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2019-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Lidia Thorpe)
UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES BILL 2022
OUTLINE
1. This Bill provides for measures to enact the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australian law.
2. The Bill is in recognition of Australia’s endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP.
3. The intention of the Bill is to address Australia’s lack of UNDRIP’s implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP.
4. The purpose of the Bill is to recognise and ensure that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples.
5. The Bill is further in recognition of the rights of Indigenous peoples enhancing harmonious and cooperative relations between the State and Indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.
6. All doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.
7. Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.
8. The Bill reaffirms that Indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind.
9. The Bill recognises the urgent need to respect and promote the inherent rights of Indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.
10. The Bill recognises the urgent need to respect and promote the rights of Indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States.
11. The Bill is based in the conviction that control by Indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs.
12. It recognises that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.
13. The Bill is in recognition of the contribution of the demilitarisation of the lands and territories of Indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world.
14. The Bill recognises in particular the right of Indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child.
15. The Bill is based on the idea that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and States.
16. It affirms the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.
17. Nothing in this Bill may be used to deny any peoples their right to self-determination, exercised in conformity with all applicable laws.
NOTES ON CLAUSES
Clause 1: Short Title
18. This clause provides for the Act to be cited as the United Nations Declaration on the Rights of Indigenous Peoples Act 2022.
Clause 2: Commencement
19. Subclause 2(1) provides for the whole of the Act to commence on the day after the Act receives Royal Assent.
20. The note following the table in subclause 2(1) confirms that this table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
21. Subclause 2(2) confirms that any information in column 3 of the table in subclause 2(1) is not part of this Act. Information may be inserted in column 3, or information in it may be edited, in any published version of this Act.
Clause 3: Schedules
22. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.
Clause 4: Objects of this Act
23. This clause outlines the objects of this Act as ensuring that Indigenous peoples have the right to the full enjoyment of collective and individual human rights, as was intended through the United Nations Declaration on the Rights of Indigenous Peoples itself.
24. This clause is construed in full accordance with Indigenous peoples’ right to self-determination. Further understanding of the implications and nature of this objective can be drawn from the Preamble of the Declaration as well as the purpose of the Bill included in the outline of the Bill within this Explanatory Memorandum.
Clause 5: Simplified Outline of this Act
25. This clause summarises the Act as establishing a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples by the Commonwealth Government.
26. The clause outlines that the actions through which the Commonwealth Government is to achieve the implementation of the United Nations Declaration on the Rights of Indigenous Peoples are through ensuring that Commonwealth laws are consistent with the Declaration and through preparing and implementing an action plan to achieve the objectives of the Declaration in Commonwealth law, policies and practice.
27. The clause further summarises the provision for the Prime Minister to present a report, each financial year, on the progress of actioning the implementation of the action plan and ensuring Commonwealth law consistency with the Declaration.
Clause 6: Interpretation
28. Sub-clause 6(1) confirms that ‘Declaration’ means the Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of the United Nations as General Assembly Resolution 61/295 on 13 September 2007, and that ‘Department’ refers to the Department of the Prime Minister and Cabinet.
29. Subclause 6(2) confirms that the Act’s intention is to uphold the rights of Indigenous peoples under Commonwealth, State and Territory laws and that nothing in the Act is to be used to deny, abrogate or derogate Indigenous peoples their right to self-determination or other rights.
30. Subclause 6(3) confirms that the application of the Declaration into Commonwealth law should immediately take place and nothing in this Act is to be construed as delaying it.
Part 2—Measures for consistency of laws and achieving the objectives of the Declaration
31. This clause outlines the responsibility of the Commonwealth Government to ensure that all laws of the Commonwealth are consistent with the Declaration. This process must involve consultation and cooperation with Indigenous peoples and should be guided by them, and includes the provision to take all necessary measures to achieve this objective.
Clause 8: Action Plan
32. Subclause 8(1) sets out the preparation and implementation of an action plan to achieve the objectives of the Declaration to be the responsibility of the Prime Minister.
33. Subclause 8(2) provides detail on how the action plan needs to be prepared and implemented. These processes need to occur in consultation and cooperation with the Australian Human Rights Commission (AHRC); be led by Indigenous peoples and prepared in consultation and cooperation with Indigenous peoples and requires their full free, prior and informed consent as in the spirit of the Declaration itself.
34. The AHRC, in The Social Justice Report 2010 lays out elements of Free, Prior and Informed Consent which should form the basis of this process and which the Prime Minister is to ensure are followed.
35. Subclause 8(3) clarifies that for the purposes of paragraph (2)(c) of the Act, in determining whether the action plan has been prepared and implemented with the free, prior and informed consent of Indigenous peoples, regard must be had to those elements.
36. A note to the subclause states that this document could, in 2022, be viewed on the AHRC’s website https://www.humanrights.gov.au.
37. Subclause 8(4) outlines the content of the action plan. These comprise measures to address current systemic shortfalls in ensuring the full rights of Indigenous peoples as outlined in the Declaration, through addressing injustices, combating prejudice and eliminating all forms of violence, racism and discrimination, including systemic racism and discrimination, against Indigenous peoples.
38. The action plan must further include proactive measures to promote mutual respect and understanding as well as good relations, including through human rights education.
39. The action plan is further to contain measures relating to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration, as well as measures related to monitoring its implementation and reviewing and amending it.
40. Subclause 8(5) requires the action plan to be completed within 2 years of the commencement of this Act.
41. Subclause 8(6) establishes that the action plan must be tabled in each House of the Parliament as soon as practicable after it is completed.
42. Subclause 8(7) outlines the responsibility of the Prime Minister to ensure a copy of the action plan is published on the websites of the Department, the Australian Human Rights Commission, and the National Indigenous Australians Agency.
43.
A copy of the action plan further has to be provided, by
the Prime Minister, to Diplomacy Training Program Limited and the
Indigenous Peoples’ Organisation Australia. The intention is
that these entities would then distribute the plan through their
networks and publish it on their websites.
44. Subclause 9(1) outlines the Prime Minister’s responsibility to prepare a report for each financial year about the measures taken under section 7 during the financial year, which is to ensure consistency of all Commonwealth laws with the Declaration; and the preparation and implementation of the action plan mentioned in section 8 during the financial year.
45. Subclause 9(2) requires for the annual reports to be prepared in consultation and cooperation with the Australian Human Rights Commission; and in a process led by, and in consultation and cooperation with, Indigenous peoples to ensure independence in the reporting as well as accountability towards Indigenous peoples.
46. Subclause 9(3) requires annual reports to be completed within 90 days after the end of the financial year.
47. Subclause 9(4) requires for a copy of the annual report to be tabled by the Prime Minister in each House of the Parliament within 15 sitting days of that House after the report is completed.
48. Subclause 9(5) outlines the responsibility of the Prime Minister to ensure a copy of the report is published on the websites of the Department, the Australian Human Rights Commission, and the National Indigenous Australians Agency.
49. A copy of the report further has to be provided, by the Prime Minister, to Diplomacy Training Program Limited and the Indigenous Peoples’ Organisation Australia. The intention is that these entities would then distribute the report through their networks and publish it on their websites.
Clause 10: Review of Annual Report
50. Subclause 10(1) clarifies that clause 10 applies to an annual report prepared under section 9 of the Act.
51. Subclause 10(2) outlines the review process of the annual report by the Australian Human Rights Commission.
52. The Australian Human Rights Commission is required, within 90 days of the annual report being tabled in accordance with subsection 9(4), to conduct a review of it and must present the Prime Minister with a written report of its review, as well as publish the report on its website.
53. Subclause 10(3) requires the Prime Minister to table a copy of the AHRC report in each House of the Parliament within 15 sitting days of that House after receiving the AHRC report.
54. Subclause 10(4) outlines the review process of the annual report by the Productivity Commission.
55. The Productivity Commission is required, within 90 days of the annual report being tabled in accordance with subsection 9(4), to conduct a review of it and must present the Prime Minister with a written report of its review, as well as publish the report on its website.
56. Subclause 10(5) requires the Prime Minister to table a copy of the PC report in each House of the Parliament within 15 sitting days of that House after receiving the PC report.
Schedule 1—Consequential Amendments
Productivity Commission Act 1998
Clause 1:
This clause provides for amendment of subclause 6(1)(g) of the Productivity Commission Act 1998 to be amended to insert a provision for Acts other than the Productivity Commission Act to confer functions on the Productivity Commission.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
United Nations Declaration on the Rights of Indigenous Peoples Bill 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the Bill
The Bill provides a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the Commonwealth Government.
The Bill is in recognition of Australia’s endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP.
The Bill intends to address Australia’s lack of UNDRIP’s implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP.
The Bill requires the Commonwealth Government to:
(a) take measures to ensure consistency between Commonwealth laws and the Declaration; and
(b) prepare and implement an action plan to achieve the objectives of the Declaration
(c) each financial year, prepare an annual review on the progress of (a) and (b).
Human rights implications
The Bill in its entirety positively engages human rights as it tries to address, to the extent possible provided by its content, that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, through recognising and ensuring that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples.
The Bill provides for the implementation of the UNDRIP to ensure Australia, in its law, policy and practice, complies with the UNDRIP, which the Commonwealth Government endorsed in 2009 but has not taken explicit action to advance. The Bill thereby positively advances the human rights of Indigenous peoples as outlined in the UNDRIP.
Conclusion
The Bill is compatible with human rights because it advances the human rights of Indigenous peoples.
[SENATOR LIDIA THORPE]