Inquiry into the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia
24 June 2022
The Law Council of Australia (the Law Council) makes this submission to the Senate Legal and Constitutional Affairs References Committee (the Senate Committee) to respond to the inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia (the Inquiry).
The Law Council strongly supports consideration of how the UNDRIP might be better applied domestically in Australia. Its Policy Statement on Indigenous Australians and the Legal Profession, released in 2010, commits the Law Council, working in partnership with First Nations peoples, to promoting implementation of this international instrument and awareness of its provisions amongst the Australian legal profession and community.
At this stage, given the high level of generality of the present Inquiry, the Law Council makes the following recommendations as preliminary suggestions for pursuing domestic application of the UNDRIP.
- A referendum for a First Nations Voice to Parliament enshrined in the Australian Constitution should be pursued as a matter of priority. Such a Voice would be a manifestation of the right to self-determination, which is the fundamental principle underpinning the UNDRIP.
- Further consideration should be given to the development of a national action plan for domestic application of the UNDRIP, which might:
- audit or review existing legislation and policies for consistency and conformity with the UNDRIP;
- consult on, or engage with existing consultations on, the content of key principles of the UNDRIP such as ‘free, prior and informed consent’, based in international formulations and applied to the domestic context including in the provisions of new cultural heritage legislation, the Native Title Act 1993 (Cth), and the Corporations (Aboriginal and Torres Strait islander) Act 2006 (Cth); and
- consult on options for comprehensive domestic implementation of the UNDRIP, either in a Federal Human Rights Act or in standalone legislation.
- The definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be amended to explicitly include the UNDRIP as an instrument for which the Parliamentary Joint Committee on Human Rights (PJCHR) has reporting functions.
- The UNDRIP should be declared a ‘relevant international instrument’ within the definition of ‘human rights’ in the Australian Human Rights Commission Act 1986 (Cth) (or otherwise explicitly included in the definition), in order that the rights declared by the UNDRIP come within the inquiry and complaints function of the Australian Human Rights Commission (AHRC).