Key issues
- The recognition of the rights of Aboriginal and Torres Strait
Islander peoples through a treaty or constitutional recognition is a
longstanding unresolved issue in Australia, despite many attempts over the
years.
- This lack of formal recognition is in direct contrast to
countries with a similar colonial history to Australia.
- Although the 2023 Voice Referendum did not pass, the formal
recognition of Indigenous rights in Australia remains an issue of interest to
many.
Introduction
There is a
long history of advocacy and activism in Australia for the recognition and
advancement of Aboriginal and Torres Strait Islander rights. This recently
found expression in the 2023
Voice Referendum, which sought to embed a permanent participatory structure
for Aboriginal and Torres Strait Islander peoples within the Australian
Constitution, as requested in the 2017 Uluru
Statement from the Heart. While the
referendum was unsuccessful, with around 60% of votes against the proposal,
the push for recognition through public
acknowledgements, partnership
approaches, government
policies and practices, and legal
avenues continues.
This article considers how
Australia compares to countries with a similar colonial history in their
relationships with indigenous peoples, and what the future might hold for the
campaign for Indigenous rights and recognition in Australia.
Rights-based approaches
Aboriginal and Torres Strait Islander peoples’ rights
encompass both individual
human rights, as described in the 7
core human rights treaties to which Australia is a party, and – through
their longstanding and prior occupation of the land now known as Australia – collective
rights. In Australia, these collective rights are reflected in the
recognition of native
title and other land rights, the continuing and renewed practices of culture, and the retention and renewal
of languages. Claims of self-determination and sovereignty reflect the desire for formal recognition of status as the first peoples of
Australia, as well as greater autonomy over their lives and livelihoods.
Past explicit discrimination practices (such as the denial of voting and other
rights, systems of segregation,
oppressive ‘protection’
regimes, and slave-like
labour conditions), coupled with the non-recognition of rights as
Indigenous peoples, have led to sustained and substantial inequalities in life
outcomes for Aboriginal and Torres Strait Islander peoples compared to the
broader Australian population. These disparities continue today, with the National Agreement
on Closing the Gap being the current strategy to address them.
Over time, explicit discrimination within the Australian
legal system has been addressed through legislation (including the Racial
Discrimination Act 1975) and various policy changes reflecting changing
societal attitudes.
In comparison, securing collective rights, and recognition
of the unique status of Aboriginal and Torres Strait Islander peoples as the
first peoples of Australia, has been much harder to achieve. For example, while
the 1992 High Court Mabo
decision overturned the
doctrine of terra nullius, enabling greater input into land use decisions
by Aboriginal and Torres Strait Islander peoples, the
subsequent history of native title legislation is chequered. The 1996 Wik
Peoples High Court decision prompted the then-controversial 10
point plan and the Native Title
Amendment Act 1998, and the 2020–21 Parliamentary inquiry into the
destruction of caves at Juukan Gorge found power
disparities and ‘serious failings of legislation’ that catastrophically
impacted the Puutu Kunti Kurrama and Pinikura peoples.
More recently, following several years
of consultation, research, and inquiries into options for recognising the
prior occupation of Australia by Aboriginal and Torres Strait Islander peoples,
the Uluru
Statement from the Heart sought a constitutionally-enshrined Voice to
Parliament and a Makarrata Commission to supervise a process of
agreement-making and ‘truth-telling’. However, the 2023 Voice referendum result rejected
the first part of that request, and the second is
also in doubt.
Global context
The United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was
adopted by the UN General Assembly on 13 September 2007. While at that time,
Australia, New Zealand, Canada and the US voted
against the resolution, all 4 countries have since endorsed the declaration,
with Australia
doing so in April 2009.
The declaration covers human rights relating to indigenous peoples, including
self-determination, participation in decision-making, respect for and
protection of culture, and equality and non-discrimination, stating:
… indigenous individuals are entitled without discrimination to all human
rights recognized in international law, and that indigenous peoples possess collective
rights which are indispensable for their existence, well-being and integral
development as peoples.
However, the declaration is not legally binding under
international law, and there is no obligation for nation states to ensure their
domestic law permits them to meet their obligations (as would be the case with
an international treaty). Nevertheless, some countries have committed to its
domestic implementation:
Australia’s lack of formalised rights-based approaches to
Indigenous matters contrasts with comparable
countries such as New Zealand, Canada, and the US. These countries, also
with a British colonial history, have treaties and treaty resolution
frameworks, enduring indigenous representative organisations, and government
policies that support indigenous empowerment and self-determination. Canada and
the US have also enshrined constitutional recognition of indigenous peoples and
their rights.
Rights-based versus practical approaches – either or both?
Australia has no treaty or
constitutional recognition of Indigenous rights and has not adopted an explicit rights-based approach in Indigenous matters. Some preliminary steps were taken in the 1970s,
with the establishment of the National
Aboriginal Consultative Committee (1973–77) by the Whitlam Government,
followed by the National
Aboriginal Conference (1977–85) under the Fraser Government, and the
enactment of land
rights legislation for the Northern Territory. However, a 1983 Hawke
Government commitment to advancing Indigenous rights through national land
rights legislation was not
fulfilled. While the Mabo
1992 High Court decision recognised the occupation of Australia by
Aboriginal and Torres Strait Islander peoples prior to British settlement, it
also recognised the susceptibility of native title to extinguishment. The Native Title
Act 1993 Native Title Act 1993sought
to strike a balance between the recognition and protection of native title and
clarity surrounding the status of other property interests.
The Aboriginal
and Torres Strait Islander Commission (ATSIC, 1990–2005), was the longest
sustained attempt by government to formalise and work with a participatory
structure involving Indigenous peoples. The elected body of ATSIC – the Board
of Commissioners – introduced and advocated for a rights-based approach to
Indigenous matters in Australia, while also overseeing government programs to
address socio-economic disadvantage. The ATSIC
rights-based agenda included awareness-raising activities, participation in
the UN Working
Group on Indigenous Populations, and consultation on possible treaty options.
The rights-based focus of the ATSIC Board of Commissioners was juxtaposed
against the Howard Government’s focus on ‘practical’ approaches to improve
health, housing, education and employment outcomes. Prime Minister Howard
coined the term ‘practical
reconciliation’, defining this as separate from ‘symbolic
gestures’ (initially in the context of an apology to the Stolen
Generations, and subsequently more broadly).
Since
ATSIC’s demise, a practical, outcomes-focused service delivery approach to
address socio-economic disparities between the Indigenous and non-Indigenous
populations in Australia has become the default focus for governments. The
original National
Indigenous Reform Agreement (2008–18) for Closing
the Gap on Indigenous Disadvantage took this approach. Rights and
recognition processes (such as the
various consultations from 2011 to 2017 relating to options for constitutional
recognition) were progressed separately. However, after 10 years, only 2 of the
Closing the Gap targets were on
track (pp.10–11), and in 2018 a ‘refresh’
of the Closing the Gap approach commenced.
In comparison to the original
Closing the Gap strategy, the current National Agreement
on Closing the Gap can be considered an attempt to marry a rights-based
approach with a service delivery outcomes framework. Key changes include the
formalised involvement of Aboriginal and Torres Strait Islander peoples,
commencing with the Partnership
Agreement on Closing the Gap with the Coalition of Aboriginal and Torres
Strait Islander Peak Organisations. Further, the 4
Priority Reforms in the National Agreement reflect the UN
rights-based approaches of participation (see Priority Reform 1);
accountability (Part
9 – ss 115–31); non-discrimination and equality (see Priority Reform 3);
empowerment (see Priority Reform 2) and legality. A practical outcomes-focused
approach is also embedded in the National Agreement, with the inclusion of 19
socio-economic targets across 17 life outcome areas, an expanded set of
indicators from the original strategy. The socio-economic outcomes and targets
sit alongside the Priority Reforms; however, achieving the Priority Reforms is
the highest priority in the National Agreement.
While the National Agreement
articulates and prioritises structural reforms that would support Aboriginal
and Torres Strait Islander rights, a 2023
review by the Productivity Commission considered that its implementation
has been considerably lacking, and that the agreement is likely to fail in its
objectives if governments do not fundamentally alter their approach and give
Aboriginal and Torres Strait Islander peoples more power over the decisions
that affect their lives.
The UNDRIP has had limited influence to date in developing a
rights-based approach in Australia. During 2022 and 2023, the Joint Standing
Committee on Aboriginal and Torres Strait Islander Affairs conducted an
inquiry into the application of the UNDRIP in Australia. The report made 6 recommendations, including the ‘development of a National Action Plan …
that outlines the approach to implementing the United Nations Declaration on
the Rights of Indigenous Peoples in Australia’. The report remained under
government consideration as at February 2025.
The recently appointed Aboriginal and Torres Strait Islander
Social Justice Commissioner, Katie Kiss, commenced
consultations in October 2024 seeking community input on 6 high-level
rights-based priorities, including how to promote implementation of the UNDRIP
in Australia.
Demographic change:
implications for the future
A young and growing
population
Australia’s Aboriginal and Torres Strait Islander population
is rapidly growing and, in contrast with the non-Indigenous population, is
overwhelmingly young, with a median
age of 24 compared to 38
for the Australian population.
At the 2021
Census, 812,728 people (3.2% of the population) identified as Aboriginal
and/or Torres Strait Islander, a 25% increase since 2016 (Figure 1). Changes in
the Aboriginal and Torres Strait Islander population are due to both demographic and non-demographic factors, including increasing numbers of people identifying as Aboriginal
and/or Torres Strait Islander over the last 20 years.
Figure 1 Percentage change in estimated resident
population between Censuses
Source: Australian Bureau of Statistics (ABS), ‘Guide
to using historical estimates for comparative analysis and reporting’, 24 July 2024.
The 2021 Census estimate appears
to have undercounted
the Aboriginal and Torres Strait Islander population by 17.4% (compared to
a whole-of-population undercount of 0.7%). Adjusting for Census undercounting,
the ABS estimates there were 983,700
Aboriginal and Torres Strait Islander people at 30 June 2021, representing
3.8% of the population. However, Census counts are the most commonly used
estimates for population analysis, and for projecting and budgeting for
government service provision. This means that expected use of these services is
often underestimated.
Continued growth in the Aboriginal and Torres Strait
Islander population is likely to result in increased budgetary demands on
programs and services aimed at improving practical outcomes for Aboriginal and
Torres Strait Islander peoples under the National Agreement on Closing the Gap.
Further, while the Aboriginal and Torres Strait Islander population has aged
over the last 3 Censuses (see Figure 2), the relatively young age structure may
also affect demand for key government services and supports, such as health,
education and training.
Figure 2 Aboriginal and/or Torres Strait Islander
people by age, 2021, 2016 and 2011 Censuses
Source: ABS, Census Aboriginal and/or Torres Strait Islander people
Quickstats, 2016 and 2021.
A key question for the future is
what a young and growing Aboriginal and Torres Strait Islander population might
mean for the campaign for Indigenous recognition. Young Aboriginal and Torres
Strait Islander peoples are highly active
online, and increasingly identify with transnational activist movements
such as Black
Lives Matter, Palestinian
independence and climate
justice. The fallout from the unsuccessful 2023 referendum, and the subsequent
withdrawal of many senior Aboriginal and Torres Strait Islander leaders
from earlier generations from the public sphere, may combine with these trends
to produce increasing numbers of Aboriginal and Torres Strait Islander leaders (and
movements) who are young, vocal and committed to change. Government and
advocates alike may need to consider the question of how best to engage with
these leaders and movements of the future within existing political and
representative structures.
Where to from here?
Following the unsuccessful 2023
Voice referendum, Australian Government action in progressing other formal
recognition processes has
slowed, and early-stage treaty processes in Queensland and the Northern
Territory have ceased. However, the issue remains
important for a substantial proportion of both Aboriginal and Torres Strait
Islander peoples and the broader Australian population, and some states are
continuing with their
own rights and recognition processes:
Aboriginal and Torres Strait
Islander peoples have persistently
advocated for the recognition and reclamation of their inherent rights.
With around 40% of voters in the 2023 referendum in favour of the Voice
proposal, and younger Australians more
likely to vote yes than older Australians, it is clear that the campaign
for Indigenous rights and recognition will remain on the public agenda for some
time to come.
Further reading
- James
Haughton, Lisa Richards and Cathy Madden, Indigenous
and Minority Representation Worldwide, Research paper series, 2023–24,
(Canberra: Parliamentary Library, 2023).
- Productivity
Commission, ‘Our
work streams – Aboriginal and Torres Strait Islander stream’.
- Australian
Institute of Health and Welfare (AIHW), Closing
the Gap Targets: Key Findings and Implications, catalogue
number IHW 294, (Canberra: AIHW, 2025).
- Lowitja Institute, Close
the Gap Campaign Report 2025, (Close the Gap
Campaign Alliance Group, 2025).
- United Nations, Secretariat of the Permanent Forum on
Indigenous Issues, State of the World’s Indigenous Peoples, Volume IV, Implementing
the United Nations Declaration on the Rights of Indigenous Peoples,
(New York: United Nations, 2019).