The politics of inclusion: the right of self-determination, statutory bills of rights and indigenous peoples.

• Jurisdiction: Australia
• Date: 01 December 2010
• Author: Lino, Dylan

[Two relatively recent and overlapping developments potentially offer a new direction for the Indigenous self-determination project, which has been marginalised by Australian governments in recent years: first, the trend towards the domestic protection of international human rights through statutory bills of rights in Australian jurisdictions; and second, the burgeoning recognition of the right of self determination for Indigenous peoples at the level of international law. This paper critiques the right of self-determination as it would operate under the kind of statutory bill of rights that predominates in Australia. The central argument is that enshrining the right of self-determination in a statutory bill of rights would be an ineffective guarantee of Indigenous self-determination. After developing a normative account of Indigenous self-determination that emphasises the importance of the Indigenous-state relationship, this paper suggests that two things are problematic for Indigenous self-determination in the statutory bill of rights context. The first concerns the standard consultation processes leading up to the introduction of statutory bills of rights," the second concerns the unilateral state control that would exist over the right of self-determination under a statutory bill This paper concludes with a discussion of the problem of 'juridification' in relation to Indigenous self-determination.]

CONTENTS I Introduction II Background A Australian Developments in Statutory Rights Protection B The Right of Self-Determination at International Law III A Normative Model of Indigenous Self-Determination IV Evaluating a Statutory Right of Self-Determination against the Normative Model A Committee Processes and the Constitutive Aspect of Indigenous Self-Determination B The Indigenous-State Relationship and State Control over a Statutory Right of Self-Determination V The Human Rights Project and the Juridification of Indigenous Self-Determination VI Conclusion I INTRODUCTION

The concept of self-determination has for some years featured in the discourse and debate surrounding Indigenous affairs in Australia. From the early 1970s, the language of self-determination became part of the official lexicon in Indigenous policy settings and, under the self-determination rubric, some significant features were introduced into the legal and policy landscape in Indigenous affairs, including land rights, native title, and Indigenous representative structures and organisations. (1) It is fair to say that, within the government context, the fortunes of Indigenous self-determination have waned over the past decade or so, (2) displaced by new policy platforms and emphases, the most recent being the 'closing the gap' campaign) By contrast, in the context of advocacy by and on behalf of Aboriginal and Torres Strait Islander peoples, self-determination remains a prominent fixture, regularly forming a part of and shaping Indigenous peoples' political demands.

Two relatively recent developments have offered a new momentum to, and possibly a new direction for, the Indigenous self-determination project. The first is the trend towards the domestic protection of human rights through statutory bills of rights in Australian jurisdictions. The second development--which overlaps with the first--is the burgeoning recognition of the right of self-determination for Indigenous peoples at the level of international law, representing a significant shift in the way that right is conceptualised. Within this context, the inclusion of the right of self-determination in statutory bills of rights has been flagged as a potential means of securing self-determination for Aboriginal and Torres Strait Islander peoples.

This paper provides an evaluation of the right of self-determination as it would operate under the kind of statutory bills proposed and enacted in Australia. My central argument is that enshrining the right of self-determination in a statutory bill of rights would be an ineffective guarantee of Indigenous self-determination. To contextualise the discussion, I begin by providing an overview of developments in Australia in relation to statutory bills of rights, and a summary of the international law on the right of self-determination. Following this, I elaborate a normative account of Indigenous self-determination which emphasises the importance of the terms and dynamics of the Indigenous-state relationship. This model of Indigenous self-determination is then used to assess the inclusion of a right of self-determination in a statutory bill of rights. Two problems, I suggest, confront Indigenous self-determination in the statutory bill of rights context: the

standard consultation processes leading up to the introduction of statutory bills of rights; and the unilateral state control that would exist over the right of self-determination under a statutory bill. I conclude with a discussion of the problem of 'juridification' in relation to Indigenous self-determination.

II BACKGROUND

A Australian Developments in Statutory Rights Protection

In the past decade or so, there has been a trend in the Australian discourse on rights protection, and, to a lesser extent, in practice, in favour of statutory bills of rights. Since 2002, community consultation processes as to how human rights could be better protected have taken place in the Australian Capital Territory ('ACT'), Victoria, Tasmania, Western Australia and most recently at the Commonwealth level. (4) In each of those jurisdictions, the relevant consultation committee recommended that a statutory bill of rights be introduced. (5) To date, this has resulted in the enactment of statutory bills of rights in both the ACT and Victoria. (6) The Tasmanian government announced its intention in June 2010 to pursue a legislated bill of rights and began community consultations on a proposed model for that bill in October 2010. (7) In Western Australia, tentative initial support was given for additional human rights protection by the then State government. (8) However, there has since been a change in government and the new government's position is unclear. At the Commonwealth level, the federal government rejected a statutory bill of rights in April 2010, but committed to reconsidering the issue in 2014. (9)

Following the so-called 'dialogue model' of rights protection, the statutory bills that dominate the agenda in the Australian context are not entrenched and instead seek to promote a rights 'conversation' between Parliament, the executive and the judiciary. (10) This is seemingly in deference to the relatively high level of hostility in Australia to the strong-form legal protection of rights, such as constitutional protection. (11) Under the statutory dialogue model, which also exists in the United Kingdom and New Zealand, (12) a number of procedural safeguards are put in place to ensure that human rights are considered when laws are drafted, (13) policies formulated, (14) and administrative decisions taken. (15) The courts also play several roles in the 'dialogue': they can hear matters involving alleged violations of rights by public authorities; (16) they must as far as possible interpret legislation consistently with human rights; (17) and they may make 'declarations of incompatibility' ('declarations of inconsistent interpretation' in Victoria) where legislation cannot be construed in accordance with human rights. (18)

Ultimately, however, Parliaments rather than the courts have the last word on rights protection under the dialogue model. First, the courts cannot invalidate laws on the basis that they are rights-inconsistent. By issuing declarations of incompatibility, courts simply draw rights-inconsistencies to the attention of the legislature, which then may opt to amend legislation accordingly or simply leave it as is. Secondly, the dialogue model does not mandate that legislation be compatible with human rights. (19) What the dialogue model does require is, amongst other things, that a statement of compatibility with human rights be prepared and tabled for each Bill introduced into Parliament. (20) The legislation may be rights-consistent or rights-abrogating; legally, it does not matter either way so long as the legislation is accompanied by a statement of compatibility. (21)

In debates over which rights should be protected in statutory bills of rights, the right of self-determination has been raised for possible inclusion. All five Australian consultation committees were supportive of a right of self-determination, though only in the ACT and Tasmania was it recommended that the proposed statutory bill include such a right. (22) Additionally, many submissions to the consultation committees recommended that the right be included. (23) This general level of support has not been reflected in either the Human Rights Act 2004 (ACT) ('HRA (ACT)') or the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), both of which have omitted the right. (24) That being said, both Acts could still be amended to include the right of self-determination--in fact, the four-year review of the Victorian Charter, being conducted in 2011, must look specifically at whether incorporation of the right would be worthwhile. (25) In contrast to the HRA (ACT) and the Victorian Charter, the bill of rights proposed by the Tasmanian government has specifically included a general right of self-determination. (26) Whether this right will make it into Tasmanian legislation remains to be seen. Should the Western Australian or Commonwealth governments put forward a statutory bill of rights in the future, it is unlikely that a right of self-determination would be included, at least initially, given that the consultation committees in those jurisdictions recommended against its inclusion. (27)

While the right of self-determination is a general right of all peoples under international law, it...