Common(wealth) Knowledge #75: Can international law provide a solution to the Voice?
Debate over creating an Indigenous body to make representations to the government has led some to consider international treaties instead.
With the defeat of the Indigenous Voice to Parliament referendum, supporters of the Yes campaign have begun considering alternatives to a constitutional voice. One question has been repeatedly brought up, adopting the United Nations Declaration on the Rights of Indigenous Peoples into Australian law. However, such a decision would likely be found unconstitutional by the High Court.
Before the Voice campaign, Labor had begun to look into adopting UNDRIP into Australian law. This was put on hold by the referendum, which Senator Lidia Thorpe criticised Labor for doing, arguing that UNDRIP is a lot more important than the Voice.
With the Voice defeated, the more conservative elements of the No campaign have distanced themselves from Lidia Thorpe, and have criticised her proposal, with some going so far as suggesting that this was part of some broader World Economic Forum-backed conspiracy.
Similar claims were made about the existence of Aboriginal Corporations, which were rejected here.
The use of the ‘race power’ of Section 51(xxvi) of the Australian Constitution to create a Voice would be controversial, because although the power can be used to ‘benefit’ a race, there is no judicial consensus on what ‘benefit’ encompasses.
However, it has been suggested that Section 51(xxix), the ‘external affairs power,’ could be used to adopt UNDRIP into law.
UNDRIP is a declaration of the rights that indigenous peoples, including Aboriginal and Torres Strait Islander peoples, must hold. For example, Article 8 prevents an assimilation of indigenous peoples that destroys their culture. For some, this form of ‘cultural genocide’ applies to policies like the Stolen Generations. Articles 18 and 19 also refer to a right to make representations to governments and participate in decision-making processes, in much the same way as the Voice would.
UNDRIP is generally considered to be very broad, like its counterpart, the United Nations Declaration of Human Rights.
It has been well-established since at least Commonwealth v Tasmania (1983), also known as the Tasmanian Dam Case, that international treaties can become domestic laws. This is based on the ‘obligations’ those treaties impose on Australia.
And this emphasis on ‘obligations’ is why UNDRIP cannot be adopted into law.
UNDRIP, like the Universal Declaration of Human Rights, is a ‘declaration,’ rather than a ‘convention.’
This difference goes beyond just the use of different language; the different language means that they have different purposes.
United Nations ‘conventions’ are a form of ‘treaty,’ which is the international equivalent of legislation, whereas a ‘declaration’ merely declares an intention or desire of the United Nations and the international community. ‘Declarations’ are nothing more than a policy or a press release, stating the United Nations’ stance on a subject.
A policy statement is not legally binding, but legislation is. Thus, a declaration is not binding, but a treaty is binding.
The focus of the external affairs power, when it comes to international law, is on obligations. If a declaration is not binding, then it does not impose any obligations on Australia, and so cannot be turned into law.
After he retired from the High Court, Michael Kirby, the first openly gay judge on the High Court, took on an active role in the same-sex marriage campaign. He was no different on the court, seen as one of, if not the most, progressive judges to sit on its bench, belonging to the ‘activist’ school of judicial thought.
Yet even he opposed adopting declarations into law. In Newcrest Mining (WA) Ltd v Commonwealth (1997), he said that he supported interpreting Australian law to be consistent with international law, wherever possible, yet he also discussed the applicability of UDHR:
“That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia’s domestic law, still less of its Constitution.
Only one judge in Commonwealth v Tasmania (1983), Justice Murphy, supported broadening this power to anything beyond treaties imposing obligations, and this has been resoundingly rejected since.
Apart from this, all other High Court judges, regardless of where they fall on the political spectrum, have all applied the law in the same way, at least when it comes to treaties and declarations.
State governments have begun implementing Voice-like bodies, but they have other law-making powers that the Commonwealth government does not possess. With the external affairs power available and the race power in doubt, the Commonwealth would likely need a cooperative scheme with the States.
Unless a treaty like UNDRIP passes the UN and is ratified and adopted by Australia, the Commonwealth government cannot turn to the external affairs power for help to create a Voice.
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Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Commonwealth v Tasmania (1983) 158 CLR 1;  HCA 21.
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513;  HCA 38.
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/Res/61/295 (2 October 2007).