Right to Social and Cultural Rights 

Social and cultural rights are enshrined in ICESCR, to which Australia is a signatory. These include the 'right to enjoyment of the highest attainable standard of physical and mental health', the 'right to education' and the 'right to participate in cultural life'. Similar rights can also be found in the ICCPR Art 27 and CERD Art 5(e).

Property Rights

The right to property is protected under Article 5(d)(v) of CERD which states that everyone has the right to "equality before the law, notably in the enjoyment of the following rights:... (v) the right to own property alone as well as in association with others". The Article 17 of the Universal Declaration of Human Rights also sets out the same right, adding that "no one shall be arbitrarily deprived of his property".

More specifically to Indigenous people, the Declaration on the Rights of Indigenous Peoples states in Art 32(1) that Indigenous people "have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources".

Amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act 1993 upon the implementation of the Intervention in 2007 meant that the Government could compulsorily acquire Aboriginal land. The fact that Indigenous owners were stripped of control over their property meant that 65 Aboriginal communities were acquired. This allowed the Government to lease the land through 5-year leases without any consultation or guarantee of compensation. The Indigenous owners lacked the rights of lessors, with no right to terminate the lease.

A similar scheme caused Indigenous communities to sign away their property rights for up to 40 years in return for the provision of services and maintenance.

Additionally, changes to the permit system weakened the control that Indigenous people had over their land. Previously, the landowners had the right to restrict access to their land through a permit system, but under the Intervention, the Government removed this system from all town camps and community living areas. The justification was that the permit system protected sexual abusers by restricting Government access and led to social isolation.

Restrictions continue surrounding Community Living Areas (CLA) and impede on the property rights of Indigenous Australians. CLA’s are portions of land granted out of a pastoral lease as conditional freehold to an Aboriginal community, where the community has been excluded from obtaining land rights under the ALRA. Nonetheless, the independent KMPG review of Stronger Futures legislation found that reforms easing leasing restriction and broadening the categories of permissible land use were compatible with human rights, including the right to self-determination. The reforms removed restrictions that prevented commercial leasing, and create the opportunity for economic development.

Whilst the reforms have been considered compatible with human rights, it has been suggested that further reform is still required to address the vulnerability of CLA titles and bring them into line with the Aboriginal Land Rights Act. This would effectively improve the property rights of all affected Indigenous peoples.

Section 60 and 134 of the NTNER legislation specified that the NorthernTerritory (Self Government) Act that guarantees compensation on 'just terms' for the compulsory acquisition of property does not apply to the Intervention. Section 134(2) states that a "reasonable amount of compensation" must be paid, but there is no indication of what this entails. There is a lack of clarity regarding whether the Commonwealth is required to pay compensation or not. The Law Council of Australia has branded these changes as an "unnecessary measure that would not be considered acceptable in any other section of the Australian community."

Right to Family and Private Life

Article 17 of the ICCPR guarantees that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home…". The Joint Committee on Human Rights has identified that this right encompasses "freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy".

The imposition of income management on Indigenous communities through the BasicsCard restricted the ways in which money could be spent. Therefore, the scheme is both a restriction on the right to social security and a violation of the right to family and private life. The conditions imposed on the payments constitute an 'arbitrary interference' to the extent that it also affects family members who may have nothing to do with school attendance. This restriction is especially arbitrary since no evidence has been shown regarding the effectiveness of linking school attendance requirements to welfare payments.

The denial of payments may also constitute a violation of the right to an adequate standard of living under Art 11 of ICESCR. The Healthy Welfare card (now called the Cashless Debit Card) resembles the BasicsCard in that it also restricts how people can use their money. The Social Security Amendment (Debit Card ) Bill 2015 Cth authorised the trialling of the Healthy Welfare card.  Its provisions raise some similar concerns to those raised by the BasicsCard.  One concern is the impact the system has on the right to privacy. In his report, the Aboriginal and Torres Strait Islander Social Justice Commissioner highlighted the somewhat broad authority conferred by the Debit Card Bill to disclose information about the trial's participants to the Secretary. These disclosure provisions may breach the right to privacy in article 17 of the ICCPR.

Whilst the impacts of the Stolen Generations are becoming more recognised and understood, the ongoing impact of removing children from their families into out-of-home care continues to have a devastating impact on the right to family for Indigenous peoples. Current child protection policies remove children from their families at 10 times the rate of non-Indigenous children. The concept of family is central to Indigenous culture, and fundamental to the healing process from the intergenerational trauma of the Stolen Generation. The Government tends to focus on the nuclear unit Western-style of families, and underestimates the importance and strong support network that exists in Indigenous families and communities. The 2018 Family Matters Report urges the Government to invest more in support services for children and their families, to prevent the situations that lead to child removal. The report also recognises the ongoing mental impacts from the Stolen Generations, that means this generation and direct descendants are 30% more likely to have poorer mental health. The PJC’s 2016 Review on Stronger Futures measures described the scheme of child removal as robbing individuals of their ‘private and family life’.