Human Rights and Social Justice for the Aboriginal and Torres Strait Islanders - Essay Example

Human Rights and Social Justice for the Aboriginal and Torres Strait Islanders (Name) (Institution) (Course) (Instructor’s Name) Date of submission Introduction The Human Rights and Equal Opportunity Commission (renamed Australian Human Rights Commission in September 2009) was established through the Human Rights and Equal Opportunity Commission Act by the federal parliament in 1986 as an independent statutory body mandated to enforce and protect human rights of Australians. The body is mainly charged with making public enquiries of cases of human rights violation. The body works in collaboration with other laws such as the Racial Discrimination Act (1975), the Age Discrimination Act (2004), the Sex Discrimination Act (1984) and the Disability Discrimination Act (1992) (HREOC 2010). However, the most definitive set of laws that guide the activities of this commission is the universal Human Rights requirement as spelt out by the United Nations Declaration of Human Rights of 1948. As a member of the UN, Australia is required to protect and uphold the universal Human Rights of all citizens. However, the Commission has faced a number of challenges that hinder its core function of ensuring that all persons in Australia have equal opportunities and their Human Rights are protected. There are also some philosophical differences in the UN’s interpretation of Human Rights and that of Australia that have implications on the functioning of the commission. This paper discusses the success of this commission in protecting the rights of the Aboriginal communities and Torres Strait Islanders and also addresses the congruence of the Australian interpretation of human rights to the international one defined by the UN. Social justice for Aboriginals and Torres Strait island peoples There exist various and sometimes conflicting definitions of human rights whereby their source is also not agreed by different scholars and nations. The modern understanding of human rights is largely derived from John Locke’s definition which said that human rights are rights that naturally belong to an individual by birth hence no other person government or society can take them away (Brown 2002; Nickel 2006). The United Nations Declaration on Human Rights of 1948, which uses Locke’s definition, recognizes these rights and categorizes them into 30 specified laws which are summarized in to: right to life, freedom of association, freedom of worship, right to own property and constitutional protection of human rights. Derived from these are the rights to equal opportunities through non discriminatory policies, right to education, shelter, healthcare and basic necessities of human existence (UN 2010). This declaration binds member states into protecting Human Rights by embedding them in international law and also by emphasizing members to include them in their constitutions. This requirement is meant to give governments a common framework to manage government and people’s interaction. Barnett (2004) argues that these rights are prone to violation by the same governments that are charged with the role of protecting them as some of them overstep the requirements of democracy and governance. Byrnes, Charlesworth and McKinnon (2008, p.1) say that human rights are invoked either in statutes or national constitutions aimed at resisting excesses of the state and empower people to claim for material conditions necessary to support human existence. The Australian federal government has opted for statutory enforcement of the human rights rather than constitutionally. The fact that the Australian federal government has no bill of Human Rights except for the Australian Capital Territory (ACT) is a clear indication that these human rights are lowly rated as a statute only. This implies that the commission, though created by parliament, its functions is not recognized constitutionally but rather administratively. The parliament therefore created a body without creating a legal framework through which it would carry out its duties. As such, the commission has no constitutional way to challenge government actions that violate human rights. This also places not only the Indigenous communities at risk but also the non-Indigenous communities. By failing to include the Bill of Human Rights in the constitution, the Australian federal government contravenes one of the UN requirements as a member state. In fact, Australia is the only western country that has no Bill of Human Rights in the constitution. Such a situation creates an avenue through which the rights of the citizens can be abused without breaking the law of the land. Government interests supersede those of an individual in Australia in open contradiction to UN requirements. Brown (2002) states that Australia’s response to UN Human Rights declaration “has been to downgrade its cooperation with UN Human Rights bodies” (p. 165). This implies that the country uses a ‘sub-standard’ interpretation of Human Rights which is enforced administratively. This is a direct challenge to the UN’s authority and legitimacy as the international law making body. Freeman (p. 42) finds fault with the UN Human Rights declaration and says it ignores some fundamental historical concepts relevant in enforcing Human Rights law. Australia seems to justify its position regarding Human Rights from this argument- an individual country needs to consider relevant historical concepts in enforcing Human Rights. The UN disapproves Australia’s approach to Human Rights and continues to criticize the government for its failure to enact a Human Rights Bill. Chakma and Jensen (2001) note that the government has reacted to the UN scrutiny by criticizing the terms of the Human Rights declaration. This implies that the government is not ready to cooperate with the UN in respecting the Human Rights according to the UN’s interpretation. The AHRC has often cited a number of court cases which violates the UN’s interpretation of human rights but are constitutionally acceptable in Australia. This indicates that the AHRC sides with the UN but differs with the authority that created it and the government that finances. This is an open indication that the AHRC has divided loyalty to two opposing bodies- the government and the UN, which makes it almost impossible to realize its goals. Australia’s opposition to UN’s interpretation emanates from philosophical differences in the interpretation and alleged source of Human Rights. In the Australian case, the government decides what constitutes a Human Right and what does not while the UN Declaration of Human Rights states that the government has no role to play in deciding what a Human Right is and what it is not. Devereux (2008) indicates that not all UN member states agree to the declaration’s interpretation, but it was enacted “not because …. (states) had agreed on a philosophy, but because they had agreed despite philosophical differences, on the formulation to a series of moral and political problems” (p.114). From this it can be deduced that the UN Declaration on Human Rights was reluctantly imposed on member states in a bid to put a ‘false face’ of unity of members in protecting Human Rights. This implies that just because other UN member states have a Bill of Human Right in their constitutions, it is not a guarantee that those governments are better in enforcing and protecting the Human Rights of its citizens than countries without one such as Australia. Australia therefore is just bold enough to announce its open opposition to imposition of laws that possibility could threaten its sovereignty as a republic. Opposing the UN interpretation of Human Rights is just one way of expressing its sovereignty while the UN perceives it as a way to justify abuse of Human Rights especially against the Indigenous communities. Enforcing Human Rights is a relative issue that is influenced by circumstances and the environment hence a blanket law such as required by the UN is not practical. Some aspects such as history and culture play a great role in determining how Human Rights are upheld and protected. Brown (2002) says that Human Rights abuse is relative given the many definitions of Human Rights. The author adds that the disadvantages witnessed among the Aboriginal and Torres Strait Island peoples are self inflicted mainly through primitive cultural practices that are incompatible with modern life. Therefore, from this understanding the government assumes that the inclusion of a Bill of Human Rights in the constitution will contribute very little into giving social justice to the Indigenous people. The buck therefore rests with the Indigenous communities to change their cultural practices in order for them to enjoy their Human Rights fully. Nonetheless, most of these communities treasure their cultures such as languages that learning has to be conducted in local languages rather than English in some communities (Native title report 2009). The Indigenous communities of Australia have suffered injustices at the hands of the early settlers and even some past governments. Such injustices include forced eviction, forced labour, unbalanced distribution of natural resources, and destruction of natural environment, cultural disruptions and racial discrimination. The actual turning point was Paul Keating’s 1992 Redfern Speech which, though it never made an official apology, gave an expression of regret over injustices committed by past generations against the Indigenous people. Hopper (2002) says the speech was instrumental in “lifting of the denial surrounding Australia's 'black' history” (p.278) which hampered the unification of Australians. Behrendt (2003) says that an attempt to make an official apology in 1999 was rejected by the federal parliament. This shows that a section of Australians recognise that discrimination against the Indigenous communities is self inflicted while others still feel it is perpetrated by the non-Indigenous people. The Australian government’s understanding of the source of Human Rights could also explain the government’s stand on the issue. Sen (2004) indicates that one approach on the issue, as used by John Locke claims that the rights are God given while another says that early Human Rights scholars developed them hence are not articulate. Sen (2004) says the two major western world sources of Human Rights are ‘The Rights of Man’ from France and the ‘American Declaration of Independence.’ The American version of Human Rights inserted the word ‘certain inalienable rights’ while the French version was more direct in stating that ‘men are born free and equal in rights.’ Equally, these declarations have an element of vagueness in them as they do not illuminate what ‘Rights’ that an individual is bestowed upon by the creator or Rights that are guaranteed upon birth and how modern political systems play their role in enforcing them. It would be expected that if the origins of these rights is religion, then religion should take the front seat in enforcing them as is common is Islam through Sharia law in Islamic states. Going by this argument, it would be expected that Human Rights issues should be addressed from a religious background and not constitutional one. This would absolve the Australian government any blame and would also denounce the AHRC. The AHRC calls for compensation of Indigenous communities for utilization of their ancestral land by the government or developers, something which is hotly contested. The claim of ownership to ‘community land’ is controversial, as the Indigenous people claim the land is naturally theirs while some non-Indigenous voices claim otherwise. The major question is, is the land their natural Right? Jeremy Bentham as cited in Sen (2004) does not believe that Human Rights are natural. In his book, Anarchical fallacies, published in the late 18th century, he rubbished the French ‘Rights of man’ as simple nonsense. Freeman (2002) argues that the best way to analyze human rights is from a historical perspective given that the validity of a concept depends on its meaning and how the meaning has been used and has evolved historically. In the same manner, the style of enforcement should be drawn from history. In 1981, a researcher named MacIntyre researched intensively on the history of Human Rights and their source in a number of societies. He discovered that there was no vocabulary for Human Rights before 1400 which he made him assume that there was no such thing as Human Rights then (Freeman (2002). This discovery negates the Indigenous people’s claim to natural land. This also nullifies the UN Declaration of Human Rights which assumes that Human Rights are natural. With the absence of natural Human Rights, then individual government have the mandate to decide what constitutes Human Rights as dictated by the environment, culture, national history, social context and any other relevant factors. Australia as an independent country has an obligation to protect what it feels rightfully constitutes Human Rights. The manner of enforcing these Human Rights thus solely rest with the same government that formulated them. The UN therefore has no business in defining for a sovereign state such as Australia what constitutes Human Rights. The Human Rights Statutory in collaboration with the Racial Discrimination Act (1975), the Age Discrimination Act (2004), the Sex Discrimination Act (1984) and the Disability Discrimination Act (1992) are what the government feels are the best ways of protecting the Human Rights of Australians as per the government’s interpretation. Unfortunately, the AHRC is modelled in a way to serve the interests of the UN declaration rather than the government’s interpretation of Human Rights. The Australian interpretation of Human Rights, independently from the UN interpretation gives precedence to rights of society/government instead of the individual something also witnessed in Communist states. While the UN states clearly that the rights of an individual transcend those of the state, some communist states argue that the rights of the state transcend those of an individual. In jurispredential debates in UN Human Rights conferences, Australia has crafted its own ‘middle course’ which recognises the existence of Human Rights but remains silent on the source. This ‘middle course’ allows limitations of Human Rights on two major occasions; (i) where necessary to protect the rights of others and (ii) where the exercise of Human Rights is considered incompatible with the laws of the land (Devereux 2008). Due to these limitations, Human Rights are enforced administratively in Australia but not constitutionally. Consequently, the government withholds social justice more so to the Indigenous communities especially where there are claims to preservation of ancestral land as opposed to development of such land. The Native Report (2009) notes an instance where through the ‘Intervention’ program the government threatened to use force to acquire town camp land in Alice Springs. Such a government stand underscores the importance of the AHRC in investigating such cases. Aboriginal communities should be included in government decisions making processes pertaining to Human Rights given that the UN Declaration of Human Rights and a natural claim to Human Rights have weak support, a role played by the AHRC. The Bringing them Home report by the commission released in 1997 played an instrumental role in helping the indigenous communities present their case to the government. For instance the report through shedding light on the issue of ‘stolen generation’ emphasizes on the need for an official apology to the Aboriginal and Torres Strait island people for such injustices. The biannual Native Title Report prepared by the commission has also been instrumental in sensitizing the government about the wishes of the Aboriginal and Torres Strait island peoples and giving recommendations. For instance, the 2009 report recommended that the federal government should provide improved forms of land ownership for the Aboriginal communities, abolition of the compulsory five year leases on Aboriginal land, diversion of some funds for running prison facilities to local community programs and better rehabilitation programs in prison facilities. The recommendations pertaining to reform in the imprisonment programs follows the report that persons from the indigenous communities were four times more likely to be imprisoned over criminal activities than non indigenous communities (Native title report 2009; Cunneen 2001). Conclusion A number of the recommendations that the commission has made to the government have either been acted upon in part or have been totally ignored. This has affected the success rate of the commission. As earlier indicated, despite there being an active commission on human rights, Australia is far from attaining social justice for the Aboriginal communities and Torres Strait islanders to reach the level recommended by the UN. However the commission has been instrumental in pressuring the government and advising the government on different issue that pertain to the Aboriginal communities and Torres Strait islanders. References Barnett, H. (2004). Constitutional & administrative law. 5th ed. Sydney” Routlegde Cavendish Behrendt, L. (2003). Achieving social justice: indigenous rights and Australia's future. Sydney: Federation Press Beresford, Q. (2006). Rob Riley: an aboriginal leader's quest for justice. Melbourne: Aboriginal Studies Press Brown, A. (2002). Human rights and the borders of suffering: the promotion of human rights in international politics. Manchester: Manchester University Press Byrnes, A., H. Charlesworth and G. McKinnon (2008). Bills of Rights in Australia: History, Politics and Law. Sydney: UNSW Press, 2008 Calma, T. & V. Doussa, (2008). ‘Recognition of the indigenous people of Australia and their rights.’ In Johnston, E., M. Hinton & D. Rigney. Indigenous Australia and the law. Sydney: Routlegde Chakma, S. & M. Jensen (2001). Racism against indigenous peoples. Sydney: IWGIA Cunneen, C. (2001). Conflict, Politics and Crime: Aboriginal Communities and the Police. Melbourne: Allen & Unwin Devereux, A. (2008). Australia and the birth of the International Bill of Human Rights, 1946- 1966. Perth: Federation Press Freeman, M. (2002). Human rights: an interdisciplinary approach. New York: Wiley-Blackwell, Human rights commission. Retrieved online on 6th Sep 2010 from, Hoppers, C. (2002). Indigenous knowledge and the integration of knowledge systems: towards a philosophy of articulation. Pretoria: New Africa Books Nickel, J. (2006). "Human Rights" in Stanford encyclopedia of philosophy, available online at: Retrieved online on 6th Sep 2010 from, Sen, A. (2004). The idea of justice. New York: Harvard University Press Social justice. Native title report 2009. Retrieved online on 6th Sep 2010 from, Retrieved online on 6th Sep 2010 from, Read More

The fact that the Australian federal government has no bill of Human Rights except for the Australian Capital Territory (ACT) is a clear indication that these human rights are lowly rated as a statute only. This implies that the commission, though created by parliament, its functions is not recognized constitutionally but rather administratively. The parliament therefore created a body without creating a legal framework through which it would carry out its duties. As such, the commission has no constitutional way to challenge government actions that violate human rights.

This also places not only the Indigenous communities at risk but also the non-Indigenous communities. By failing to include the Bill of Human Rights in the constitution, the Australian federal government contravenes one of the UN requirements as a member state. In fact, Australia is the only western country that has no Bill of Human Rights in the constitution. Such a situation creates an avenue through which the rights of the citizens can be abused without breaking the law of the land. Government interests supersede those of an individual in Australia in open contradiction to UN requirements.

Brown (2002) states that Australia’s response to UN Human Rights declaration “has been to downgrade its cooperation with UN Human Rights bodies” (p. 165). This implies that the country uses a ‘sub-standard’ interpretation of Human Rights which is enforced administratively. This is a direct challenge to the UN’s authority and legitimacy as the international law making body. Freeman (p. 42) finds fault with the UN Human Rights declaration and says it ignores some fundamental historical concepts relevant in enforcing Human Rights law.

Australia seems to justify its position regarding Human Rights from this argument- an individual country needs to consider relevant historical concepts in enforcing Human Rights. The UN disapproves Australia’s approach to Human Rights and continues to criticize the government for its failure to enact a Human Rights Bill. Chakma and Jensen (2001) note that the government has reacted to the UN scrutiny by criticizing the terms of the Human Rights declaration. This implies that the government is not ready to cooperate with the UN in respecting the Human Rights according to the UN’s interpretation.

The AHRC has often cited a number of court cases which violates the UN’s interpretation of human rights but are constitutionally acceptable in Australia. This indicates that the AHRC sides with the UN but differs with the authority that created it and the government that finances. This is an open indication that the AHRC has divided loyalty to two opposing bodies- the government and the UN, which makes it almost impossible to realize its goals. Australia’s opposition to UN’s interpretation emanates from philosophical differences in the interpretation and alleged source of Human Rights.

In the Australian case, the government decides what constitutes a Human Right and what does not while the UN Declaration of Human Rights states that the government has no role to play in deciding what a Human Right is and what it is not. Devereux (2008) indicates that not all UN member states agree to the declaration’s interpretation, but it was enacted “not because …. (states) had agreed on a philosophy, but because they had agreed despite philosophical differences, on the formulation to a series of moral and political problems” (p.114). From this it can be deduced that the UN Declaration on Human Rights was reluctantly imposed on member states in a bid to put a ‘false face’ of unity of members in protecting Human Rights.

This implies that just because other UN member states have a Bill of Human Right in their constitutions, it is not a guarantee that those governments are better in enforcing and protecting the Human Rights of its citizens than countries without one such as Australia. Australia therefore is just bold enough to announce its open opposition to imposition of laws that possibility could threaten its sovereignty as a republic.

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