Spring 2017

As good as it gets or as good as it could be?

Benchmarking human rights in Australia

Professor Larissa Behrendt is Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. Prof. Behrendt will deliver the keynote speech at the Society’s National Congress 2017 on Saturday 7 October on the topic ‘A sign of the times’. The following excerpt is from a previous speech Prof. Behrendt gave on the topic of human rights and self-determination for Aboriginal Australians. The points Prof. Behrendt makes in the speech are still relevant a decade on, especially in light of the recent Uluru Statement from the Heart, which called for the establishment of a First Nations Voice enshrined in the Constitution

The role of a rights framework

In the current conservative climate, there has been, in some quarters, a failure to appreciate the important role that respect of rights plays in balancing the freedom of the individual from the tyranny of government. Discussion of rights tends to be dismissed as the folly and luxury of the elite who are out of touch with the realities of the day-to-day lives of the masses.

This simplistic rhetoric fails to appreciate the important role rights play in the small details of people’s lives. Rights such as access to education, adequate health care, employment, due process before the law, freedom of movement and equality before the law target the very freedoms that an individual needs to be able to live with dignity. They are precious and they are inherent and should not be given merely at the benevolence of government.

Bills of Rights are not about curtailing the rights of the majority. And they are not about giving more power to judges. Bills of Rights are aimed at ensuring a better balance between the rights of individuals against the state and as such are more often an infringement on the rights of governments than the rights of people. Thomas Jefferson wrote: ‘The natural progress of things is for liberty to yield and governments to gain ground’. [1] It is as true today as when he penned those words in 1788, the year in which the colonisation of Aboriginal Australia began. And Aboriginal people have experienced in recent years the infringement of human rights that cannot be rectified.

Native title that has been extinguished will never be regained, cultural heritage that has been destroyed will never be recovered and failure to access adequate health services and opportunities for basic standards of education are difficult, sometimes impossible, to rectify. In fact, these losses are a reminder of why it is important to have rights protections in place when society moves away from valuing the importance of the rights of the vulnerable.

And it is these experiences of the infringements of the rights of the vulnerable that need to remain our focus. It is not enough to say that our human rights standards are better than other countries who have more brutal and systemic abuses of rights than those that occur on Australian soil. I firstly question why it is worse for an Aboriginal child to experience third world levels of health care than for the child actually living in the third world. And secondly, it is not enough that we are better than the worst offenders on a human rights report card; we should be the best society that we can be.

As has been attributed to Thomas Paine:

When it shall be said in any country in the world, ‘My poor are happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am the friend of its happiness’: when these things can be said, then may that country boast of its constitution and its government. [2]

In this way, a human rights framework can be a benchmark. And while there is more acceptance of a rights framework that protects civil and political rights, there has been less support for economic, social and cultural rights. The latter have often been deemed too difficult to legislate into a rights framework. But is it too difficult? I would estimate that eradicating illiteracy from Australia would be a harder task than erasing it from India. The Indian Constitution was recently changed to include a right to education and during my visit their highest court deemed that this meant that the states, regardless of their economy, were required to put adequate resources into the education system and ensure that all children had an education (there are an estimated 10 million children who do not go to school!). This gives states in India a duty to put more resources into education and so prioritise it over other things. While the rights agenda is out of favour with our federal government, it is interesting to see how other countries, with far deeper socioeconomic issues to tackle than us, are using a simple right like the right to education to make a difference. It is a strategy that puts the emphasis on government to make the issue a priority.

One final aspect of a rights agenda that needs to be addressed is the constant claim within political rhetoric that ‘self-determination’ has failed so we need to move on to other ideas. The ‘self-determination’ that failed was a government agenda that weakly promoted Indigenous participation but fell far short of Indigenous aspirations for self-determination. It was the era of ATSIC and most of the rhetoric implies that ATSIC failed. Indigenous disadvantage might not have ended in the ATSIC era. Of course, ATSIC did not have fiscal responsibility for health and education. They were still the responsibility of federal and state and territory governments. ATSIC was a convenient scapegoat. But it was also a strong advocate on where the governments of all levels failed to meet basic human rights standards. And many think that success goes further to explain why they were dismantled.

‘Self-determination’ as a policy failed because, while it changed the dominant philosophy of paternalism to the notion of self-management, it co-opted Indigenous people into decision making processes but did not seek to alter structures or institutions. It did not seek to give Aboriginal people, at the grassroots level, capacity to make decisions over the policies that affected them and the programs that were delivered into their community. In short, the policy of ‘self-determination’ did not go far enough in devolving power from government to Aboriginal people.

This means that, while it is true to say that ‘self-determination’ as the Labor Party implemented the policy was a failure, it is not true to say that self-determination as a fundamental human rights principle failed. In the sense that Indigenous people aspire to both self-determination and the right as understood under international law, no government has ever attempted to use it as a basis for policy. Despite that, too many commentators are using the catch-phrase that ‘selfdetermination has failed’ and making the additional, erroneous, step that there is proof that the rights agenda has failed. There is no such proof. There has never been a time when self-determination in its true sense was the key basis for the approach to Indigenous policy.

And self-determination is not just a principle or ideology. If governments are concerned to implement research-based policy, they would do well to look at similar jurisdictions like Canada where models of self-government based on a stronger adoption of the principle of self-determination are leading to better socio-economic outcomes for Aboriginal communities. It is proven that the more involved Indigenous people are with decision-making over policy and programs and their implementation, the more effective they are likely to be. It is this principle that should provide a cornerstone for a research-based approach to policy.


[1] Jefferson Looney (ed.), The Papers of Thomas Jefferson: Retirement Series (2004).

[2] Thomas Paine, Rights of Man (1984).

Further reading

Read the article in full at: http://bit.ly/2xB5LKx

To view more of Prof. Behdrendt’s work please visit http://bit.ly/2vO7BFS

You can also listen to her show on ABC Radio http://ab.co/2vNiyaK

Prof. Larissa Behrendt is a Eualeyai/Kamillaroi woman. She is the Director of Research at the Jumbunna Indigenous House of Learning and Chair of Indigenous Research at the University of Technology, Sydney. She is a barrister, writer and filmmaker and is the host of Speaking Out on ABC Radio.

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