Understanding Aboriginal Women’s Rights

The Wiyi Yani U Thangani Dialogue One Report provides an overview of structural change and what this means for First Nations gender justice and equality in Australia. Structural change “is reimagining and rebuilding a system from the ground up”¹⁶ and in the context of First Nations gender justice and equality, this means looking at “the knowledge and strengths of First Nations Women and girls to build a new system.”¹⁷ Structural change requires multi-layered, simultaneous intervention that reforms policy and legislation, but also addresses deeply held values and beliefs.¹⁸

To see significant structural change, systems must be transformed. Transformation occurs when new, different and varied perspectives are implemented and there is no such thing as “business-as-usual”.¹⁹ Transforming the system requires understanding the lived experiences and knowledge of women, especially those who have been marginalised and harmed by existing systems, and changing the structures and systems in response to the needs of women and girls.²⁰

Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which Australia has signed and ratified, states that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”²¹

Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Australia ratified in 2009, states the specific right Indigenous peoples have to self-determination and that in exercising that right, “have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”²²

Chapter 2 of the Social Justice Report 2002 is titled Self-determination – the freedom to ‘live well’ and, whilst written before the UNDRIP was adopted by the United Nations, it provides an overview of self-determination in the context of international law, as well as the position of Australian governments from 1972 up until the early 2000s.²³ The Chapter summarises 22 factors that underpin Indigenous peoples’ right to self-determination, including it being: 

• an ongoing process aimed at human security, fulfilment and needs and based on choice, participation and control; 
• founded on respect for distinct cultural values and diversity, and relationship to land and resources;  
• officially recognised by the State, their representatives and institutions; and
• measured by Indigenous peoples, not others, as to whether they feel they have choices about their lives.²⁴

The Australian Human Rights Commission describes Native Title as “a property right which reflects a relationship to land which is the very foundation of Indigenous religion, culture and well-being.”²⁵ AIATSIS provides general information about native title, including the Act, how native title is managed and compensation. Further information about native title can be found on the PBC website.

The Arts Law Centre of Australia provides an information sheet about Indigenous Cultural and Intellectual Property (ICIP), including a description, what it covers and its relevance to Australian law. 

Terri Janke and Company provide information about Indigenous Cultural and Intellectual Property (ICIP) and offer ICIP services including workshops, drafting agreements and advising how to safeguard knowledge and culture.²⁶ The Company has produced a variety of free resources, including the Law Way publication and a series of related videos that discuss business start ups as well as ICIP – see video Law Way: Indigenous Cultural and Intellectual Property (ICIP) Protocols. Beyond this, an extensive list of resources is available, including Protocols for using First Nations Cultural and Intellectual Property in the Arts and Indigenous Cultural Protocols and the Arts.

A human rights approach turns legal instruments into actualities to achieve freedom and dignity for all people²⁷. Human rights approaches often follow the common principles of PANEL²⁸: 

• Participation – every person has the right to participate in decisions related to their human rights. 
• Accountability – appropriate systems should be in place to monitor human rights compliance, remedy and achievement.
• Non-discrimination and equality – in realising human rights, and in particular people who are marginalised or vulnerable, all forms of discrimination must be extinguished. 
• Empowerment – every person is entitled to their rights and freedoms. 
• Legality – human rights and freedoms are entitlements that are legally enforceable. 

The United Nations Sustainable Development Group (UNSDG) is underpinned by universal values, including the principle of a Human Rights-Based Approach (HRBA).²⁹ The HRBA is a conceptual framework that aids human development based on international obligations by centering the promotion and protection of human rights.³⁰ Whilst it is acknowledged there is not one human rights-based approach, United Nations agencies have agreed to the following essential attributes from The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies: 

• the realisation of human rights as per the Universal Declaration of Human Rights and other international human rights instruments; 
• human rights standards and principles from the Universal Declaration of Human Rights and other international human rights instruments underpin all development and operations; and
• development includes developing the capacities of ‘duty-bearers’ to meet obligations and ‘rights-holders’ to be entitled to their rights.³¹

From Principle to Practice: Implementing the Human Rights Based Approach in Community Organisations³² was published by the Victorian Equal Opportunity & Human Rights Commission in 2008 and provides an explanation of the human rights based approach, along with implementation considerations and tools for organisations.

The Lowitja Institute has published two documents that discuss strengths-based approaches within the context of Aboriginal and Torres Strait Islander health and wellbeing:

1. Deficit Discourse and Strengths-based Approaches: Changing the Narrative of Aboriginal and Torres Strait Islander Health and Wellbeing; and
2. Aboriginal Health and Wellbeing Services – Putting community-driven, strengths-based approaches into practice.

In addition to the two documents published by The Lowitja Institute (see Strengths-based Approach), Deficit Discourse and Indigenous Health: How narrative framings of Aboriginal and Torres Strait Islander people are reproduced in policy was produced as part of the series.

In Good Hands: The People and Communities behind Aboriginal-led Solutions, published by Oxfam Australia, provides 10 recommendations for fostering effective Aboriginal-led solutions.

As an example of solutions-based thinking, the Empowered Communities animation explains the vision of the group (lead change, empower people) and the empowered communities model to ensure the needs of 10 regions across Australia are heard, prioritised and actioned by the government.

Binarri-binyja yarrawoo (BBY) Aboriginal Corporation is a backbone organisation of Empowered Communities and has collected data at community and government levels to create a strong evidence base to enact policy reform. Evidence to date includes youth spaces, food security, strong kids, community development and language and culture.

In March 2018 the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples was appointed with Senator Patrick Dodson and Mr Julian Lesser MP as Co-Chairs. 480 submissions were received, including from the Australian Human Rights Commission which was endorsed by every Aboriginal person who has held the office of Social Justice Commissioner since 1993.³³ As part of the Australian Human Rights Commission submission, a Timeline and Overview of Findings was prepared which included every event each Aboriginal and Torres Strait Islander Social Justice Commissioner responded to since 1991 and hence their strong argument for constitutional reform.³⁴

1991

• The Royal Commission in Aboriginal Deaths in Custody (RCIADIC)
• National Inquiry into Racist Violence (NIRV)
• The Council for Aboriginal Reconciliation (CAR)

1992

• Mabo v Queensland (No.2) (1992)
• Redfern Speech

1993

• Aboriginal and Torres Strait Islander Social Justice Commissioner role established (in response to RCIADIC and NIRV).
• Native Title Act 1993

1995

• Social Justice Package
• ATSIC Report – Recognition, Rights and Reform
• Mick Dodson’s 1995 Social Justice Report

1996

• Wik peoples v The State of Queensland

1997

• Howard Government 10-point plan
• Bringing them Home Report

1998

• Constitutional Convention
• The Hindmarsh Island Bridge Case
• Native Title Amendment Act 1998

2000

• Reconciliation Australia’s Challenge – CAR Final Report
  • Australian Declaration Towards Reconciliation
  • Roadmap for Reconciliation
• Dr William Jonas 2000 Social Justice Report

2005

• ATSIC Abolished
• National Reconciliation Planning Workshop

2006

• Tom Calma 2006 Social Justice Report (stating need for a National Indigenous Representative Body).

2007

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted by legislative assembly (not endorsed by Australian until 2009).
• Tom Calma Social Justice Report 2007 (and in response the Closing the Gap steering committee established).
• Northern Territory National Emergency Response Act 2007 (enabling suspension of Racial Discrimination Act and others as ‘special measures’).

2008

• Review of the Northern Territory Emergency Response
• Australia 2020 Summit
• Apology to Australia’s Indigenous Peoples
• National Indigenous Health Equality Summit
• Tom Calma Social Justice Report 2008 (stating mutually-reinforcing positions for the development of a human rights framework).
• Tom Calma Building a Sustainable National Indigenous Representative Body (Issues Paper)
• National Human Rights Consultation Committee

2009

• Australian Human Rights Submission to National Human Rights Consultation Committee (stating constitutional amendments are necessary to protect and promote human rights).
• National Human Rights Consultation Report
• “Our Future in Our Hands” – Creating a Sustainable National Representative Body for Aboriginal and Torres Strait Islander Peoples (Report of the Steering Committee).
• UNDRIP endorsed by Australia.

2010

• National Congress of Australia’s First Peoples (Congress)
• Mick Gooda becomes Aboriginal and Torres Strait Islander Social Justice Commissioner prioritising recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.
• Reinstatement of Racial Discrimination Act in relation to Northern Territory Emergency Response.

2012

• Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel
• The Recognise campaign is established by Reconciliation Australia.
• Joint Select Committee (JSC) on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples is appointed (the committee was established in 2013 and the final report was tabled in 2015).
• Australian Human Rights Commission Submission – Stronger Futures in the Northern Territory

2013

• Aboriginal and Torres Strait Islander Peoples Recognition Act (lapses in 2018).

2015

• JSC Final Report

2017

• June Oscar becomes Aboriginal and Torres Strait Islander Social Justice Commissioner
• Referendum Council begins constitutional dialogues.
• The Uluru Statement
  • Uluru – National Convention
  • Uluru Statement: A Quick Guide
• Referendum Council Final Report presented with constitutional recommendations.

2018

• Parliamentary Joint Select Committee on Constitutional Recognition is established and the final report is presented on 29 November 2018.³⁵ Summarised recommendations include:

1. The Voice be co-designed with the Australian Government and Aboriginal and Torres Strait Islander peoples.
2. Following the co-design of the Voice, the Australian Government consider legislative, executive and constitutional options for its establishment.
3. The Australian Government supports the process of truth-telling.
4. The Australian Government consider the establishment of a National Resting Place for Aboriginal and Torres Strait Islander peoples’ remains.