Faith Bandler.
The 1967 referendum was a turning point in Australian history. It demonstrated overwhelming public support for removing explicitly discriminatory provisions from the Constitution. However, while it removed discrimination, it did not add any positive protections or recognition for First Nations peoples.
Statute law protection
Australia does not have a single national charter of human rights. However, various Acts of Parliament provide some protection against racial discrimination.
Anti-discrimination laws
Key legislation making it unlawful to discriminate on the basis of race, colour, or national or ethnic origin includes:
- Racial Discrimination Act 1975 (Cth) - Commonwealth protection
- Equal Opportunity Act 2010 (Vic) - Victorian state protection
- Racial and Religious Tolerance Act 2001 (Vic) - bans behaviour encouraging hatred, contempt, revulsion or ridicule based on race and/or religion
Specific First Nations legislation
Native Title Act 1993 (Cth)
This Act recognises and protects the right of First Nations peoples to have native title over their traditional lands in certain, limited circumstances. It sets down basic principles and establishes a mechanism for determining native title claims.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
This Act allows the Australian Government to preserve and protect places, areas, and objects of particular significance to First Nations peoples if state and territory laws fail to do so.
Limitations of Native Title Legislation:
These laws have debatable effectiveness. For example:
- Many strict conditions must be met for native title to be granted
- The process for receiving compensation for compulsorily acquired native title is slow and complex
- The legislation provides protection only in "certain, limited circumstances"
This means that while the laws exist on paper, their practical application often falls short of providing comprehensive protection for First Nations peoples' land rights.
Victorian Charter of Human Rights
The Victorian Charter specifically acknowledges First Nations people in its preamble, recognising their "diverse spiritual, social, cultural and economic relationship with their traditional lands and waters."
Section 19 protects cultural rights and specifically recognises that First Nations peoples hold distinct cultural rights, including the right to:
- Enjoy their identity and culture, maintain and use their language, and maintain kinship ties
- Freely undertake cultural practices and access cultural institutions, ancestral lands, natural resources and traditional knowledge
Victoria is the only Australian jurisdiction with a Charter of Human Rights. While it provides important protections, including specific recognition of First Nations cultural rights, it only applies in Victoria and does not override other laws. Nevertheless, Section 19 represents significant statutory recognition of the unique cultural rights of First Nations peoples.
Common law protection
Courts have created common law rights through significant cases that recognise and protect First Nations peoples' rights. Unlike statute law which is made by Parliament, common law develops through judicial decisions and legal precedent.
The Mabo case
Mabo v Queensland is one of the most well-known and important cases establishing First Nations peoples' rights. The High Court made the historic decision to overrule the false common law principle that Australia was terra nullius (an 'empty land') when colonised by the British in 1788. This decision recognised land rights for First Nations peoples.
Understanding Terra Nullius
Terra nullius is a Latin term meaning 'empty'. It was a false common law principle used by the British to declare that Australia belonged to no one when they arrived in 1788. This legal fiction denied the existence and rights of First Nations peoples who had lived on the continent for tens of thousands of years. The Mabo decision finally overturned this unjust principle.
The Timber Creek case
In 2019, the High Court awarded the Ngaliwurru and Nungali peoples compensation for the loss of part of their land. This case is regarded as the most significant native title decision since Mabo.
Case Study: The Timber Creek Decision (2019)
Background:
- In 2009, the Ngaliwurru and Nungali peoples were recognised as native title holders of land in and around Timber Creek, Northern Territory
- Despite this recognition, the Northern Territory Government constructed roads and infrastructure, resulting in the loss of approximately 1.2 square kilometres of their land
- In 2011, they applied for compensation including spiritual and cultural loss as well as economic loss
Court Proceedings:
- The Federal Court initially awarded $3.3 million (including $1.3 million for spiritual and cultural loss)
- The governments challenged this ruling as excessive
- In 2019, the High Court ruled the $1.3 million for spiritual and cultural loss was appropriate but reduced other compensation to a total of $2.5 million
Significance: This decision further recognised the right of First Nations peoples to be compensated for land loss, including spiritual and cultural loss - not just economic loss. This acknowledgment that spiritual and cultural connection to land has monetary value was groundbreaking.
Possible reforms and conflicting attitudes
Changing attitudes
Recent years have seen a significant shift in non-Indigenous Australian attitudes regarding the need to better protect First Nations peoples' human rights. This has occurred as people become more aware of the extreme disadvantage, harm and trauma suffered by First Nations peoples due to dispossession and discrimination since British colonisation.
However, while there is greater acknowledgment of the need for improvement, many significant social, legal and political changes are still needed to address areas of disadvantage.
Self-determination
Self-determination is the right of a group or race of people to make decisions about their own lives according to their own view, values and beliefs. This includes the right to self-government in matters relating to their own internal and local affairs.
Current situation
Historically, First Nations peoples in Australia have not had decision-making control over issues directly affecting their lives. Australian governments still create most laws and policies for First Nations peoples without adequately consulting First Nations communities.
Real-World Example: Alice Springs Policies (2023)
In 2023, the Commonwealth Government implemented policies (including alcohol restrictions) in Alice Springs to address social issues like violence and property theft.
The Problem:
- First Nations groups and community leaders noted they were not adequately consulted
- They did not believe the policies addressed underlying causes
- Many viewed this as discrimination
What This Shows: This example illustrates how policies are still being imposed on First Nations communities without meaningful consultation or addressing root causes - directly contradicting the principle of self-determination.
Achieving self-determination
Self-determination could be achieved through:
- Returning land and control rights to First Nations peoples
- Restoring ability to control community services (health, education, housing, legal services)
- Creating a First Nations Voice to Parliament
The First Nations Voice to Parliament
The First Nations Voice would be an independent advisory body for First Nations people, chosen by and consisting of First Nations people, with authority to provide advice on laws, policies and matters affecting them.
Arguments for Enshrining it in the Constitution:
- Would make it a permanent body that cannot be abolished by Parliament
- Important because the past three First Nations representative bodies established through statute law were all abolished by subsequent governments
This demonstrates why constitutional protection is seen as necessary - to prevent future governments from simply abolishing the Voice when politically convenient.
Criticisms of the Voice:
- Some First Nations people don't believe it will resolve problems
- Some argue First Nations people should not need 'permission' from non-Indigenous Australians (96% of the population) to form an advisory body
- An advisory body providing non-binding recommendations is not the same as true self-determination under international law
These criticisms highlight that while the Voice may be a step forward, some view it as insufficient for achieving genuine self-determination.
Constitutional recognition
Another possible reform is to expressly recognise First Nations peoples as traditional owners and custodians of the land in the Australian Constitution. This can only be achieved through a successful referendum supported by a majority of Australian people.
Historical attempts
In 1999, a referendum to include the following statement in the Constitution's preamble failed:
"We the Australian people commit ourselves to this Constitution ... honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country."
The 1999 referendum failed to achieve the required support. However, attitudes have significantly changed over the past 25 years, increasing the likelihood a similar referendum would now succeed. This shift reflects growing awareness and acknowledgment of First Nations peoples' rights and history.
Current prospects
Attitudes have significantly changed over the past 25 years, increasing the likelihood a similar referendum would now succeed.
Arguments for constitutional recognition:
- Acknowledges historical exclusion of First Nations peoples since colonisation
- Depending on wording, could enshrine anti-discrimination principles in the Constitution
Criticisms:
- Some believe recognition is purely symbolic and won't result in tangible improvement in human rights
Addressing disadvantage in the criminal justice system
Australia has not formally adopted the UNDRIP and has been criticised by international organisations for inequality and disadvantage suffered by First Nations people in the criminal justice system. Human rights organisations like the Human Rights Law Centre have suggested reforms including:
Proposed Criminal Justice Reforms:
Changing discriminatory criminal laws that contribute to overrepresentation of First Nations people in prison, such as:
- Abolishing mandatory minimum sentencing laws
- Abolishing prison sentences for minor offending
- Increasing the age of criminal responsibility from 10 to at least 14 years
Other essential reforms:
- Independent investigations into First Nations deaths in custody (police custody, adult prisons, youth detention centres)
- Protection from inhumane treatment including abuse, torture and solitary confinement while in custody
- Investing in family violence prevention and legal services to ensure First Nations women who have survived family violence are not forced into the criminal justice system
Factors affecting reform
The success or failure of reforms depends on various political, legal, and social factors. Understanding these factors helps explain why some reforms succeed while others fail.
Factors supporting reform
- Greater acknowledgment within the Australian community of need for improvement may encourage law change, as parliamentarians are more likely to support reform reflecting majority views (to avoid losing electoral support)
- Recognising self-determination would enable meaningful control over lives and communities, ensuring Australia upholds international law obligations
- Entrenching a First Nations Voice in the Constitution would prevent future parliaments from abolishing it without referendum consent
- Constitutional recognition would acknowledge historical exclusion and could enshrine anti-discrimination principles
- Courts can establish common law rights when resolving cases involving alleged breaches
Challenges to reform
Significant Obstacles to Reform:
- Despite previous changes to statute and common law, rights are still not fully observed, as evidenced by clear differences in living standards between First Nations and non-Indigenous people
- Changing discriminatory statute law requires broader community support, and parliamentarians may be reluctant to support controversial reforms (like increasing age of criminal responsibility) for fear of losing voter support
- At federal level, government rarely holds majority in upper house, meaning reform needs opposition, minor party or independent support
- Constitutional change requires referendum support from large majority of Australian people, which is difficult to achieve because:
- Conservative voters are reluctant to support constitutional change
- Some people may not understand the proposal or are disinterested
- Some argue constitutional recognition won't result in tangible improvement
- Reforms like investing in family violence prevention require government willingness to increase funding
- Courts can only establish common law rights when cases are brought before them, which requires affected people to have money and willingness to pursue costly, stressful court action
Case study: The Love case and Montgomery case
The Love case (2020)
In the landmark case Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3, the High Court clarified and expanded First Nations peoples' rights by ruling they have a sense of identity and belonging to Australia that cannot be changed or denied by Parliament. Therefore, they cannot be subject to Commonwealth immigration laws and cannot be deported from Australia.
Background
The case arose when two First Nations men who had been convicted of serious indictable offences faced deportation. Although they were First Nations Australians, both were:
- Born overseas
- Held only permanent residency visas
- Had lived in Australia since childhood
The Australian Government commenced proceedings to cancel their visas and deport them, relying on the Commonwealth's constitutional power to make laws relating to immigrants.
Challenge
The two men challenged the deportation decision on the basis that despite being born overseas, they were First Nations Australians and therefore could not be considered immigrants (or 'aliens', the term used in the Australian Constitution).
High Court decision
A majority of the High Court (four out of seven justices) ruled in favour of the two men, agreeing that First Nations Australians cannot be considered immigrants or 'alien' to Australia because they have:
- An undeniable connection to the land
- A sense of 'kinship' and ancestry that cannot be extinguished or denied
Therefore, Commonwealth immigration laws, including deportation laws, cannot apply to First Nations Australians because they cannot be considered to belong to another place.
The Significance of the Love Decision
This decision recognised that First Nations peoples' connection to Country is so fundamental and undeniable that it transcends immigration law. Even if born overseas, a First Nations person has an inherent belonging to Australia that Parliament cannot override. This represents significant common law protection of First Nations peoples' rights.
The Montgomery case (2021)
In 2021, the government attempted to have the Love ruling overruled by lodging an appeal in a similar but unrelated case: Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Background
The Federal Court had to decide whether the Australian Government's decision to cancel a man's visa and hold him in immigration detention after conviction for an indictable offence was constitutionally valid.
Challenge
The man challenged the visa cancellation and detention, claiming that despite being born in New Zealand and being a New Zealand citizen, he was a First Nations Australian because he had been:
- 'Culturally adopted' by the Mununjali people of south-east Queensland when he moved to Australia at age 15
- Self-identified as a First Nations Australian
- Recognised as such by the Mununjali people
- Raised on Country in accordance with traditional laws and customs
The Australian Government argued he was not a First Nations Australian because he had no biological Aboriginal ancestry.
Federal Court decision
The Federal Court followed the legal precedent from the Love case and ruled against the Australian Government, finding the government did not have authority to cancel the man's visa or hold him in immigration detention.
This case extended the Love principle beyond biological ancestry to include cultural adoption and recognition by First Nations communities. It demonstrated that First Nations identity can be based on cultural connection and community recognition, not just biological descent.
Outcome
The Federal Government was granted special leave to appeal to the High Court, but after the Liberal–National Government lost office in the May 2022 federal election, the newly elected Labor Government abandoned the case two months later.
Significance of both cases
Key Takeaways from Love and Montgomery:
These cases demonstrate:
- The ability of individuals to bring about law change through court action
- The ability of courts to create and confirm common law rights when resolving cases brought before them
- The protection of First Nations peoples' undeniable connection to Country and their right not to be deported
- That First Nations identity can be recognised through cultural adoption and community recognition, not just biological ancestry
These cases represent significant advances in common law protection of First Nations peoples' rights, establishing that their connection to Australia is fundamental and cannot be overridden by immigration law.
Remember!
Key Points to Remember:
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First Nations people have lived in Australia for at least 65,000 years and are the traditional owners and custodians of the land.
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International law recognises First Nations rights through the UDHR and UNDRIP, but Australia voted against UNDRIP and has not formally adopted it.
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Protection in Australia is limited and occurs through statute law (anti-discrimination laws, Native Title Act, Victorian Charter) and common law (Mabo case, Timber Creek case, Love case).
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Key reforms needed include self-determination, constitutional recognition (including First Nations Voice to Parliament), and addressing disadvantage in the criminal justice system.
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The Love case established that First Nations Australians cannot be considered 'aliens' or immigrants and therefore cannot be deported, even if born overseas, due to their undeniable connection to Country.
Key terms: First Nations people, terra nullius, native title, self-determination, First Nations Voice to Parliament, UDHR, UNDRIP, constitutional recognition, common law rights