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Much law, scarce justice (Part 2)

Part Thirty-two of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

To be sure that there is no doubt about the intellectual infamy of terra nullius, the Declaration makes clear that:

“1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.” (Art. 26)

As to the preservation of Indigenous traditional laws, Art. 27 provides that “States shall establish and implement, in conjunction with Indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.”

There is an explicit provision for reparation, in Art. 28, whereby “1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.”

Against the vandalism which followed the occupation, Art. 29 guarantees that “1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for Indigenous peoples for such conservation and protection, without discrimination. 2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of Indigenous peoples without their free, prior and informed consent. 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of Indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.”

And the following article commands that:

“1. Military activities shall not take place in the lands or territories of Indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake effective consultations with the Indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.”

Indigenous peoples will “1.  … have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.” (Art. 31)

“Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”

Art. 33 provides that “1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

And, by Art. 34, “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.”

“Article 35 Indigenous peoples have the right to determine the responsibilities of individuals to their communities.”

Most importantly, “1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right. (Art. 1 and 2)

Equally important is Art. 37, whereby, “1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

Finally, by

“Article 38 States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”,

pursuant to Article 39 “Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration,” and by the operation of Art. 40

“Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.”

“Article 41 The Declaration charges the organs and specialised agencies of the United Nations system and other intergovernmental organisations to contribute to the full realisation of the provisions through the mobilisation, inter alia, of financial cooperation and technical assistance – the ways and means of ensuring participation of Indigenous peoples on issues affecting them to be established.

Article 42 The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialised agencies, including at the country level, and States are to promote respect for and full application of the provisions and to follow up the effectiveness of the Declaration.”

The rights recognised by the Declaration constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world. (Art. 43) and such rights and freedoms recognised herein are equally guaranteed to male and female indigenous individuals. (Art. 44)

By Article 45 Nothing in the Declaration may be construed as diminishing or extinguishing the rights that Indigenous peoples have or may acquire in the future.

Finally, by Art. 46, nothing in the Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. In the exercise of the rights enunciated in the Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in the Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society. The provisions set forth in the Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. (Art. 46, 1, 2 and 3).

Just about every single article of the Declaration clashes with the theory and practice of the Commonwealth and every State of Australia for the past two hundred and twenty-nine years! No Indigenous person who reads the articles of the Declaration could be satisfied with the moving cris de coeur of Noel Pearson: “Breaking the heart”, The Saturday Paper, 28 October-3 November 2017, at 14 and/or the unforgiving, razor-like criticism by Megan Davis: “In bad faith”, The Saturday Paper, 4-10 November 2017, at 7.

Talking that way to Englanders such as those who represent the Westminster System Australian-style is a total waste of time.

But there is something, quite a lot actually, which can be said. It comes from what is known as the International Bill of Human Rights, which is made up of:

1) the Universal Declaration of Human Rights (1948)

2) the International Covenant on Civil and Political Rights (1966)

3) the International Covenant on Economic, Social and Cultural Rights (1966), with the

4) the Optional Protocol to the International Covenant on Civil and Political Rights, and

5) the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

Australia agreed to be bound by the I.C.C.P.R. on 13 August 1980, subject to certain reservations. The Covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of February 2017, the Covenant had 169 parties and six more signatories without ratification.  Article 2(2) of the I.C.C.P.R. requires Australia to take all necessary legislative and other measures to give effect to the rights in the Convention.

The I.C.C.P.R. has two Optional Protocols. An optional protocol supplements the original convention with additional obligations.

On 25 September 1991 Australia agreed to be bound by the First Optional Protocol to the I.C.C.P.R. This means that the United Nations Human Rights Committee can hear complaints from individuals who allege that the Australian Government has violated their rights under the I.C.C.P.R. However, the findings of the Human Rights Committee are not enforceable.

On 2 October 1990 Australia agreed to be bound by the Second Optional Protocol to the I.C.C.P.R. The purpose of this protocol is for States to eliminate the death penalty.

Economic, social and cultural rights include the right to an adequate standard of living, the right to education, the right to fair wages and the right to safe working conditions.

Article 2(1) of the I.C.E.S.C.R. requires States to take steps, including legislative measures, to achieve the ‘progressive realisation’ of I.C.E.S.C.R. rights. This requires that States only demonstrate in good faith the fulfillment of the rights over time within their capacities. For example, it is assumed that where States have inadequate resources to ensure free education is provided, they will work towards achieving this goal.

The United Nations Committee on Economic Social and Cultural Rights monitors compliance with the I.C.E.S.C.R. and provides guidance on how countries should interpret the I.C.E.S.C.R.

An increasing number of countries, across all continents and legal systems, have incorporated judicial review of economic, social and cultural rights. These include Argentina, Bangladesh, Canada, South Africa, Finland, France, India, Latvia, Mauritius, Nigeria, and most countries in Central and Eastern Europe.

On 10 December 1975 Australia agreed to be bound by the I.C.E.S.C.R. The I.C.E.S.C.R. does not, however, form part of Australia’s domestic law. The Australian Human Rights Commission Act 1986 gives the Aboriginal and Torres Strait Islander Social Justice Commissioner specific statutory functions in relating to protecting and promoting the human rights of Indigenous and Torres Strait Islanders. In the performance of these functions the Social Justice Commissioner must have regard to a number of international declarations and conventions, including the I.C.E.S.C.R. (Australian Human Rights Commission Act 1986 s. 46C(1) and s. 46C(4)(a).) (Human Rights Explained: Fact sheet 7:Australia and Human Rights Treaties).

Australia is also a party to other major human rights instruments, including:

1) the Convention on the Prevention and Punishment of the Crime of Genocide

2) the Convention on the Political Rights of Women

3) the International Convention on the Elimination of all forms of Racial Discrimination

4) the Convention on the Elimination of all forms of Discrimination against Women

5) the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

6) the Convention on the Rights of the Child

7) the Convention on the Reduction of Statelessness

8) the Convention relating to the Status of Stateless Persons

9) the Convention Relating to the Status of Refugees

10) the Slavery Convention of 1926

11) the Supplementary Convention on Slavery

12) the Convention on the Rights of Persons with Disabilities.

There are problems, of course. To begin with, Australia does not generally agree to be bound by a human rights treaty unless it is satisfied that its domestic laws comply with the terms of the treaty.

While Australia has agreed to be bound by these major international human rights treaties, they do not form part of Australia’s domestic law unless the treaties have been specifically incorporated into Australian law through legislation. Some provisions of a treaty may however already exist in national legislation. For instance, many of the provisions contained in the Convention on the Rights of People with Disabilities are mirrored in Australian law through the Disability Discrimination Act 1992.

This principle reflects the fact that agreeing to be bound by a treaty is the responsibility of the Executive in the exercise of its prerogative power, whereas law making is the responsibility of the Parliament.

Section 51(xxix) of the Australian Constitution, the ‘external affairs’ power, gives the Commonwealth Parliament the power to enact legislation which implements the terms of those international agreements to which Australia is a party.

A long presentation was necessary, if for no other reason, to show that the most solemn proclamations have been available for seventy years, comes 2018.

During that time – three generations – Australian governments have been ‘Liberals’ in anti-workers Coalitions, or Neo-liberal – except of course the two tormented Whitlam Governments.

Words of liberation have been recited on occasions by people who were more interested in the echo of their voice than in the voice of the people. On one side is the process of liberation of the world, meaning by that something wider than ‘the Anglo-sphere’, more human than ‘the free world’ – as defined by the crude interests of Wall Street and S.W.1 which seem to be the only worthy consideration on the other side.

On one side are the Vietnam-lies by Menzies, perhaps better remembered for his rhetoric about ‘the forgotten people’ and the Iraq-lies by Howard with his pedestrian ‘comfortable and relaxed’ exhortation; on the other the fire-in-the-belly of those liberating declarations – from the Universal of 1948 to the ‘No-more-like-before’ of 2007. And, incidentally, Howard lied yet again, in extremis, offering some form of “lasting recognition in our constitution of the first Australians” (Howard’s speech, delivered at Brisbane, Qld, 12 November 2007) having sent an Australian delegate to vote against the Declaration on 13 September 2007!

The voice of ‘reasonableness’ was heard once again recently. The other ‘Voice’ – the one of the Uluru Statement, expressed in lyric cris de coeur by Noel Pearson and lashing precision by Megan Davis (there are others, of course: “Coalition contempt for our first peoples”, The (Melbourne) Age, 5 November 2017, at 34) – will not be silenced if ‘the wretched of the Earth’ take their chance.

In the process they could draw comfort from Professor Patience’s view of the issues and of the state of the joint. And the joint is occupied by characters usually very comfortable and relaxed, sporty types (don’t you know?), always ready to compete for the World Doormat Cup.

“It is surely ironic – noted Patience – that soon after Australia secured a seat on the United Nations Human Rights Council the Turnbull government rejected a proposal for an advisory body that could help address the appalling Indigenous human rights record of successive governments in this country. Turnbull’s limp excuse for rejecting the idea was that it would not win the necessary support it would need at a referendum to provide the appropriate constitutional framework for the advisory body.”

This is not the sole problem, but a fundamental one. It comes with others.

“Politics in contemporary Australia displays ever-congealing levels of moral backwardness. In addition to our cruelty to asylum seekers on Manus Island and Nauru, we have pig-ignorant vested interests blocking the need for a coherent national energy policy, the reactionary stupidity of the same-sex marriage postal survey, mindless support for tax-payers to underwrite the monster Adani coal mine, persistent ideological obsessions with neo-liberal economic policies confecting the worst social inequality ever, indifference to the dying of the Great Barrier Reef, and a foreign policy framed by Australia being “joined at the hip” with the United States.

But the over-riding moral backwardness of contemporary Australian politics is glaringly evident in the country’s failure first to understand, and then to sensitively and effectively address this country’s disastrous human rights record on Indigenous affairs.”

“The on-going treatment of Indigenous Australia by white Australia is a deep evil in the heart of this country’s politics. The one measure against which Australia should be – and is – being judged regionally and internationally is the way we so callously disregard the human right of First Australians.”

“The Turnbull government’s rejection of this historically unprecedented proposal is evidence of its moral backwardness. Turnbull should have seized on this idea and made it a signal policy defining his prime ministership.”

“This country urgently needs to come to grips with the human rights issues affecting our Indigenous peoples.”

And in one last savaging sentence Patience concluded:

“It’s time for this country to awake in fright from its moral backwardness. And the first thing we need to act on is fully restoring the human rights of every Indigenous Australian, forever.” (Allan Patience, Is Australia a morally backward society?, 30 October 2017, John Menadue – Pearls and Irritations).

Continued Friday with: Much law, scarce justice (Part 3)

Previous instalment: Much law, scarce justice (Part 1)

Dr Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.

 


1 comment

  1. wam

    Needs a few reads but “agreeing to be bound by a treaty is the responsibility of the Executive in the exercise of its prerogative power, whereas law making is the responsibility of the Parliament.”
    wow what loophole? The ability to say yes yes yes with the absolute confidence that the real answer is no but you can blame someone else.
    Why would 250000 Australians dob in a fellow Australian they think gets government help by rorting the system?
    Why are Aborigines treated as ‘they’ but ‘englanders’ are ‘individuals?
    Why is there no opt out/in conditions on the basic cards?
    I think the rabbott exemplifies the amoral nature of religious teaching with respect to Aborigines, women and sex.

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