Alternative Law Journal
MELISSA CASTAN and DAVID YARROW[*]
On 25 July 2006, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) received royal assent. It will commence on 1 January 2007, making Victoria the first Australian state to adopt a Charter of Rights (not to mention Responsibilities!). The Charter is based on the work of the Human Rights Consultative Committee, which delivered its report, Rights, Responsibilities and Respect (‘the Report’), to the Attorney General in December 2005. In its Report, the Committee recommended that the Victorian Parliament adopt a Charter incorporating a number of well known civil and political rights, such as the rights to life, to freedom from torture and slavery, to protection from the unlawful deprivation of property, to privacy, to political participation (including voting), and to freedom of thought, religion and belief, expression, association and assembly. The Charter was said to be based on human rights laws that operate in the Australian Capital Territory, the United Kingdom and New Zealand. Consistently with those laws, the Committee did not recommend, and the Charter does not address, the very first right captured in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR); that is the right of self-determination.
Some 40 years ago, Professor Bill Stanner, one of Australia’s greatest modern anthropologists, drew attention to what he called the ‘cult of disremembering’ or ‘the Great Australian Silence’ in his ABC Boyer Lectures. He described the inattention to the reality of what had been done to the original Australians as ‘a structural matter — a view from a window which has been carefully placed to exclude a whole quadrant of the landscape’.
From the decision to not include a right to self-determination, either for Indigenous Victorians or as a general right, it appears that the ‘cult’ Stanner referred to is still practised. Self-determination was put to one side, apparently because of claimed uncertainty as to the content of such a right. The Charter’s preamble states ‘human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters’. It also makes special mention in s 19 of the rights of Indigenous peoples to enjoy their own culture. Pursuant to s 44, the Charter is required to be reviewed after a four-year period. The review is to include a consideration of whether additional rights should be included in an amended Charter, including the right to self-determination and rights under the ICESCR, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women.
We argue that there are no reasonable grounds for excluding self-determination from the Charter.
Self-determination is central to the protection of all human rights. It appears in a number of international human rights instruments, and has done for many years. The Committee and the government isolated the ICCPR as the baseline for determining the appropriate statement of human rights principles for Victoria. Whilst we do not agree that the content of human rights should be confined to the ICCPR, it is notable that self-determination appears as Article 1 in that very Covenant. Self-determination is a civil and political human right co-equal with other rights articulated in the ICCPR.
It is no accident that self-determination is included in both the ICCPR and the ICESCR which, together with the Universal Declaration of Human Rights, are recognised as the primary statements of human rights principles in the United Nations human rights system. The concept of self-determination protects human dignity by guaranteeing full and free participation in civil and political processes, as well as rights to pursue economic, social and cultural development. These processes are central to the enjoyment of all human rights. Almost every aspect of public life, and particularly government decision-making, interacts with the right to self-determination.
Self-determination promotes social solidarity and goodwill between citizens and communities. Even when people do not agree with policy outcomes, if they are committed to the process by which the outcomes are achieved, those people are more prepared to abide by the outcomes. This is the ‘responsibility’ aspect of a Charter of Rights. A system of government that does not respect or protect self-determination for all citizens permits governance without effective citizen participation.
Proper protection of the right to self-determination, such as in a Charter of Rights, creates an institutional imperative to respect and enhance the democratic process. This is the fundamental rationale of any such charter. Failing to recognise self-determination undermines the process.
For example, without a right to self-determination (which is more substantial than a ‘public life participation’ right in s 18 of the Charter), action such as the wholesale removal of elected local government councillors, as occurred in Victoria in the early 1990s, will not be subject to human rights deliberation to the standard required by the ICCPR. A further example of the abolition of representative, democratic institutions in Australia without any human rights recourse is the dissolution by the Commonwealth government of the Aboriginal and Torres Strait Islander Commission in 2005. Government action should be subject to human rights scrutiny and recourse when it impacts on the community’s participation and political autonomy. This is true for Indigenous and non-Indigenous contexts.
The Committee recommended against the inclusion of self-determination in a Charter of Rights on a number of grounds, namely: uncertainty; lack of community consensus; and unintended consequences. None of these grounds withstand close scrutiny.
The first explanation for non-inclusion was that the concept of self-determination is uncertain. It is a substantial oversimplification to present this right as uncertain in law. Self-determination is defined as a people’s right to freely determine their political status and freely pursue their economic, social and cultural development. There is extensive literature and jurisprudence which clarifies the right. Although some elements of international law and policy concerning self-determination are contested, such as the secession entitlements of colonised peoples, these are issues at the margin of the meaning of self-determination. While these issues are important, they do not apply in the Australian context and do not detract from the clear core meaning of the right.
In addition to legal uncertainty, the Committee characterised self-determination as incoherent, and contested, at a community level. We do not agree with this description of community understanding nor its relevance to the inclusion of a right of self-determination in a Charter of Rights. While it is true to some extent that the community at large does not have the same level of understanding of the right of self-determination as that of, say, an international jurist, the fact remains that community debate is about the very substance of self-determination. What is the role of the Indigenous community in decision-making that directly impacts the community, like adoption, family placement and child protection? What is the division of responsibility between the state and the Indigenous community in cultural heritage? Who decides? How is decision-making power divided? The debate about community involvement and control of decision-making demonstrates a good understanding, albeit not an expert one, of the right of self-determination and the parameters of debate about its implementation. It is common for communities to contest the meaning of human rights as part of the political process. If anything, this is evidence of the relevance of self-determination in Victoria. Contesting the content of a particular right is also an aspect of self-determination.
Furthermore, the substance of debate within the Indigenous community and the importance they attach to the right, evinces their commitment to asserting self-determination as a right worthy of recognition. This militates in favour of inclusion of the right of self-determination in a Charter of Rights.
Even if there is uncertainty within the community about the meaning of the right of self-determination, the Committee’s reference to this uncertainty is not an adequate reason to withhold any recognition of the right. There are numerous other human rights for which community understanding is limited yet the Committee has recommended protection for them, for good reasons. For example, the scope of rights to a fair and public hearing, to liberty, and freedom from arbitrary detention, may not be well understood by the community at large and yet the Report recommends their inclusion in a Charter of Rights.
The final reason for not protecting the right to self-determination was that to include it may have unintended consequences. The Committee’s point about the potential for unintended consequences rests on its claim that the content of a right to self-determination is uncertain. As noted above, while there is debate about some particular aspects of self-determination, the core meaning of self-determination is as reasonably stable as that for the other human rights which have been included in the Charter. The consequences of inclusion of the right of self-determination would be those arising from the minimum content of that right. It is worth considering that content.
The debate about self-determination is often presented as a matter of competing claims to the sovereignty of a territory. This false dichotomy has long been discredited. It fails to represent accurately the wide range of state obligations to minorities and Indigenous people, the vast majority of which fall well short of any sovereign claim.
Self-determination has been a central issue in international law and policy since the Treaty of Versailles. Numerous scholarly treatments, opinions of leading jurists and international judicial and treaty bodies give concrete meaning to the concept of self-determination. It is now clear that self-determination is susceptible of clear definition. The leading scholar in this area, Professor S James Anaya, gives expression to such a definition. Anaya suggests that self-determination has a ‘constitutive’ aspect, concerning the requirement that the governing institutional order be developed through the will of the peoples governed. It also has an ‘ongoing’ aspect, which means that the governing order must be one that people can live in, and develop freely within, on a continuing basis. He suggests that decolonisation does not require turning the clock back (returning governance arrangements to their previous state), but that remedies sensitive to present day aspirations of the peoples denied self-determination can be developed. In this way, remedial justice for the denial of self-determination is both backward looking and prospective in nature.
Anaya suggests five elements which constitute the right to self-determination, namely: non-discrimination; cultural integrity; lands and natural resources; social welfare and development; and self-government. These are examined to succinctly canvass the way a government might comply with the international standard regarding self-determination.
Non-discrimination is more than mere ‘equal treatment’ or the enactment of anti-discrimination laws. Substantive equality is the goal of non-discrimination and it is well understood that achieving this for different communities with differing histories may require, at least temporarily, targeted beneficial treatment. Non-discrimination as an aspect of self-determination addresses communities, as much as the treatment of individuals. Anti-discrimination laws, like the Equal Opportunity Act 1995 (Vic), provide for individual complaints about breaches of duties to give equal treatment in specified areas. Non-discrimination (as an aspect of self-determination) requires equal respect and concern for peoples and particular communities. Inclusion of self-determination in a Charter of Rights would require government action to give equal respect and concern to and between all communities. This is not a difficult concept; it is partly met in current equal opportunity legislation, and is separately addressed in s 8(2) of the Charter which establishes the right of every person to enjoy their human rights without discrimination.
Self-determination includes the right of communities to express, protect, preserve and transmit to future generations their culture. This enables communities to maintain their cultural integrity both in the present and for the future. Culture, as envisaged by the right to self-determination, encompasses language, traditional practices, religion, spiritual values, preservation of group identity and self-definition. In some cases, the maintenance of cultural integrity can be achieved without government action. Where it cannot, respect for the right of self-determination will require government intervention in the form of policies, programs and legislation. For example, legislation in Victoria provides for a measure of protection of Aboriginal cultural heritage values on private land. This legislation seeks to reconcile the public interest in cultural heritage protection with the private interest of property rights. Whether the legislation is adequate, in light of the right to self-determination, will be determined by the legislation’s capacity to provide a stable platform for the maintenance of Aboriginal cultural integrity. As noted earlier, s 19 of the Charter already provides some protection to Indigenous cultural rights.
Land is an important aspect of Indigenous identity and social harmony. Traditional and spiritual beliefs and practice based in the Indigenous relationship to land and use of natural resources are also fundamental. The right to self-determination encompasses both of these. Without them, Indigenous people cannot survive as Indigenous people. Consequently, this aspect of the right to self-determination requires that the law of a state:
• provide adequate protection for existing Indigenous rights to land and natural resources
• provide access to a land base sufficient for maintaining the way of life of an Indigenous group
• facilitate the use of natural resources central to Indigenous cultural and economic practices.
Without any great controversy, the Victorian Parliament has already acknowledged that Aboriginal Victorians are the original custodians of the land that is now Victoria (although, the absence of controversy is probably explained by the fact that the acknowledgement does not create or affect legal rights).
Rights of social welfare and development are inherent aspects of the UN Charter (articles 55 and 56) and the ICESCR. In addition, Anaya emphasises that social welfare and development are part of self-determination. Not only do these rights benefit individuals, but also they extend to ‘peoples’. Anaya identifies a ‘special rubric’ of entitlements and duties that have developed about Indigenous peoples. These are aimed at remedying the historical treatment of Indigenous people that underpins much of their current economic disadvantage. One aspect of this relates to the historical dispossession of Indigenous people from their land and resources, leaving them in impaired economies — ‘the poorest of the poor’. Another aspect is the discriminatory treatment of Indigenous people, excluding them from the social welfare generally available to others.
Anaya says that ‘a core consensus exists that states are in some measure obligated’ regarding social welfare and development. He goes on to quote Robert Tickner (then Minister for Aboriginal and Torres Strait Islander Affairs) who in 1992 said that Australia is committed at all levels of government to ‘take steps and commit resources to advance the social welfare and development of Indigenous individuals and communities’.
This aspect of self-determination requires government action to improve and promote the economic and social welfare of Indigenous people.
Self-government is often characterised as the internal aspect to self-determination. The allocation of rights and entitlements within an Indigenous group are determined by the group itself, rather than dictated by an external authority. Self-government has a process orientation — it gives force to the way Indigenous groups make and enforce decisions which affect them as a group. But it is a mistake to think that self-government means decision-making authority about group members alone. Implementing decisions about the use of group resources, for example, may have impacts on non-group members. A decision to deny a non-group member access to land held by a group may require enforcement against the non-group member.
Self-government also has relevance for the administration of programs and policies for Indigenous people. In Victoria, this means that Aboriginal people should have a central role in decision-making for such programs and policies. For example, in the judicial realm, the establishment of the Koori Court Division of the Magistrates’ Court and the Koori Court (Criminal Division) of the Children’s Court aims to increase the involvement and engage the authority of Koori elders in the administration of criminal justice. It is not hard to imagine similar arrangements in other parts of the judicial system. Similar delegation, participation and inclusion within executive functions would enhance recognition of self-government.
Respect for self-government does not require the creation of territorial units with primary Indigenous control of administration. Rather, it encourages the principled collaboration in, and sharing of, administrative functions in areas affecting Indigenous interests.
Given the very mild protection the Charter proposes for those rights which are addressed, it is all the more perplexing that the right of self-determination is not included. The scheme by which human rights will be protected by Parliament, courts and tribunals and public authorities is not one which sets an onerous standard for compliance. Human rights are not directly enforceable by the judiciary, but rather are indirectly scrutinised and breaches are rendered explicit. Independent causes of action in respect of rights violations are not created by the Charter.
There are three main elements of this framework. First, the Charter requires all Bills introduced into Parliament to be accompanied by a statement of compatibility prepared by the relevant Member of Parliament. This statement would set out whether the Bill is compatible with the rights protected by the Charter (although the government can expressly override human rights in certain situations). The Scrutiny of Acts and Regulations Committee would also examine whether a Bill is incompatible with the Charter. Second, the Charter imposes obligations on public authorities to act in a way that is compatible with rights protected. Third, the Charter requires courts and tribunals to interpret Victorian statutes and statutory instruments in a manner that is compatible with human rights as far as is possible, in accordance with the purpose of the statute or statutory instrument.
The Charter allows for the referral to the Supreme Court of two types of questions: those questions of law relating to the application of the Charter; and those arising with respect to the interpretation of a statutory provision in accordance with the Charter. Where a statutory provision is not able to be interpreted consistently with human rights, a declaration of ‘inconsistent interpretation’ may be made by the Supreme Court. Such a declaration is of very limited legal effect; it will not affect the validity, operation or enforcement of the statutory provision or create in any person any legal right or give rise to any civil cause of action.
But of most interest is that under the Charter, a court or tribunal may examine international conventions, and international customary law, and (as a secondary source) judicial decisions, and the research and commentary of international scholars and experts. Decisions of the International Court of Justice, European Court of Justice, Inter-American Court of Human Rights and the UN treaty monitoring bodies such as the Human Rights Committee, would become relevant to the Supreme Court’s review processes. The Charter permits consideration of judgments of domestic and foreign courts and tribunals relevant to a human right (and thus self-determination) when interpreting a statutory provision. Decisions from courts in the ACT, Canada, New Zealand, South Africa and the United Kingdom would play a role in the development of a human rights culture in Victoria.
The inability to engage with the implications of the internationally recognised, and protected, right of self-determination appears to be not only a feature of the Charter, but endemic in Australian policy deliberations. For example, recent policy studies concerning Indigenous customary law in Australia have largely avoided any detailed examination of the consequences of self-determination for Australian domestic law. This does not sit well with Australia’s obligation to legislate to protect and promote human rights in general.
There are no principled grounds on which to distinguish between the right of self-determination and the other rights enunciated in the ICCPR when considering the content of a Charter of Rights for Victoria. The right to self-determination is no less important than any of the other rights of the ICCPR. If anything, a failure to include the right to self-determination undermines the recognition of the other rights included in the Charter. For Indigenous and non-Indigenous Victorians, the inclusion of a right to self-determination would promote democratic inclusion and accountability.
The Charter’s preamble specifies that human rights are important for everyone and have particular significance for the Aboriginal people of Victoria, but ironically the human right that Indigenous Victorians most seek to have protected is notable for its glaring omission. Is Professor Stanner’s cult of forgetfulness still with us when it comes to the human rights of the original Victorians?
[*] MELISSA CASTAN teaches law at Monash University.
DAVID YARROW teaches law at Monash University.
The authors would like to acknowledge the valuable referees’ feedback on an earlier draft of this work.
© 2006 Melissa Castan and David Yarrow
 W E H Stanner, After the Dreaming (1991 reprint) 24–5.
 Human Rights Consultation Committee (Vic), Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 39.
 S J Anaya, Indigenous Peoples in International Law (2nd ed, 2004).
 Section 19 is based on art 27 ICCPR which affords ethnic, religious or linguistic minorities the right to enjoy their own culture, profess and practise their own religion and use their own language.
 Constitution Act 1975 (Vic) s 1A.
 Constitution Act 1975 (Vic) s 1A(3).
 S J Anaya, Indigenous Peoples in International Law (2nd ed, 2004) 108.
 Ibid 109.
 Established by the Magistrates’ Court (Koori Court) Act 2002 (Vic).
 Established by the Children and Young Persons (Koori Court) Act 2004 (Vic).
 See, eg, Law Reform Commission of Western Australia, Customary Law, Human Rights and International Law: Some Conceptual Issues, Background Paper No 11 (2005) and Northern Territory Law Reform Committee, International Law, Human Rights and Aboriginal Customary Law, Background Paper No 4 (2003).