Right to be consulted

The United Nations Declaration on the Rights of Indigenous People declares in Article 19 that;

"States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."

Despite this Declaration being aspirational and non-binding, it has been adopted by Australia which obliges the Government to act in accordance with the object and purpose of the Declaration.

The Committee on the Elimination of Racial Discrimination (General Recommendation 12) has also commented that governments should ensure that "no decisions directly relating to their rights and interests are taken without their informed consent." The lack of consultation also affects Australia's obligations under the ICCPR and ICESCR regarding the right to self-determination (discussed above). Additionally, the measures taken under the Intervention could only be legitimately considered 'special measures' under CERD if proper consultation was carried out.

Every stage of the Intervention since its inception in 2007 has had issues surrounding the level of consultation that was undertaken. This is despite the recommendations in the Little Children are Sacred Report, which prompted the whole response that "it is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities".

The rushed nature of the initial legislation did not allow time for proper consultation to occur. Any Indigenous programs and services that were already being offered at the community level were totally disregarded by the sweeping changes that were brought in. The changes made under the 2012 Stronger Futures legislation were discussed with Indigenous communities during a six-week consultation period, however the government conducted consultations on decisions that had already been made. Furthermore, these processes failed to engage communities on the issues most relevant to them, such as income management.

All stages of the Intervention have adopted a top-down, one-size-fits-all approach that has failed to properly consult with Indigenous communities.

The Australian Human Rights Commission's observations regarding the right to be consulted concluded that the lengthy time-frames for some of the measures make it especially critical that consultation is carried out.

The 'Listening but not Hearing' Report, carried out by the Jumbunna Indigenous House of Learning Research Unit, outlined the requirements under the duty to consult. Criteria include prior consultation of Indigenous peoples rather than discussions based on pre-determined conclusions as well as active participation of affected communities and free, prior and informed consent.

The Report found that the Stronger Futures consultation process excluded Indigenous people from the design process, failed to provide information on specific measures and did not provide any mechanisms for reaching a mutually agreeable settlement.

The Parliamentary Joint Committee’s 11^th Report of 2013 also criticised the Stronger Futures package of legislation for its failure to include a requirement of consultation. The duty to consult is part of international law and a requirement for any ‘special measures’ to be valid. Thus, regimes such as the Healthy Welfare card should only be implemented with the consent of and in consultation with the affected community or individual. This has also been a criticism of the Special Rapporteur with regard to the Indigenous Advancement Strategy, as representatives of peak Aboriginal bodies were excluded from key policies and legislative proposals. This was a theme consistent throughout the Special Rapporteur’s report, that in order to improve the human rights for Indigenous peoples, more extensive consultation with the Indigenous community, and community-led initiatives are essential. Recommendations include a revision of the Indigenous Advancement Strategy and Closing the Gap targets in consultation with the Aboriginal community. The report also called for funding to be reinstated for the National Consult, which has been defunded since 2014.

Two parliamentary submissions in response to the Northern Land Council’s decision to implement regulations assisting Aboriginal people in the acquisition and management of their traditional land stated that only 15 of the 100 Northern Territory communities affected were consulted by the government.

The consultation process embedded within the 2017 Uluru Statement of the Heart has called for the establishment of a “First Nations voice” to be entrenched within the Commonwealth Constitution, as well as a “makarrata commission” to oversee a process of truth-telling regarding the history of Aboriginal and Torres Strait Islander people. However, a First Nations representative body is yet to be enshrined within the governmental framework of Australia. As a result of this, there currently does not exist a procedure through which Indigenous persons can formally advise parliament on policy affecting Aboriginal or Torres Strait Islander people. In October of 2018, Prime Minister Malcolm Turnbull publicly expressed that the proposal to create an Indigenous representative institution was neither “desirable nor capable of winning acceptance at referendum, was inconsistent with democratic principles because only Indigenous Australians would be able to be or elect members of the representative body, and would inevitably become seen as a third chamber of parliament”. Instead, the government has since established a joint parliamentary committee to take the Uluru statement into account during any other subsequent proposals for constitutional reform.