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Wednesday, 19 March 2008
Page: 1269


Senator BARTLETT (1:46 PM) —I would like to speak today about the rights of Indigenous Australians and some of the political dynamics surrounding them. I have said on the record a number of times, in this place and outside it, that I welcomed the success of the previous Indigenous affairs minister, Minister Brough, in delivering a lot more political focus and eventually some added financial resources to the issues affecting at least some Indigenous Australians. But what I strongly criticised was the way that he went about it, and particularly the way the debate was conducted.

I use the example of the Northern Territory intervention, where an issue that is almost universally supported—trying to reduce and, ideally, eliminate child abuse, an area where surely we all had a common goal—turned into one of the most divisive issues possible because anybody who disagreed with the way that was put forward to achieve that goal was immediately vilified as being willing to support child abuse. That sort of thing not only derails rational debate; perhaps even more importantly it reduces the chances of effective action, and that means the people who suffer most from such a heated and divisive debate are the Indigenous people themselves, who, at least in regard to all of our words, we are seeking to assist.

All of us can share some blame for that at various times, and I think it is a reminder to all of us to continually try to keep debate around substance and fact and keep it focused not just on evidence based information but on what we are meant to be debating for, which is to improve the situation. We are not actually debating these issues to gain political points, to boost somebody’s leadership stocks or to shift the political dynamic or the political agenda. I have been concerned that since the election, even though 99 per cent of the Northern Territory intervention is continuing, including parts of it that I do not support, we have still been seeing disagreements over very small parts of it being used as ideological, political footballs. To me that just allows the continuation, firstly, of misunderstandings about the facts around a lot of those issues. Secondly, it means that the focus on ensuring that we deliver results for Indigenous people gets diverted into another big ideological stoush of political point-scoring, a political football match.

I am seeing some examples of that also appearing in regard to the UN Declaration on the Rights of Indigenous Peoples. Certainly anybody, including the Liberal Party, has the right to make an argument saying that this declaration should not be supported. But I think it is important to ensure that that debate is at least conducted with regard to the facts. An article by Glenn Milne in the Australian of 10 March details the views, at least as reported, of the shadow Attorney-General—a fellow Queenslander, Senator Brandis, who I note is now labelled as one of the leading moderates in the opposition. Labels are an interesting thing, so I will leave others to decide the accuracy or otherwise of that. It is not something I have noted particularly in the past, but maybe all these things are relative. Even in the postmodern world of the Liberal Party these days, maybe these things are relative and perhaps Senator Brandis is a leading moderate. It does not really matter. To be serious again—for those who could not tell, I was being flippant—I am interested in the substance of this debate.

I noted in Mr Milne’s article he said that the UN declaration ‘slipped under the Australian political radar’ last year, that the then shadow minister, Ms Jenny Macklin, indicated Labor’s support for the UN Declaration on the Rights of Indigenous Peoples in a statement in September last year. Well, she did do that. We did also have an hour-long urgency debate in this chamber on 10 September last year. I know the level of interest by the press gallery in proceedings in the Senate in September last year probably matches their level of interest now, which would be shown by the usual level of attendance in the press gallery at the moment, which, for those who cannot see, is zero. They are all, no doubt, getting ready to stampede across to the House of Representatives for the daily vaudeville show of question time. But the fact is that this was debated in the Senate at length. Positions were openly put on the record then.

I would also say it was debated the year before, when I raised similar issues about the importance of the declaration, from my point of view and that of the Democrats, and the importance of engaging with these issues. The declaration was adopted by the United Nations General Assembly by a vote of 143 to four. The four countries that voted against were Australia, New Zealand, Canada and the US. Canada is described in the article in the Australian as ‘soft left’, which might come as news to their conservative government these days—but, again, I guess labels do not really matter. It is about the substance of the issue.

Mr Milne also said that, unlike the 143 countries that supported the declaration, the four that opposed it have substantial indigenous populations. Australia does, that is true, but it is not just the US, New Zealand, Canada and Australia that have indigenous populations, I can assure you. There are significant indigenous populations, whatever definition you use, in a large number of countries around the world. They were heavily involved in the development of this declaration over many years—I am not sure of the precise number, but I know it was certainly more than a decade—of toing and froing, discussion, debate and development amongst indigenous peoples themselves, through international fora, from a multitude of countries.

Indigenous peoples, for example particularly in parts of Latin America, exist in far greater proportion—much greater—than here in Australia. I would also point out that Taiwan has a significant indigenous population and actually reserves seats for its indigenous people in its parliament. But Taiwan, of course, is excluded from the UN, so it probably did not get a say on this particular declaration. Another point to make in passing is that Taiwan’s people and views are not able to be represented at all, but I shall not digress down that path particularly. The fact is that indigenous peoples are present in a huge number of nations around the world; all but four of them did not oppose the UN Declaration on the Rights of Indigenous Peoples.

The key point that needs to be made is that, more so than with conventions and treaties, this declaration is a non-binding document. So, sure, you can raise concerns about the content—and obviously the content is not meaningless or there would be no point in agreeing to it—but the simple fact is that it is not binding. The previous speaker referred to Senator Mason’s extensive experience in the international arena, so as he is in the chamber he may be able to correct me, but my understanding is that this is not actually like a treaty, where Australia can now ratify it or sign on to it; it is a declaration that has been passed via a vote of the UN General Assembly, similar to something being passed by this chamber. The new Australian government can now say: ‘We support this. We support the principles; we will seek to meet the benchmarks contained within the declaration.’ But, as I understand it, we cannot actually sign on to it or ratify it.

So really all we are talking about is whether or not Australia as a government or parliament or Australian bodies such as the Human Rights and Equal Opportunity Commission seek to use the content of this declaration as benchmarks. Given that it has been adopted by the UN General Assembly regardless of Australia’s opposition, there is certainly a valid argument that we still have a requirement to at least assess what we do against those benchmarks. We can still vary from them, as we always can with any international instrument, but it is there—it now exists.

A key point that I wish to make, though, is the need to avoid misinformation not just about the impact of the declaration but about the meaning of its content. The false argument has been made—it was made in this chamber last year and by former Minister Brough in justifying the previous government’s opposition to this—that supporting this declaration opened up the possibility of its content overriding Australian law. That is simply not the case. It is not the case even with a convention; it is doubly—triply—not the case with something that is not a convention nor a treaty but just a declaration, in this case on the rights of indigenous peoples. So there is no potential for Australian law to be overridden. There is no potential for customary law to be placed above national law. For customary law under any forum to be recognised in Australia it has to actually be part of our law, as it has been from time to time in very small parts through decisions made by this parliament. We could have the debates in this parliament and in the Australian community in the context of where it might be applied and whether it is appropriate. It is simply wrong to say that this declaration opens up the possibility of, for example, Indigenous customary law overriding Australian law. That cannot happen. The only way it can happen is if we as a parliament choose to make it happen—and then it would not be overriding our law; it would be incorporating and recognising it as part of our law.

There is a lot of misinformation about what the principle of self-determination means. I concede that it is a much debated concept, even in international law. People more learned than me would be able to give dissertations on that. But the simple fact is that the UN Declaration on the Rights of Indigenous Peoples does not do anything new with regard to self-determination. In fact, it does little new at all. It predominantly pulls together components of a range of existing treaties and conventions that have already been adopted. With regard to self-determination, that principle is actually one of the first—I think the very first—articles of the International Covenant on Civil and Political Rights. So, unless the moderate Senator Brandis is suggesting that we disassociate ourselves from the International Covenant on Civil and Political Rights with regard to the principle of self-determination, I would suggest that to create an argument about self-determination being mentioned in this convention is wrong-headed, if not misleading.

I know the principle of self-determination in the international arena is routinely ignored by countries left, right and centre, as with many international conventions—that is an interesting phenomenon and another aspect of the debate. But, either we sign up to these things, at least with the pretence of recognising them as important principles, albeit ones which in the realpolitik of international diplomacy cannot always be adopted as much as we would like—and one could rattle off any number of regions and countries where that is an issue—or we withdraw from the conventions. Frankly, in the interests of intellectual consistency and honesty, I would prefer people argue that we withdraw from conventions or principles if they do not agree with the treaty in question rather than adopt them and then ignore them, as governments of all persuasions in many nations regularly do.

To return to the core point, and one that has to be made: the Democrats obviously strongly support—it has been on the record a number of times in this chamber and in the community—the UN Declaration on the Rights of Indigenous Peoples. It sets a benchmark and sets goals for us to measure ourselves against. I do not mind people debating whether those goals are appropriate or whether they should be reconsidered, but let us not misrepresent what the declaration does and let us not suggest that, by recognising what is actually a principle established in a number of international conventions already with regard to self-determination, it somehow opens up some prospect of secession, customary law overriding other laws, the possibility of a raft of compensation measures, the right of veto over mining exploration or any of those furphies. They are furphies; let us just put them to bed. Let’s have a debate around the substance and keep in mind the core goal: to improve the situation of Indigenous Australians, and I suggest that includes properly recognising and consulting with them.