11 Human Rights

11.1 Introduction

It is a sad reality that all of the issues and challenges that Aboriginal and Torres Strait Islander communities confront on a day-to-day basis — including effective engagement, poverty, education, health, protection of culture and languages, incarceration rates and the protection of women and children — are human rights issues.¹

— Mick Gooda

The value of human rights is not in their existence; it is in their implementation.²

— Mick Dodson

Aboriginal and Torres Strait Islander peoples hold human rights in common with non-Aboriginal and Torres Strait Islander peoples, as well as holding rights unique to Indigenous peoples. Confronted with discriminatory laws and policies, many Aboriginal and Torres Strait Islander communities have sought to assert their interests by engaging with the international human rights system as a mechanism for trying to advance their rights and interests at the domestic level. Indeed, many of the justice issues raised throughout this Bench Book have been the subject of advocacy, and development, at the international level: deaths in custody, child removal, the Northern Territory Emergency Response, cultural heritage and climate change.

11.2 UN Declaration on the Rights of Indigenous Peoples

The UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) is currently the most authoritative articulation of the ‘minimum [human rights] standards for the survival, dignity and well-being of the indigenous peoples of the world’.³ UNDRIP codifies existing international law and ‘interprets how existing human rights obligations under international law apply to Indigenous peoples’, and the Australian Government has accepted that UNDRIP mirrors Australia’s ‘existing international obligations’.⁴ The key principles that underpin UNDRIP are:

self-determination and to freely determine political status and development priorities;

free, prior and informed consent and participation in decision-making;

non-discrimination and equality; and

respect for and protection of culture.⁵

UNDRIP was adopted by the UN General Assembly on 13 September 2007.⁶ For a long period, the Australian Government refused to ratify UNDRIP but did so on 3 April 2009. Since 2007, the Australian Government has increased its engagement with the UN system by ‘endorsing [UNDRIP]’, ‘extending an open invitation to all the UN Special procedures’ and ‘positive engagement in the Human Rights Council’s Universal Periodic Review (UPR) process’.⁷

The current mechanisms and procedures addressing Indigenous rights specifically include:

the UN Permanent Forum on Indigenous Issues;
the Expert Mechanism on the Rights of Indigenous Peoples; and
the Special Rapporteur on the Rights of Indigenous Peoples.

Other subject-focused mechanisms are also available (e.g. the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination).

11.3 Domestic Protection

Australia remains the ‘only liberal democracy not to have a national Act or Charter of human rights protection’.⁸ However, some legislative and common law protections exist for Indigenous peoples’ human rights, and some states and territories have legislated explicit protection for human rights. The general position is that international law is not part of Australian law unless it is ‘transformed’ and ‘incorporated’ somehow (this requirement is less demanding in relation to international customary laws because ‘by their nature they are less precise and generally have more vague obligatory standards than treaty law’) yet it remains ‘a legitimate and important influence on the development of the common law’.⁹ Nonetheless, due to the failure of respective federal governments to ‘legislate an enforceable requirement for government to consider people’s rights when making decisions’,¹⁰ the current framework remains a ‘piecemeal approach to human rights protection … not adequate to ensure rights and freedoms are properly respected, protected or promoted’.¹¹ This is concerning, given that ‘Australians know little about their human rights — what they are, where they come from and how they are protected’.¹²

A number of common law jurisdictions have formally incorporated UNDRIP into their domestic law with a resultant developing jurisprudence.¹³

11.3.1 State and Territory Human Rights Statutes

Substantive human rights statutes have been enacted in the Australian Capital Territory, Queensland and Victoria, all of which recognise the special importance or significance of human rights for Aboriginal and Torres Strait Islander peoples. For example, the Human Rights Act 2019 (Qld) states:

[H]uman rights have a special importance for the Aboriginal peoples and Torres Strait Islander peoples of Queensland, as Australia’s first people, with their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition and Ailan Kastom. Of particular significance to Aboriginal peoples and Torres Strait Islander peoples of Queensland is the right to self-determination.¹⁴

The various Acts recognise, within the lists of human rights, the ‘distinct cultural rights’¹⁵ sourced from UNDRIP.¹⁶ These rights are in addition to all other rights protected under the Acts.

Table 14 outlines the scope of the rights recognised under the Acts:

Table 14: Scope of State and Territory Human Rights Statutes

Human Rights Act 2004 (ACT) s 27(2)	Human Rights Act 2019 (Qld) s 28	Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19(2)
Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right — to maintain, control, protect and develop their — cultural heritage and distinctive spiritual practices, observances, beliefs and teachings; and languages and knowledge; and kinship ties; and to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.	Aboriginal peoples and Torres Strait Islander peoples hold distinct cultural rights. Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community — to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and to enjoy, maintain, control, protect and develop their kinship ties; and to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources. Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture.	Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community — to enjoy their identity and culture; and to maintain and use their language; and to maintain their kinship ties; and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

In addition to the rights set out in Table 14, as at 30 August 2024, the Human Rights Act 2004 (ACT) also recognises the right ‘to a clean, healthy and sustainable environment … without discrimination’.¹⁷ The International Court of Justice has recently considered the scope of this right.¹⁸

The mechanisms by which the respective Acts give effect to the human rights outlined within them share similarities and differences. All of the enactments require that ‘so far as it is possible’ all Acts of the enacting jurisdiction should be interpreted so as to be compatible with human rights.¹⁹ Only the Queensland Act contains a definition of ‘compatibility’; it requires either that ‘[an] act, decision or [statutory] provision … does not limit a human right … or limits a human right only to the extent that is reasonable and demonstrably justifiable’.²⁰

11.3.2 Proportionality

The ACT, Queensland and Victorian Acts allow for human rights to be subjected to ‘reasonable limits’.²¹ The Acts do not contain a definition of ‘limit’; however, in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) (‘Waratah Coal (No 6)’), the Court applied the definition from Black’s Law Dictionary of ‘a restriction or restraint’, with ‘restraint’ further defined as ‘[c]onfinement, abridgment, or limitation’.²²

The Victorian Court of Appeal considered ‘proportionality’ in the context of s 7 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), noting:

The context within which each provision conferring a human right must be construed includes s 7(2). However, the existence of s 7(2) does not distort the process of statutory construction by mandating that provisions conferring a human right — with or without internal limitations — be given either an overly narrow or an overly generous interpretation. Each provision must be given the meaning that its text, context and purpose — assisted in appropriate cases by international jurisprudence — require.²³

The proportionality approach has also been characterised as ‘a harmonious mechanism to deal with issues of scale and importance in relation to human rights’.²⁴ In Waratah Coal (No 6), this test or analysis was applied ‘by construing the rights in the broadest possible way having regard to their text, context and purpose, taking into account s 13, without allowing it to distort the process of interpretation’.²⁵ In considering any limitation to human rights, the importance of preserving the human right, and the nature and the extent of the limitation are all to be weighed in a ‘balancing act’.²⁶

11.3.3 Causation

In determining whether something ‘limit[s] a human right’, all that is required is a ‘logical and rational connection’ or a ‘sufficient connection’.²⁷ The causal link between the act and harm does not require a materialised harm for the act to constitute a ‘limit’.²⁸

In Waratah Coal (No 6), the Queensland Land Court had to consider whether, in applying the proportionality test required by the Human Rights Act 2019 (Qld), there was a sufficient causal relationship between the grant of approvals for a coal mine project and the harms of climate change.²⁹ Waratah Coal argued that the majority of emissions from the project were scope 3 emissions from the combustion of mined coal, and that the approvals sought by it did not cause such emissions because they did not authorise combustion (which would occur in the locality where the coal was ultimately burnt).³⁰

Waratah Coal also argued that causation was ‘indirect and tenuous’, that there was ‘no certainty about the level of harm that [would] occur’, that there were ‘numerous variables’ that would determine the harm, and that the combustion of the coal ‘would not be the sole or a substantial contributor to that harm’.³¹ The Court rejected that argument, finding:

Climate change at any level will limit the right to life to some extent and is already doing so. Approving the project would contribute to foreseeable and preventable life-terminating harm. The combustion of the Project coal would make a material contribution to the risk of climate scenario 2 being materialised and narrows the options available to achieve climate scenario 1, which is consistent with the Paris Agreement goals.³²

11.3.4 Onus and Proof

It has been held in relation to s 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) that there is a stringent standard of justification. In Re Application under the Major Crimes (Investigative Powers) Act 2004, Warren CJ set out the following points about onus and proof:

‘the onus of “demonstrably justifying” [a] limitation in accordance with s 7 resides with the party seeking to uphold the limitation’;
given what is required to ‘be justified, the standard of proof is high’;
‘[i]t requires a “degree of probability which is commensurate with the occasion”’; and
‘the issue for the court is to balance the competing interests of society, including the public interest, and to determine what is required for’ a person to obtain or retain the benefit of the rights recognised or bestowed by the statute.³³

In considering the intersection of the right to life with the impacts of the effects of climate change, questions of temporality (i.e. whether there can be a breach of the positive obligation in relation to the right in circumstances where there may yet be time for the state to take positive measures) have been held to be best determined through this analysis.³⁴

An outstanding issue remains in relation to the Charter of Human Rights and Responsibilities Act 2006 (Vic) — namely, whether, in determining if a statutory provision is ‘compatible with human rights’,³⁵ the court is concerned with whether interference with the human right is justified under s 7. In Momcilovic v The Queen, the High Court was divided on this issue.³⁶ The issue does not arise in Queensland.³⁷

The Victorian Act also protects the right to an equal opportunity to enjoy the human rights protected by it.³⁸

In addition to these provisions, various Acts exist at both the federal and state or territory levels that require governments to consider the consistency of proposed laws with human rights. Broadly, the ACT, Queensland and Victorian human rights Acts adopt similar operative provisions to accomplish this.³⁹

The Acts create an obligation for the production of a ‘statement of compatibility’⁴⁰ with human rights for each Bill presented in Parliament, though failure to do so does not affect the validity, operation or enforcement of the law.⁴¹ A similar obligation exists at the federal level in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) in relation to Bills and disallowable instruments, though the definition of ‘human rights’ in the federal Act does not include rights contained in UNDRIP.⁴²

In addition, the ACT, Queensland and Victorian Supreme Courts may issue declarations that particular legislation is ‘not consistent’ with a human right. The declaration is to be provided to the Attorney-General and, through them, to either the Parliament or responsible Minister (along with the Attorney-General’s written response). Declarations, however, do not affect the validity, operation or enforcement of the law, or affect anyone’s rights or obligations (including to create a new right).⁴³

The Acts also make it unlawful for a ‘public authority’ to ‘act in any way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right’.⁴⁴ However, damages for such breaches are not available as a remedy.⁴⁵

11.3.4.1 Meaning of ‘Arbitrary’

Some of the rights in the ACT, Queensland and Victorian Acts prohibit an ‘arbitrary’ interference with the right.⁴⁶ In Victoria, the Court has interpreted ‘arbitrary’ as meaning ‘capricious, or [resulting] from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought’.⁴⁷

11.3.4.2 International and Foreign Materials

The ACT, Queensland and Victorian Acts each provide that international law and foreign law sources may be considered in interpreting the Act, though it has been noted that ‘courts should pay due regard to the different legal and constitutional settings for those decisions’.⁴⁸ In both Victorian and Queensland case law, General Comments of United Nations bodies’ have been considered in interpreting the Acts.⁴⁹

11.4 Specific Rights

11.4.1 Cultural Rights

Article 15 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)⁵⁰ not only requires states to refrain from interfering with the rights of individuals and groups to participate in cultural life, it also imposes positive obligations on states to take steps to ensure participation. The position in international law is summarised well in the report of the Special Rapporteur in the Field of Cultural Rights on her mission to Brazil:

Ensuring the cultural rights of persons belonging to specific cultural communities who differ from dominant majorities (Afro-descendant communities, indigenous peoples and other groups) implies providing them with the possibilities for bringing their own individual and collective cultural viewpoints to the shaping of cultural and social developments, while preserving in parallel those elements of their culture that they desire to maintain. It also implies promoting and protecting the rights of minorities and indigenous peoples recognized at the international level, which protect minorities and indigenous peoples’ culture understood as a way of life, including their language, religion and system of beliefs, traditions, customs and other artistic and cultural manifestations.⁵¹

It has been said that both international and domestic formulations of cultural rights ‘recognise the holistic nature of indigenous culture, incorporating spiritual, material, and economic relationships with land, waters, and resources’,⁵² though only the Human Rights Act 2019 (Qld) reflects the right set out in Article 29(1) of the UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’)⁵³ to ‘conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources’.⁵⁴

Cultural rights are recognised at international law, and in some domestic contexts, as ‘collective and intergenerational’.⁵⁵ For example, the judicial development of the content of the principle of intergenerational equity in Environmentally Sustainable Development principles mandates consideration of how a development or proposal could impact the capacity of future Indigenous communities to practise culture into the future.⁵⁶ As Gimuy Walabuara Yidninji man Juritju Fourmile explained in evidence in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) (‘Waratah Coal (No 6)’):

We as Indigenous people, First Nations people don’t just think about one generation or ourselves. We think about the generations that come after us, those that come before us as well. We learn their lessons and we take on their lessons and their knowledge. Their trials and errors tell us about what’s to come, and we are here as a conduit to tell the next generation about what’s to come, the changes here on country. Our stories change. We still tell our stories. They just become more modern now. Like, we use English instead of our language in some cases, just to get that message across, all right, and so it is heard. The significance just by standing here on this ground in this country here, my people were massacred not far from here. Skeleton Creek, their heads were put on stakes and we were then forced out of our traditional homelands in our country. Climate change is forcing us off of our traditional homelands now and the events that are happening now. Where is my daughter going to go fishing later on when all the creeks dry up? Where is she going to go when she can’t go into the bush because it’s too hot and the rainforest dies off? She can’t then pass those stories down to the next generation. I’m telling her now about all these bats dying, and her story to her children later on and the next story that they tell them is about how, ‘Well, my dad told me the bats died and now we don’t see any bats’. It’s just a story that we pass on. Until one day they might see a bat and that bat then becomes terres, that becomes a new story, because we have lost so many bats due to these climate events and these weather changes, torrential downpours, all these heatwaves that are coming through here. It’s not only just the bats. It’s the trees. Those trees are connected to this land. We as people are connected to those trees. They die, we die. Think of it holistically, the bigger picture, you know? If — I’m young. I’m only 25 years old and I’ve been brought into this. I’ve been born into this. I’ve been born into people’s past mistakes, and hopefully we can correct them, because if we can’t correct them, what’s the — what’s — what’s the point for the next generation coming through? What choice do they have? Are they going to be able to look after this land correctly? Will they have the tools to look after this land correctly?⁵⁷

The Human Rights Act 2019 (Qld) protects cultural rights and Indigenous cultural rights in separate provisions,⁵⁸ in contrast to the human rights legislation used in the ACT and Victoria.⁵⁹ The specificity of s 28 of the Human Rights Act 2019 (Qld) is consistent with international jurisprudence on human rights law. The Queensland Act goes further than the ACT and Victorian legislation by including the rights to ‘enjoy’, ‘maintain’, ‘control’, ‘protect’ and ‘develop’ certain cultural rights.⁶⁰ International jurisprudence indicates that rights to ‘strengthen’ and ‘develop’, as opposed to maintaining cultural rights, places a positive duty on states. Section 28 creates six discrete cultural rights, including the rights to identity and cultural heritage, language, kinship, relationship with land, and environment⁶¹ and the right to not be subjected to assimilation and destruction.⁶²

In addition, it has been held that the use of the plural, ‘peoples’, ‘recognises the multiplicity of societies, and therefore traditions and customs within the broad rubric of “Aboriginal” and “Torres Strait Islander”’.⁶³ In interpreting s 28, the Queensland Land Court characterised the section as recognising the

deeper truth … that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.⁶⁴

The Court also recognised how

a group’s vulnerabilities can intersect with more than one human right, compounding the human rights implications of an act.

Increased temperatures already hamper the efforts of the First Nations parents to teach their children about their sea country. If, as adults, these children are displaced from their country, that will risk severing their relationship to country and culture. That intersection of rights and impacts for First Nations children is an additional consideration for this right.⁶⁵

11.4.2 Right to Self-Determination and Free, Prior and Informed Consent

The right to free, prior and informed consent (‘FPIC’) is an element of the recognised right to self-determination of all Aboriginal and Torres Strait Islander peoples and is consolidated in UNDRIP. Article 32 is of particular significance, requiring the Australian Government to

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.⁶⁶

Although there are numerous definitions and debates about FPIC, the UN Food and Agricultural Organization⁶⁷ has defined the concept of FPIC as follows:

Free simply means that there is no manipulation or coercion of the Indigenous peoples concerned and that the process is self-directed by those affected by the project.
Prior implies that consent is sought sufficiently in advance of any activities being either commenced or authorised, and time for the consultation process to occur must be guaranteed by the relevant agents.
Informed suggests that the Indigenous peoples concerned receive satisfactory information on the key points of the project, such as its nature, size, pace, reversibility and scope as well as the reasons for it and its duration. This is the most difficult term of the four, as different groups may find certain information more relevant. The Indigenous peoples should also have access to the primary reports on the economic, environmental and cultural impacts that the project will have. The language that is used must be understood by the Indigenous peoples concerned.
Consent is not defined but is granted or withheld after a process that involves consultation and participation. However, mere consultation by itself is not a substitute for actual consent.⁶⁸ The UN Working Group on Business and Human Rights notes that Indigenous peoples ‘should determine autonomously how they define and establish consent’.⁶⁹

While the Australian Government has committed to protecting the right to self-determination for Indigenous persons, and the related right to FPIC,⁷⁰ many — if not all — Aboriginal and Torres Strait Islander peoples have argued that at no time since colonisation have Indigenous peoples ever been afforded a true right to provide free, prior and informed consent to acts of the Australian state that affect them:

To recognize the right to self-determination is to accept that as Indigenous Peoples we can and should decide what can take place on our lands. A number of First Nations have accused Australian governments of failing to properly consult them over development proposals. Proscribed minimum standards set out in the UNDRIP are often ignored by governments. Historically, First Nations’ territories and resources in Australia have been constantly used without our consent.

…

Free, prior and informed consent has become customary in international law and should be consistently applied to bring a greater balance and place limitations on Australian law regarding the laws of First Nations Peoples. Consultation and the process of free, prior and informed consent, protocols of international law, should be engaged in during any dealings with First Nations Peoples’ territories. Nonetheless, according to First Nations law, the destruction of the natural world cannot be consented to; it would be unlawful to do so. First Nations Peoples cannot consent to ecocide in our lands and natural world environment, it would be equivalent to our own genocide. First Nations have the authority to say ‘no’ to the destruction of our lands and natural world. In Australia, First Nations do not, however, have the power or the mechanisms to support our authority.⁷¹

Moreover:

When strategy rests in Indigenous hands, it better reflects the interests, values, vision, and concerns of the Indigenous group that will be affected, and not those of non-Indigenous government bureaucrats, funders, or other external bodies. The focus is on what community members think is important and what they know works.

Self-determination increases accountability to the community. When decision makers must face the consequences of their decisions — positive or negative — the quality of decisions improves.

Such services are better placed to find the people who fall through the cracks, to actively bring people in through the doors, to work across agencies through informal networks and understand community dynamics and the appropriate cultural leadership.⁷²

Yet, while ‘Aboriginal and Torres Strait Islander peoples, industry groups and government bodies are all calling for FPIC to be enshrined in Australian legislation’,⁷³ Australian governments have not done so.

The right sees some recognition in s 3 of the Aboriginal and Torres Strait Islander Act 2005 (Cth) which states that the objects of the Act include ‘(a) to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them [and] (b) to promote the development of self-management and self-sufficiency among Aboriginal and Torres Strait Islander peoples’ (noting that objects clauses, while informing the meaning of other operative provisions, do not create legal norms).⁷⁴

The right is also specifically referenced in s 50(4A) of the Water Act 2007 (Cth), though the provision is limited to requiring a decision-maker to consider whether the water sharing plan under the Murray-Darling Basin Plan ‘supports opportunities for Indigenous people to participate in determining and developing priorities and strategies for the development or use of Basin water resources, including opportunities for participation that incorporates free, prior and informed consent’.⁷⁵

The ineffective legal protection of the right to FPIC was most recently demonstrated in the legally compliant destruction by Rio Tinto of the 46,000-year-old Juukan Gorge rock shelters on 24 May 2020. This act was unlawful under Puutu Kunti Kurrama and Pinikura laws and caused immeasurable cultural and spiritual loss, as well as profound grief for the Puutu Kunti Kurrama and Pinikura peoples, but remained entirely legal within the Australian statutory context.⁷⁶

11.4.3 Right to Life

The right to life is drawn from Article 6(1) of the International Covenant on Civil and Political Rights (‘ICCPR’)⁷⁷ and is protected in the ACT, Queensland and Victorian human rights Acts.⁷⁸ The right confers both a positive obligation to take steps to ensure the right is protected, and a negative obligation to refrain from conduct that causes the arbitrary deprivation of life. The right has been considered in depth in international jurisprudence, with the UN Human Rights Committee referring to it as the ‘supreme right’.

In General Comment No 6, the Committee recalls that the right to life ‘is the supreme right, from which no derogation is permitted’.⁷⁹ And in General Comment No 31, it further recalls that states parties have a positive obligation to ensure the protection of individuals against violations of ICCPR rights, which may be committed not only by its agents, but also by private persons or entities.⁸⁰

The Committee also refers to ‘its jurisprudence’, according to which both a ‘criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6’.⁸¹ A violation of the ICCPR may therefore arise ‘as a result of a State Parties’ … fail[ure] to take appropriate measures … to punish, investigate or redress’ such a violation.⁸²

Both domestically and internationally, Indigenous peoples have used the right to life to advocate for effective reform to address failed laws and policies that have led to Indigenous deaths in custody. In 2020, the Victorian Coroner considered that the right to life was engaged in her role in the inquiry into the death in custody of Aunty Tanya Day, including the ‘positive measure to protect life through a comprehensive, thorough and independent death investigation process and … ensuring appropriate monitoring and supervision of people in detention and providing appropriate medical care.’⁸³

There have been two international complaints made to the UN Human Rights Committee.⁸⁴

11.4.4 Deprivation of Liberty and Humane Treatment

This right that all persons deprived of liberty must be treated with humanity and with the respect for the dignity of the human person is engaged anytime an individual is taken into custody or otherwise deprived of her liberty, as demonstrated in the inquest into the death of Aunty Tanya Day:

531. Ms Day was deprived of her liberty. In this investigation section 22(1) of the Charter [of Human Rights and Responsibilities 2006 (Vic)] appears to be engaged. Victoria Police is a Public Authority for the purposes of the Charter. Section 22(1) states:

‘All persons deprived of liberty must be treated with humanity and with respect for the dignity of the human person.’

532. Central to this right is that a person in detention is vulnerable. The right requires that public authorities take positive measures to ensure a detainee is treated with dignity and humanity, which includes adequate conditions such as access to medical services.

533. Ms Day had multiple vulnerabilities, including her extreme intoxication and her lack of balance. Ms Day’s deprivation of liberty meant she was completely dependent on police officers for her health needs with no capacity to help or look after herself. The minimum conditions of monitoring were not complied with. There was a culture of complacency regarding intoxicated detainees. As a person deprived of her liberty, I find that Ms Day was not treated with humanity and respect for the inherent dignity of a human person as required by the Charter.⁸⁵

11.4.5 Right to Health

The right to health⁸⁶ is a fundamental human right which provides that ‘every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity’.⁸⁷ It has been said to be ‘indispensable for the exercise of other human rights’.⁸⁸ Indigenous advocates have long pointed to the discrepancies in health outcomes for Indigenous peoples as demonstrating a need for realisation of this right for Aboriginal and Torres Strait Islander peoples in Australia. In the following quote, Yawuru man and former Social Justice Commissioner, Mick Dodson, spoke of what human rights means in Australia for Aboriginal and Torres Strait Islander peoples. He used the term ‘social justice’ but he might just as easily have spoken of human rights generally:

Social Justice is what faces you in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation. It is the ability to nourish your children and send them to school where their education not only equips them for employment but reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine employment and good health: a life of choices and opportunity; free from discrimination.⁸⁹

From 2005, the Close the Gap campaign for Indigenous health equality, led by Indigenous organisations working with non-Indigenous partner organisations, has advocated for improved health equality for Aboriginal and Torres Strait Islander peoples. The campaign, based on a human rights articulation of Indigenous health equality, has influenced the development of government policy and ‘recorded some significant achievements in the Aboriginal and Torres Strait Islander political landscape’.⁹⁰

Yet discrimination in health services in Australia remains, and both direct and systemic discrimination continues to be reported by Aboriginal and Torres Strait Islander peoples in health settings. For example, findings of the inquest into the death of Wiradjuri woman Naomi Williams, who died in Tumut Hospital on 1 December 2016, outlined evidence of systemic discriminatory health outcomes for Aboriginal and Torres Strait Islander peoples in Australia, as well as evidence from multiple community and family members that they felt they were regularly stereotyped by staff at the hospital.⁹¹ Naomi herself reported feeling she was regularly stereotyped as a ‘drug user’, a commonly held stereotype of Aboriginal and Torres Strait Islander people by non-Aboriginal and Torres Strait Islander people in Australia. The Coroner also concluded that the care the hospital staff gave to Naomi’s family, following her death, was neither compassionate nor appropriate.⁹²

11.4.6 Right to Move Freely

The right to move freely was considered in the context of the International Convention on the Elimination of All Forms of Racial Discrimination⁹³ in Gerhardy v Brown where it was described as including ‘protection by law from unnecessary restrictions upon one’s freedom of movement by the State or by other individuals’.⁹⁴ It extends to ‘movement without impediment throughout the State’, ‘a right of access to facilities necessary for the enjoyment of freedom of movement’ and ‘a right of access to places and services used by members of the public’.⁹⁵

Again, the right was also engaged in the inquiry into the circumstances of the death of Aunty Tanya Day. The Coroner found that her right was limited as a result of a discretion exercised by a train conductor who made decisions about her physical state based on racist stereotypes of indigenous peoples.⁹⁶

11.4.7 Right to Equality and to Be Free from Discrimination

The rights to equality and non-discrimination are contained in multiple binding international treaties.⁹⁷ Domestically, the ACT, Queensland and Victorian human rights Acts provide a right to ‘enjoy … human rights without discrimination’,⁹⁸ which prohibits discrimination in the enjoyment of other substantive human rights.⁹⁹ In Canada, this right has been interpreted as requiring the court to consider whether an Act imposes a burden or denies a benefit in a way that has the effect of reinforcing, perpetuating, or exacerbating disadvantage, including historical or systemic disadvantage.¹⁰⁰ In addition, multiple domestic statutes prohibit racial discrimination or racial hatred (see 10 Racial Discrimination).

11.4.8 Rights of the Child

Australia has assented to international obligations concerning the rights of children and young people as set out in the Convention on the Rights of the Child¹⁰¹ which pertain to Aboriginal and Torres Strait Islander children in addition to their rights under UNDRIP. These rights and associated rights find imperfect expression in the following provisions of the ACT, Queensland and Victorian Acts:

Human Rights Act 2004 (ACT) ss 10, 11, 13, 19, 20, 27, 27A;
Human Rights Act 2019 (Qld) ss 17, 19, 26, 28, 29, 33; and
Charter of Human Rights and Responsibilities 2006 (Vic) ss 10, 12, 17, 19, 21, 23, 25.

11.4.8.1 Criminal Justice Issues

Domestically, at least in the context of bail decisions, the power to impose conditions has been held to be ‘regulated by provisions which are designed to ensure that conditions which violate the human rights of the accused are not imposed’.¹⁰²

International law contains a number of standards setting out the human rights of children in regard to criminal justice, including the following:

International experts consider that international law does not accept the imposition of criminal responsibility below the age of 12 to be acceptable, and urges limits of 14 or 16.¹⁰³
The arrest, detention and imprisonment of children shall be used only as a measure of last resort and for the shortest appropriate period of time.¹⁰⁴ The more prolonged the detention, the more likely it is to be arbitrary. The European Court of Justice has held that detention may become disproportionate and therefore unlawful after only hours or days, depending on the circumstances of the case.¹⁰⁵
Solitary confinement of children is prohibited¹⁰⁶ including specifically when used for the purpose of punishment or as a behavioural management tool.¹⁰⁷
Spit hoods, restraint devices and the use of force are authorised only in exceptional cases.¹⁰⁸

The limited efficacy of such protections has been noted, however. Both the UN Special Rapporteur on the Rights of Indigenous Peoples and the Special Rapporteur on Torture characterise the criminal law systems across Australia as in ‘crisis’, with children suffering ‘undue harm to their safety and well-being, as well as to their educational and life prospects as a result of short-sighted approaches to youth criminality and detention’.¹⁰⁹

A recent complaint made by Aboriginal legal scholars and human rights law experts to the Committee on the Elimination of Racial Discrimination has highlighted the incompatibility of Australia’s current youth criminal justice systems with international human rights standards.¹¹⁰ The complaint sets out the various legislative enactments in states and territories across Australia that are contrary to international law standards:

In recent months alone:

Queensland introduced new laws [Making Queensland Safer Act 2024 (Qld)] that are incompatible with international human rights obligations, rights under the Human Rights Act 2019 (Qld) and the CTG [National Agreement on Closing the Gap], for example by subjecting children to adult penalties, removing the principle of detention as a last resort as a consideration in arrest, bail and sentencing of children and, remarkably, going as far as prohibiting courts from considering the principle when sentencing children;

Victoria passed what it describes as ‘the toughest bail laws in Australia’, which remove the principle of remand as a last resort for children, expand the range of offences subject to reverse onus bail tests that presume that bail will be denied and revive bail offences which have had a disproportionate impact on Aboriginal people, women, children and people experiencing disadvantage [Bail Amendment Act 2025 (Vic)];

The Victorian Government announced that more punitive bail changes will be progressed in mid-2025, which will ‘result in a further increase in the number of adult and youth offenders on remand’;

South Australia announced plans to make bail and sentencing laws for children more punitive;

the Northern Territory passed laws to reduce the minimum age of criminal responsibility from 12 years to 10 years, in contravention of the Convention on the Rights of the Child and the CTG;

the Northern Territory re-introduced the use of spit hoods, against the Royal Commission into the Protection and Detention of Children in the Northern Territory’s recommendations in 2017;

the Northern Territory announced that children detained in Mparntwe (Alice Springs) were being permanently moved to a prison in Garramilla (Darwin), approximately 1,500 kilometers away from their communities;

the Premier of New South Wales boasted of the alarming increases in the number of children in custody as a consequence of the new youth bails laws passed by his government despite the New South Wales Bureau of Crime Statistics and Research showing the number of young Aboriginal people in custody increased almost 22 per cent in the past year; and

Western Australia continues to detain Aboriginal children in an adult men’s maximum-security prison (‘Unit 18’) despite the recent deaths of two children who self-harmed.¹¹¹

In a number of Australian jurisdictions, children are regularly placed in solitary confinement, including for long periods and for the prohibited purpose of punishment or as a behavioural management tool. For example, in Queensland the Parliament suspended the operation of the Human Rights Act 2006 (Qld) in order to legislate to allow for children to be detained for longer periods, notwithstanding that courts in the State had already labelled the detention of some Aboriginal and Torres Strait Islander children for extended periods in solitary detention as ‘cruel’.¹¹² Similarly, spit hood and other restraint devices are used throughout Australia, including on children.¹¹³

11.4.8.2 Child Removal

International law confers upon Aboriginal and Torres Strait Islander children the right to their culture,¹¹⁴ the right to participate in decisions affecting them,¹¹⁵ and the right to grow up in their family and community¹¹⁶ and it prohibits their forced removal from families or communities.¹¹⁷

Again, Australia has been the subject of strident criticism by UN experts on breaches of the human rights of Aboriginal and Torres Strait Islander children. In her 2017 report the UN Special Rapporteur on the Rights of Indigenous Peoples noted on her visit to Australia that ‘the policies of the Government … fuel the escalating and critical … child removal rates of Aboriginal and Torres Strait Islanders’.¹¹⁸ The author noted the increasing rates of removal of Aboriginal and Torres Strait Islander children, the failure of Australia to comply with the Aboriginal and Torres Strait Islander Child Placement Principle and the urgent need to address the rate of removal.¹¹⁹

11.4.9 The Common Law Bill of Rights

Human rights talk reflects the longstanding tradition of natural law, with which English common lawyers were once very comfortable.¹²⁰

— Chief Justice James Spigelman

The common law has developed a series of principles of statutory interpretation that has been called a ‘common law bill of rights’.¹²¹ Courts have considered (in thinking about the application of the principle of legality) what ‘fundamental rights’ are recognised in the common law. In Momcilovic v The Queen, Heydon J listed the following rights as ‘illustrations’ of fundamental rights that may attract the principle:

freedom from trespass by police officers on private property;

procedural fairness;

the conferral of jurisdiction on a court; and

vested property interests …

rights of access to the courts;

rights to a fair trial;

the writ of habeas corpus;

open justice;

the non-retrospectivity of statutes extending the criminal law;

the non-retrospectivity of changes in rights or obligations generally;

mens rea as an element of legislatively created crimes;

freedom from arbitrary arrest or search;

the criminal standard of proof;

the liberty of the individual;

the freedom of individuals to depart from and re-enter their country;

the freedom of individuals to trade as they wish;

the liberty of individuals to use the highways;

freedom of speech;

legal professional privilege;

the privilege against self-incrimination;

the non-existence of an appeal from an acquittal;

and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.¹²²

11.4.10 Human Rights and Climate Change

Climate change impacts will impair or otherwise affect multiple human rights held by Indigenous peoples. In its July 2025 opinion, the International Court of Justice accepted that the protection of the environment is the precondition for the enjoyment of human rights,¹²³ stating: ‘The environment is the foundation for human life, upon which the health and well-being of both present and future generations depend’.¹²⁴

Among the non-exhaustive list of human rights that could be affected by the adverse impacts of climate change are the right to life; the right to health; the right to an adequate standard of living; the rights to privacy, family and home; and the rights of women, children and Indigenous peoples.¹²⁵

Australian courts have considered the impact of the adverse effects of climate change specifically in relation to Indigenous peoples in both Waratah Coal (No 6)¹²⁶ and Pabai v Commonwealth¹²⁷ (see 5 Climate Change).

11.5 Key Legislation

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

Human Rights Act 2004 (ACT)

Human Rights Act 2019 (Qld)

Charter of Human Rights and Responsibilities Act 2006 (Vic)

11.6 Case Summaries

Human Rights Committee, Views: Communication No 3624/2019, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’)

See the case summary in 5 Climate Change at 5.5.

Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025)

See the case summary in 5 Climate Change at 5.5.

Wallace v Tannock [2023] QSC 122

Keywords

Criminal law — Sentencing orders — Administrative law — Judicial review — Grounds of review — Procedural fairness — Existence of obligation — Relevant considerations — Failure to consider

Proceedings

These proceedings involved an application for judicial review by the Supreme Court of Queensland.

Facts

Leon Frederick Wallace, an Indigenous man, applied for a review of two aspects of a direction issued to him by Queensland Corrective Services (‘QCS’) pursuant to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

These directions were in relation to an incident where Wallace had disrespected a female NDIS support worker. Among other conditions, Wallace was only allowed to have male NDIS support workers (‘Support Workers Direction’) and he had to obtain approval from QSC to have any person at his home, including family members (‘Visitors Direction’).

Issues

The Court considered:

whether QSC provided the necessary procedural fairness to Wallace; and
whether the directions made by QSC were an unreasonable limitation of Wallace’s human rights under the Human Rights Act 2019 (Qld) (‘HR Act’).

Held

The Court found that Wallace was not provided with the necessary procedural fairness in the making of the directions. Callaghan J was of the view that ‘the directions were given, in effect, without notice, in circumstances where, had he been given the opportunity, he could and would have said something which was relevant and ought to have been taken into account’.¹²⁸

In relation to the Support Workers Direction, Callaghan J held that it was indeed a limitation on Wallace’s freedom of association under s 22(2) of the HR Act. However, this limitation was justified according to the criteria in s 13 of the HR Act as it was ‘calculated to mitigate the damage to society that may arise from the applicant’s offending against a female support worker’.¹²⁹ The Visitor’s Direction was similarly a limitation on Wallace’s freedom of association; however, it was not justified as it did not achieve the purpose of ensuring community safety.¹³⁰ Ultimately, the Court suggested that the directions may also have been unreasonable and therefore set them aside.¹³¹

Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21

See the case summary in 5 Climate Change at 5.5.

11.7 Further Reading

11.7.1 Bench Books

Judicial College of Victoria, Charter of Human Rights Bench Book

The Judicial College of Victoria’s Charter of Human Rights Bench Book is a guide for judicial officers on how to apply the Charter of Human Rights and Responsibilities Act 2006 (Vic). It provides practical guidance and legal commentary for courts and tribunals to interpret laws compatibly with human rights, handle cases involving rights, and consider the implications of the Charter when making or varying orders or engaging in other decision-making.

Judicial Commission of New South Wales, Equality before the Law Bench Book

The Equality before the Law Bench Book is written by the Judicial Commission of New South Wales and operates as a practical guide for judicial officers to administer justice equally to all communities and groups. The Bench Book provides judicial officers with statistics and information about the different values, cultures, lifestyles, socio-economic disadvantage and/or potential barriers in relation to full and equitable participation in court proceedings for nine different groups of people: Aboriginal and Torres Strait Islander peoples; people from an ethnic or migrant background; people with a particular religious affiliation; people with disabilities; children and young people; women; lesbians, gay men and bisexuals; people whose gender identity may be an issue; and self-represented parties.

11.7.2 Books

Gooda, Mick (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) 309

Mick Gooda, a descendant of the Yiman and Ghangulu peoples and former Aboriginal and Torres Strait Islander Social Justice Commissioner, discusses the unique human rights situation of Australia’s Indigenous peoples. The chapter argues that the denial of rights is a large contributor to the disparities in life expectancy and outcomes experienced by Aboriginal and Torres Strait Islander peoples in Australia.

11.7.3 Government Documents

Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024)

The Parliamentary Joint Committee on Human Rights Inquiry into the adequacy and scope of Australia’s national human rights protection system responded to the following terms of reference:

to review the scope and effectiveness of Australia’s Human Rights Framework and the National Human Rights Action Plan;

consider whether the Framework should be re-established, as well as the components of the Framework, and any improvements that should be made;

consider developments since 2010 in Australian human rights law (both at the Commonwealth and State and Territory levels) and relevant case law; and

consider any other relevant matters.¹³²

The report makes 17 Recommendations, including that the government re-establish and significantly improve Australia’s human rights framework (Recommendation 1) and introduce legislation to establish a Human Rights Act (Recommendation 2).

11.7.4 Journal Articles

Spigelman, James, ‘The Common Law Bill of Rights’ in Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 1

In this first lecture of the 2008 McPherson Lectures, Chief Justice Spigelman AC identifies a ‘common law bill of rights’. He sets out

the list of rebuttable presumptions of statutory interpretation that serve to protect rights by requiring clear and unambiguous language in any legislation before such a right can be abrogated. Furthermore, the right to a fair trial has been the source of many of the rules of criminal procedure and of the law of evidence, developed by judges over the course of several centuries. The full range of presumptions of the law of statutory interpretation, and principles and procedures of substantive content, have appropriately been categorised together under the general concept of ‘the principle of legality’, which is a unifying principle of the law.¹³³

Watson, Irene (Tanganekald and Meintangk), ‘Aboriginal Relationships to the Natural World: Colonial “Protection” of Human Rights and the Environment’ (2018) 9(2) Journal of Human Rights and the Environment 1199

Professor Watson belongs to the Tanganekald, Meintangk, Bunganditj and Potaruwutj First Nations peoples, of the South East of South Australia. In this article, Professor Watson describes ‘the efforts of First Nations, on the continent now known as Australia, to maintain their authority and existences in the face of neoliberalism and colonialism, which the British initially inflicted and under which we still survive’:

This article asks the questions: what underpins state claims to the title to Aboriginal lands? Does Australia renounce terra nullius and the racist principles and beliefs which make up such a doctrine? And finally does Australia acknowledge and support all ‘Peoples’ having an inherent right to self-determination, and as a component of such a right, that all ‘Peoples’ have a right to collectively care for country and to benefit from a relationship to land which sustains future generations of all Peoples? The possibility of a future for all life forms on Earth lies in the responses states might deliver to these questions.¹³⁴

11.7.5 International Materials

Indigenous and Tribal Peoples Convention (ILO 169) 1989

The ILO Convention (No 169) concerning Indigenous and Tribal Peoples outlines minimum standards for the rights of Indigenous peoples.¹³⁵ Australia has not ratified the Convention. It built upon an earlier convention, which was the first contemporary international human rights document that recognised Indigenous peoples as having distinct issues of international concern.¹³⁶

Importantly, ILO 169 develops the right of Indigenous self-determination. The preamble states the Convention’s intention to recognise

the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.

The right of self-determination itself is then defined in Article 7:

The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

The Convention also articulates a framework for consultation and participation rights. Article 6 imposes a broad consultation requirement:

In applying the provisions of this Convention, governments shall:

consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;

establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

Specific consultation requirements are set out in Articles 15, 17, 22, 23, 27 and 28. Article 16 expressly mentions the concept of ‘free and informed consent’:

Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

…

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)

The International Convention on the Elimination of All Forms of Racial Discrimination¹³⁷ is an international human rights treaty adopted by the United Nations, to which Australia became a ratifying party in 1975. The agreement provides a definition of racial discrimination and imposes an obligation on states to ensure equality for all, regardless of a person’s race or ethnicity. Two rights particularly relevant to the discussion contained in this chapter are:

Article 5(e)(iv) — the right to public health, medical care, social security and social services; and
Article 5(d)(i) — the right to freedom of movement and residence within the border of the state.

International Bill of Human Rights (Universal Declaration of Human Rights, International Convention on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights)

The International Bill of Human Rights consists of the Universal Declaration of Human Rights,¹³⁸ the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),¹³⁹ and the International Covenant on Civil and Political Rights (‘ICCPR’) and its two Optional Protocols. The ICCPR and the ICESCR build on the rights established in the Universal Declaration of Human Rights, and were adopted on 16 December 1966 by General Assembly Resolution 2200A (XXI). Both instruments protect rights such as freedom from discrimination, and the right to equality between men and women. The ICCPR recognises a suite of civil and political rights including, among other things, the right to life, freedom from torture, freedom from slavery, the right to liberty and security of person, the right to be treated with humanity in detention, the right to a fair trial, the right to recognition before the law, and the right to equality before the law. The ICESCR sets out economic, social and cultural rights including the right to work, the right to social security, the right to education, the right to health, the right to an adequate standard of living, and the right to take part in cultural life. Australia has signed and ratified both covenants.

The international covenants also represent early recognition of the right of self-determination, with Article 1 of each prescribing: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.

The ICCPR also protects the rights of Indigenous peoples in the following provisions:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law … the law shall prohibit any discrimination … on any ground such as race …

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

UN Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007)

The United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) is the most comprehensive and authoritative international instrument detailing the ‘minimum standards’¹⁴⁰ for the fundamental rights of Indigenous peoples. These rights are primarily guided by four key principles:

self-determination;
participation in decision-making;
respect for and protection of culture; and
equality and non-discrimination.¹⁴¹

UNDRIP operationalised the right of self-determination by enshrining the rights to participation, consultation, and consent, including through explicit recognition of the right to free, prior and informed consent (‘FPIC’).

Articles 3 and 4 define the right of self-determination:

Article 3

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

UNDRIP recognises FPIC as either a prospective right, or as the basis for providing Indigenous peoples with redress for past wrongs, in provisions on:

relocation (Article 10);
redress for cultural, intellectual, religious, or spiritual property taken (Article 11(2));
legislation affecting Indigenous peoples (Article 19);
redress for land taken (Article 28(1));
storage of hazardous waste on their lands (Article 29(2)); and
projects affecting their lands (Article 32(2)).

Article 40 places obligations on States to develop ‘just and fair procedures’ and ‘effective remedies for infringements of indigenous peoples’ human rights’:

Article 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.

Relevantly, specific cultural rights of Indigenous peoples include the recognition and preservation of their relationship to the natural environment and its resources. Article 29(1) provides the following:

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.

11.7.6 Submissions

Anaya, James, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/64/338 (4 September 2009)

This report was prepared and submitted to the General Assembly to identify the barriers to Indigenous peoples’ ‘full enjoyment of [their] human rights and fundamental freedoms’ as well as the ‘best practices in overcoming these obstacles.’¹⁴² Paragraph 68 affirms the influence and operation of UNDRIP, noting:

The United Nations Declaration on the Rights of Indigenous Peoples represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law. The product of a protracted drafting process involving the demands voiced by indigenous peoples themselves, the Declaration reflects and builds upon human rights norms of general applicability, as interpreted and applied by United Nations and regional treaty bodies, as well as on the standards advanced by ILO Convention No. 169 and other relevant instruments and processes.¹⁴³

McGlade, Hannah (Kurin Minang) and Megan Davis (Cobble Cobble), ‘Youth Justice in Australia’, Submission to the Committee on the Elimination of Racial Discrimination in McGlade and Davis v Australia, April 2025

This submission was prepared by Associate Professor Hannah McGlade from the Kurin Minang people in Western Australia and Scientia Professor Megan Davis, a Cobble woman of the Barunggam Nation and former expert member and Chair of the UN Permanent Forum on Indigenous Issues (2011–16).

It is an Early Warning and Urgent Action request made by the authors to the UN Committee on the Elimination of Racial Discrimination, seeking urgent international scrutiny of Australia’s youth justice system and its disproportionate impact on Aboriginal and Torres Strait Islander children.

The report discusses non-compliance with international human rights obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,¹⁴⁴ the Convention on the Rights of the Child (‘CRC’),¹⁴⁵ and the Optional Protocol to the Convention against Torture (‘OPCAT’)¹⁴⁶ and recommends immediate international intervention, full implementation of OPCAT and withdrawal of Australia’s reservation to the CRC on child detention with adults.

Shaw, Barbara (a Kaytetye, Arrernte, Warramunga and Warlpiri woman) et al, ‘Northern Territory Intervention’, Submission to the Committee on the Elimination of Racial Discrimination in Shaw v Australia, 28 January 2009

This submission was prepared by a number of Aboriginal people residing in prescribed areas of the Northern Territory subject to the measures of the Northern Territory Intervention.¹⁴⁷ It is a formal submission to the UN Committee on the Elimination of Racial Discrimination, alleging that the Northern Territory Intervention breached Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’).

The authors submitted that the legislation enacted by the Northern Territory Intervention and the actions by the state party (Australia) under that legislation constituted serious, massive and persistent racial discrimination against Aboriginal people in the Northern Territory and violated the ICERD.¹⁴⁸

The authors requested that the Committee adopt a decision recommending that the state party:

immediately take all necessary steps to bring to an end the exclusion of the Racial Discrimination Act [1975 (Cth)] in respect of the Northern Territory Intervention; and

undertake that there will be no further implementation of the Northern Territory Intervention until the Committee is satisfied that each of the measures is properly a ‘special measure’ for the purposes of the [ICERD].¹⁴⁹

¹Mick Gooda (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 309, 311.

²Mick Dodson (Yawuru), ‘Foreword’ in Amnesty International Australia, United Nations Declaration on the Rights of Indigenous Peoples (Declaration and Commentary, 2010) 1, 2.

³United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) art 43.

⁴Mick Gooda (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 309, 316, citing Jenny Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (Press Statement, 3 April 2009).

⁵Mick Gooda (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 309, 319.

⁶United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) art 43.

⁷Mick Gooda (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 309, 315.

⁸Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) 299 [9.8].

⁹Mabo v Queensland (No 2) [1992] HCA 23, [42] (Brennan J, Mason CJ and McHugh JJ agreeing).

¹⁰Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) 298 [9.3].

¹¹Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) 299 [9.7].

¹²Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) 298 [9.4], quoting Human Rights Consultation Committee, National Human Rights Consultation (Report, September 2009).

¹³See, eg, in Canada, United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 and its interpretation in Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680; Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10; Reference re An Act respecting First Nations, Inuit and Métis Children, Youth and Families, 2024 SCC 5; Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319.

¹⁴Human Rights Act 2019 (Qld) Preamble. A similar statement is contained in the Human Rights Act 2004 (ACT) and the preamble to the Charter of Human Rights and Responsibilities Act 2006 (Vic).

¹⁵Human Rights Act 2004 (ACT) s 27(2); Human Rights Act 2019 (Qld) s 28(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19(2).

¹⁶The various Acts also provide that international law, including judgments of foreign and international courts and tribunals, may be considered in the interpretation of the respective Act: see Human Rights Act 2004 (ACT) s 31; Human Rights Act 2019 (Qld) s 48(3); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(2).

¹⁷Human Rights Act 2004 (ACT) s 27C, inserted by the Human Rights (Healthy Environment) Amendment Act 2023 (ACT). The amending Act identifies the primary source of this right as the UN General Assembly resolution, The Human Right to a Clean, Healthy and Sustainable Environment, GA Res 76/300, UN Doc A/RES/76/300 (28 July 2022).

¹⁸Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) 112–13 [387]–[393].

¹⁹Human Rights Act 2004 (ACT) ss 30–1; Human Rights Act 2019 (Qld) s 48(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1).

²⁰Human Rights Act 2019 (Qld) s 8.

²¹Human Rights Act 2004 (ACT) s 28(1); Human Rights Act 2019 (Qld) s 13(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

²²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1335] (FY Kingham P), quoting Black’s Law Dictionary (11th ed, 2019) ‘limit’ (def 1).

²³Thompson v Minogue [2021] VSCA 358, [46] (Kyrou, McLeish and Niall JJA), quoted in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [85] (FY Kingham P).

²⁴Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1311] (FY Kingham P).

²⁵Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [86] (FY Kingham P), citing Human Rights Act 2019 (Qld) s 13.

²⁶Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21.

²⁷Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1345], [1352] (FY Kingham P).

²⁸Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1361].

²⁹Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1298]–[1383].

³⁰Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [24]–[26].

³¹Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1316] (FY Kingham P).

³²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1512] (FY Kingham P).

³³Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381, [147] (citations omitted). Section 13 of the Human Rights Act 2019 (Qld) was interpreted consistently with this reasoning by Martin J in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273.

³⁴Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1479].

³⁵Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32.

³⁶Momcilovic v The Queen [2011] HCA 34.

³⁷In contrast to the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 8 of the Human Rights Act 2019 (Qld) specifically refers to s 13 in defining when a statutory provision is ‘compatible with human rights’.

³⁸Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8.

³⁹Human Rights Act 2004 (ACT) ss 30, 32, 37; Human Rights Act 2019 (Qld) ss 4(f), 48; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 1(e), 32(1), 36.

⁴⁰See, eg, Human Rights Act 2004 (ACT) s 37. In the Act, the obligation falls on the Attorney-General but only arises in relation to a Bill presented to the Legislative Assembly by a Minister. See also Human Rights Act 2019 (Qld) s 38; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 28. In both Queensland and Victoria, the obligation arises in relation to any Bill introduced to a House of Parliament and falls on the Member introducing the Bill.

⁴¹Human Rights Act 2004 (ACT) s 39; Human Rights Act 2019 (Qld) s 42; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 29.

⁴²Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 3. A recent inquiry recommended that, in the absence of its recommended introduction of a Human Rights Act, the definition of ‘human rights’ in s 3 should be amended to include UNDRIP: Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) 324 [9.85].

⁴³Human Rights Act 2004 (ACT) pt 4; Human Rights Act 2019 (Qld) pt 3 div 3; Charter of Human Rights and Responsibilities Act 2006 (Vic) pt 3 div 3.

⁴⁴Human Rights Act 2004 (ACT) s 40B; Human Rights Act 2019 (Qld) s 58; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38.

⁴⁵Human Rights Act 2004 (ACT) s 40C(6); Human Rights Act 2019 (Qld) s 59(3); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 39(3).

⁴⁶See, eg, Human Rights Act 2004 (ACT) s 9(1): the right to life provides that no one may be ‘arbitrarily deprived of life’.

⁴⁷Thompson v Minogue [2021] VSCA 358, [55] (Kyrou, McLeish and Niall JJA).

⁴⁸Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [81] (FY Kingham P), citing Momcilovic v The Queen [2011] HCA 34, [37]–[38].

⁴⁹Castles v Secretary, Department of Justice [2010] VSC 310, [100]; Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1458].

⁵⁰International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

⁵¹Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed: Addendum — Mission to Brazil (8–19 November 2010), UN Doc A/HRC/17/38/Add.1 (21 March 2011) [66].

⁵²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1533].

⁵³United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) art 43.

⁵⁴Human Rights Act 2019 (Qld) s 28(2)(e).

⁵⁵Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1536].

⁵⁶Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, [199]; Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48; Williams v Minister for Planning (No 2) [2011] NSWLEC 62.

⁵⁷Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1563].

⁵⁸Human Rights Act 2019 (Qld) ss 27 (cultural rights), 28 (Indigenous cultural rights).

⁵⁹Human Rights Act 2004 (ACT) s 27; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19.

⁶⁰Human Rights Act 2019 (Qld) s 28(2).

⁶¹Human Rights Act 2019 (Qld) s 28(2).

⁶²Human Rights Act 2019 (Qld) s 28(3).

⁶³Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1517], discussing Human Rights Act 2019 (Qld) s 13. However, the plural is used also in s 27(2) of the Human Rights Act 2004 (ACT) and s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

⁶⁴Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1532] (FY Kingham P), quoting Love and Thoms v Commonwealth [2020] HCA 3, [289] (Gordon J).

⁶⁵Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1600]–[1601].

⁶⁶United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) art 32.

⁶⁷Food and Agriculture Organization of the United Nations, Free Prior and Informed Consent: An Indigenous Peoples’ Right and a Good Practice for Local Communities (Manual, 2016) 15–16.

⁶⁸Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead’ (2012) 16(1) International Journal of Human Rights 1.

⁶⁹Human Rights and Transnational Corporations and other Business Enterprises: Note by the Secretary-General, UN Doc A/68/279 (7 August 2013) [11].

⁷⁰Attorney-General’s Department (Cth), ‘Right to Self-Determination’ (Public Sector Guidance Sheet, January 2026).

⁷¹Irene Watson (Tanganekald and Meintangk), ‘Aboriginal Relationships to the Natural World: Colonial Protection of Human Rights and the Environment’ (2018) 9(2) Journal of Human Rights and the Environment 119, 134. Professor Watson goes on to provide a series of case studies.

⁷²Larissa Behrendt (Eualayai/Gamillaroi), ‘No More Just Tinkering at the Edges’ (Oration, Australian Human Rights Commission, 9 December 2022).

⁷³Joint Standing Committee on Northern Australia, Parliament of Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Final Report, October 2021) 193 [7.47].

⁷⁴See generally Janina Boughey et al, Public Law and Statutory Interpretation (Federation Press, 2nd ed, 2021) 256.

⁷⁵Water Act 2007 (Cth) s 50(4A)(b)(ii).

⁷⁶Joint Standing Committee on Northern Australia, Parliament of Australia, Inquiry into the Destruction of 46,000 Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia (Interim Report, December 2020).

⁷⁷International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6(1).

⁷⁸Human Rights Act 2004 (ACT) s 9; Human Rights Act 2019 (Qld) s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 9.

⁷⁹Human Rights Committee, General Comment No 6: Article 6 (Right to Life), UN Doc CCPR/C/21/Rev.1 (30 April 1982) [1].

⁸⁰Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) [8].

⁸¹See, eg, Human Rights Committee, Views: Communication No 1447/2006, UN Doc CCPR/C/95/D/1447/2006 (22 April 2009) [11.2] (‘Amirov v Russian Federation’); Human Rights Committee, Views: Communication No 1436/2005, UN Doc CCPR/C/93/D/1436/2005 (31 July 2008) [6.4] (‘Sathasivam v Sri Lanka’).

⁸²Human Rights Committee, General Comment No 6: Article 6 (Right to Life), UN Doc CCPR/C/21/Rev.1 (30 April 1982) [8].

⁸³Inquest into the Death of Tanya Louise Day (Coroners Court of Victoria, Deputy State Coroner Caitlin English, 9 April 2020) 30 [152]–[154].

⁸⁴Hickey v Australia, CCPR/C/111/D/1995/2010 (21 July 2014, which was held to be inadmissible by the Committee) and a 2021 complaint by the mother of David Dungay which remains outstanding.

⁸⁵Inquest into the Death of Tanya Louise Day (Coroners Court of Victoria, Deputy State Coroner Caitlin English, 9 April 2020) 30 [531]–[533].

⁸⁶International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 12. See also International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 5(e)(iv); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) arts 10(h), 11(1)(f), 12, 14(2)(b), 16(1)(e); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 24, 25; Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) arts 23(1)(c), 25.

⁸⁷Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12), UN Doc E/C.12/2000/4 (11 August 2000) [1].

⁸⁸Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12), UN Doc E/C.12/2000/4 (11 August 2000) [1].

⁸⁹Mick Dodson (Yawuru), Aboriginal and Torres Strait Islander Social Justice Commission (Report, 1993) 10.

⁹⁰Mick Gooda (Yiman and Ghangulu), ‘Human Rights and Australia’s Indigenous People’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 309, 327.

⁹¹Inquest into the Death of Naomi Williams (Coroner’s Court of New South Wales, Deputy State Coroner Harriet Grahame, 29 July 2019).

⁹²Inquest into the Death of Naomi Williams (Coroner’s Court of New South Wales, Deputy State Coroner Harriet Grahame, 29 July 2019).

⁹³International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

⁹⁴Gerhardy v Brown (1985) 159 CLR 70, 102 (Mason J).

⁹⁵Gerhardy v Brown (1985) 159 CLR 70, 102 (Mason J).

⁹⁶Inquest into the Death of Tanya Louise Day (Coroners Court of Victoria, Deputy State Coroner Caitlin English, 9 April 2020) 43 [233].

⁹⁷International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 2(1), 14, 24, 25, 26; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 2(2); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 1, 2, 4, 5; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 2; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) arts 2, 3, 4, 15. See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (noting that discriminatory treatment can contribute to treatment or punishment being found to be ‘degrading’).

⁹⁸Human Rights Act 2004 (ACT) s 8(2); Human Rights Act 2019 (Qld) s 15(2); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8(2).

⁹⁹Re Lifestyle Communities Ltd (No 3) [2009] VCAT 1869, [280]. Only the Queensland Act provides a definition of ‘discrimination’, albeit an ‘inclusive’ one that includes direct and indirect discrimination (and references the relevant provisions of the Anti-Discrimination Act 1991 (Qld)).

¹⁰⁰Fraser v A-G (Canada) [2020] 3 SCR 113, [27].

¹⁰¹Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

¹⁰²Woods v DPP (Vic) [2014] VSC 1, [84].

¹⁰³Committee on the Rights of the Child, General Comment No 10 (2007): Children’s Rights in Juvenile Justice, UN Doc CRC/C/GC/10 (25 April 2007) [30]–[35].

¹⁰⁴Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37.

¹⁰⁵International Commission of Jurists, ‘Never in the Best Interests of the Child: Risks of Child Detention in the Screening and Border Procedures under the 2024 EU Migration Pact’ (Briefing Paper, 13 November 2024).

¹⁰⁶United Nations Rules for the Protection of Juveniles Deprived of their Liberty, UN Doc A/RES/45/113 (14 December 1990) rule 67; United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), UN Doc A/RES/70/175 (17 December 2015) rules 44, 45(2); Committee on the Rights of the Child, General Comment No 10 (2007): Children’s Rights in Juvenile Justice, UN Doc CRC/C/GC/10 (25 April 2007).

¹⁰⁷For a summary of the use of solitary confinement of children, see Human Rights Law Centre, ‘Explainer: Solitary Confinement’ (Web Page, 7 February 2018) <https://www.hrlc.org.au/explainers/2018-2-7-explainer-solitary-confinement/>.

¹⁰⁸United Nations Rules for the Protection of Juveniles Deprived of their Liberty, UN Doc A/RES/45/113 (14 December 1990) rules 63–4.

¹⁰⁹Office of the High Commissioner for Human Rights, ‘Youth Justice Systems across Australia in Crisis: UN Experts’ (Media Advisory, 19 May 2025).

¹¹⁰Hannah McGlade (Kurin Minang) and Megan Davis (Cobble Cobble), ‘Youth Justice in Australia’, Submission to the Committee on the Elimination of Racial Discrimination in McGlade and Davis v Australia, April 2025.

¹¹¹Hannah McGlade (Kurin Minang) and Megan Davis (Cobble Cobble), ‘Youth Justice in Australia’, Submission to the Committee on the Elimination of Racial Discrimination in McGlade and Davis v Australia, April 2025, [47] (citations omitted).

¹¹²Dechlan Brennan, ‘Human Rights Advocates Sound Alarm as Queensland Passes “Dangerous” Youth Justice Changes’, National Indigenous Times (online, 20 March 2023) <https://nit.com.au/20-03-2023/5334/human-rights-advocates-sound-alarm-as-queensland-passes-dangerous-youth-justice-changes>.

¹¹³Hannah McGlade (Kurin Minang) and Megan Davis (Cobble Cobble), ‘Youth Justice in Australia’, Submission to the Committee on the Elimination of Racial Discrimination in McGlade and Davis v Australia, April 2025, [158]–[172].

¹¹⁴Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 30; United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) arts 11–13.

¹¹⁵Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 12. More than 20 provisions within UNDRIP confirm aspects of this right.

¹¹⁶Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 9.

¹¹⁷Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 8–9.

¹¹⁸Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 1.

¹¹⁹Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 15.

¹²⁰Chief Justice James Spigelman, ‘The Common Law Bill of Rights’ in Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 1, 4.

¹²¹Chief Justice James Spigelman, ‘The Common Law Bill of Rights’ in Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 1.

¹²²Momcilovic v The Queen [2011] HCA 34, [444] (citations omitted).

¹²³Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [372].

¹²⁴Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [373].

¹²⁵Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [372].

¹²⁶Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21.

¹²⁷Pabai v Commonwealth (No 2) [2025] FCA 796.

¹²⁸Wallace v Tannock [2023] QSC 122, [21].

¹²⁹Wallace v Tannock [2023] QSC 122, [46].

¹³⁰Wallace v Tannock [2023] QSC 122, [53].

¹³¹Wallace v Tannock [2023] QSC 122, [64].

¹³²Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Report, May 2024) xv.

¹³³Chief Justice James Spigelman, ‘The Common Law Bill of Rights’ in Statutory Interpretation and Human Rights (University of Queensland Press, 2008).

¹³⁴Irene Watson (Tanganekald and Meintangk), ‘Aboriginal Relationships to the Natural World: Colonial “Protection” of Human Rights and the Environment’ (2018) 9(2) Journal of Human Rights and the Environment 1199, 1.

¹³⁵ILO Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 7 June 1989, 1650 UNTS 383 (entered into force 5 September 1991).

¹³⁶ILO Convention (No 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, opened for signature 26 June 1957, 328 UNTS 247 (entered into force 2 June 1959).

¹³⁷International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

¹³⁸Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

¹³⁹International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

¹⁴⁰United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) art 43.

¹⁴¹‘UN Declaration on the Rights of Indigenous Peoples’, Australian Human Rights Commission (Web Page, January 2026) <https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/un-declaration-rights>.

¹⁴²James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/64/338 (4 September 2009) 2.

¹⁴³James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/64/338 (4 September 2009) 20 [68].

¹⁴⁴International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

¹⁴⁵Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

¹⁴⁶Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 2003, 2375 UNTS 237 (entered into force 22 June 2006).

¹⁴⁷For information on the authors, see Barbara Shaw (a Kaytetye, Arrernte, Warramunga and Warlpiri woman) et al, ‘Northern Territory Intervention’, Submission to the Committee on the Elimination of Racial Discrimination in Shaw v Australia, 28 January 2009, [35].

¹⁴⁸For detailed submissions, see Barbara Shaw (a Kaytetye, Arrernte, Warramunga and Warlpiri woman) et al, ‘Northern Territory Intervention’, Submission to the Committee on the Elimination of Racial Discrimination in Shaw v Australia, 28 January 2009, 25–61 .

¹⁴⁹Barbara Shaw (a Kaytetye, Arrernte, Warramunga and Warlpiri woman) et al, ‘Northern Territory Intervention’, Submission to the Committee on the Elimination of Racial Discrimination in Shaw v Australia, 28 January 2009, 62.