Beyond the Preamble: Legislating the right to self-determination in a NSW Human Rights Act

Abstract

This article examines the inclusion of the right to self-determination in existing models of state and territory human rights legislation and proposes its inclusion in a future human rights act in New South Wales (NSW), to advance the rights of First Peoples in the criminal justice system. I explore how this would provide a mechanism for state restraint and a legal framework for prioritising self-determined First Nations critique, research and service delivery in carceral systems. The role of courts in holding the state to account and developing legal pluralism in rights jurisprudence is also discussed.

Australian governments have viewed the right to self-determination as something to be feared – a threat to colonial control. In 2007, then Prime Minister John Howard refused to join Australia as a co-signatory to the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) because it would ‘support the notion that you should have customary law taking priority over the general law’. ¹ Howard, exhibiting colonial hubris, continued that the decision not to support UNDRIP ‘wasn't difficult at all, because it is wrong to support something that argues the case of separate development inside one country.’ ²

Reactions of the coloniser to legal pluralism are symptomatic of its violent anxiety about the source of its authority. Knowing its ‘legally shaky claim’ ³ to sovereignty, the coloniser considers the recognition of First Peoples by its institutions as mutiny, such as levelling accusations of ‘judicial activism’ at the High Court. ⁴ Displays of strength by First Peoples and rights discourses are met with ‘hysteria’. ⁵

Recent comments of the Queensland Police Union President, Ian Leavers, are an example of such hysteria. Likely buoyed by the denunciation of youth crime in Queensland, ⁶ Leavers was featured in The Guardian in October 2023 stating that a treaty would result in ‘a free pass to every rapist, domestic violence abuser, habitual home invader and car thief who tells police they identify as Aboriginal.’ ⁷ In the same month, the New South Wales (‘NSW’) Police Force (‘NSWPF’) responded to findings by the Law Enforcement Conduct Commission (‘LECC’) that their Suspect Targeting Management Plan (‘STMP’) policy discriminated against Aboriginal and Torres Strait Islander young people as ‘an exaggeration’ because in ‘many instances … a person accidentally … or maliciously, identifies as indigenous [sic] in a police interaction’. ⁸ This rhetoric festers false stereotypes that First Nations status is casually adopted and weaponised to avoid culpability or obtain preferential treatment.

Conversely, it is First Nations status that drives state interference in settler-colonies. In Aotearoa/New Zealand, Bull states that ‘[g]overnment harassment of Māori grows ever more subtle’, that ‘seemingly innocuous legislation is used to facilitate the over-policing of Māori’ and ‘offending by Māori is seen as an “issue” or “problem”, justifying the need for further official intervention, and initiating a self-fulfilling prophecy’. ⁹

The rights of First Peoples in criminal processes are critical. First Peoples on this continent are the most incarcerated people in the world and the criminal justice system remains a key site of colonisation. ¹⁰

Australia does not have a harmonised rights framework. Often described as piecemeal, ¹¹ rights are sourced from the Constitution, the common law and various statutes. ¹² As criminal laws are predominately legislated and administered by states and territories, jurisdictional rights’ frameworks are crucial to address the crushing rates of criminalisation and hyper-incarceration of First Peoples.

The right to self-determination in a NSW Human Rights Act (‘NSW HRA’) would embed First Peoples rights in criminal processes by:

1) challenging epistemologies weaponised against First Peoples in carceral service delivery systems. An HRA in NSW would provide a structural basis for prioritising self-determined practices to address criminalisation of First Peoples. Examples of First Nations-led research and programs in NSW will be discussed.

2) disrupting colonising agents. The findings of LECC in respect of NSWPF’s STMP policy will be examined to deconstruct practices employed to justify criminalisation of First Peoples. ¹³ Police will be referred to as colonising agents, not to inflame but to acknowledge practices that drive ‘carceral logic’ ¹⁴ and prop-up the colonial project. ¹⁵

3) harnessing the potential of courts to hold public institutions to account and recognise First Peoples’ rights and epistemologies. Judicial treatment of the status of First Peoples and the development of rights jurisprudence will be discussed.

Background

Operation of human rights legislation in Australia

The Australian Capital Territory and Victoria were the first jurisdictions to enact HRAs, in 2004 and 2006 respectively. ¹⁶ In 2019, Queensland enacted the Human Rights Act 2019, but calls for a NSW HRA lost traction. ¹⁷

HRAs are founded on a dialogue model between the three arms of government. ¹⁸ Bills to parliament are accompanied by a statement setting out the proposed law’s compatibility with the HRA (‘compatibility statement’). ¹⁹ Existing laws are interpreted in a manner consistent with HRA rights ‘so far as it is possible to do so consistently with [that existing law’s] purpose’. ²⁰

Courts have the power to issue a declaration that a law is not consistent with a human right. A declaration does not invalidate legislation, but it must be brought before parliament accompanied by a response by the relevant minister; hence a dialogue between courts and parliament takes place. ²¹ Following a declaration by a court, public scrutiny, media framing and political will shapes what happens next. Parliamentary supremacy is protected by override provisions, which give parliament the power to make laws that expressly override HRAs in exceptional or special circumstances. ²²

A NSW HRA would source its rights from the International Covenant on Civil and Political Rights (‘ICCPR’), as has been the convention to date. ²³ Preambles to existing HRAs recognise the special or particular significance of human rights for Aboriginal and Torres Strait Islander peoples as First Peoples. ²⁴ However, HRAs do not hold self-determination as a right, despite its feature in the ICCPR.

Self-determination and the coloniser’s violent anxiety

Self-determination is central to advancing the rights of First Peoples – ‘the river in which all other rights swim.’ ²⁵ The right to self-determination is articulated as being possessed by all peoples and ‘by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ ²⁶

In the international context, Australia has described self-determination of First Peoples as ‘seeking to assert their identities, to preserve their languages, cultures, and traditions and to achieve greater self-management and autonomy, free from undue interference from central governments.’ ²⁷

The line drawn from the right to self-determination to cession persists in the development of HRAs. Yarrow and Castan attribute exclusion of the right to self-determination in Victoria’s Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’) as reflective of Stanner’s ‘cult of disremembering’, the collective inattention to the violence of First Contact. ²⁸ The absence of the right to self-determination in existing HRAs is a perverse recognition of the enduring sovereignty of this country’s First Peoples.

Criminology: a site to take up the decolonial project

Criminology has a ‘fixation with the relationship between race and crime’ ²⁹ although it struggles to articulate the relationship accurately. Dannette critiques New Zealand’s Department of Corrections/Ara Poutama Aotearoa and its theorising of criminal offending by Māori, which assumes that overrepresentation is ‘best understood as the outcome of Māori experiencing impairments to cultural identity resulting from colonisation’. ³⁰ Instead of this lending to a deeper inquiry into products of colonisation, ethnicity is positioned as ‘a reliable construct by which distinctions can be made between offenders regarding what factors precipitated their offending, as well as best practices for their rehabilitation’. ³¹

In assessing the risk of recidivism and prospects of rehabilitation, new penology ³² has entrenched actuarial risk assessments (‘ARAs’) in criminal processes, including to rationalise service delivery and state supervision. ³³ ARAs are often validated on Western populations and give rise to cultural biases. ³⁴ However, there is a plethora of rich and sophisticated research and programs designed and applied by First Peoples which challenge epistemologies dominating carceral service delivery. ³⁵

First Nations researchers and administrators of ARAs have proposed redefining the factors that inform ARA scoring as applied to First Peoples. ³⁶ To address the decontextualization of culture in ARAs, factors such as education and employment could include knowledge of cultural lore to account for knowledge acquired outside mainstream schooling. ³⁷ First Nations-controlled service delivery is fundamental to culturally relevant practices in criminal processes.

Anthony, Sentance and Behrendt engaged with 160 First Nations women in NSW prisons to identify their experiences – the lived sentence. ³⁸ The research was guided by sista2sista, an Aboriginal women’s advisory group. ³⁹ The research methodology was founded on Dadirri, ‘inner deep listening and quiet still awareness’. ⁴⁰ The insights of First Nations women surveyed reflect the causal relationship between the practices of colonising agents and the incarceration of First Nations women, imposing conditions that ‘set them up to fail’ and raising breaches that criminalise behaviour such as ‘taking children to school … and connecting them with culture’. ⁴¹ The research underlined the importance of First Nations women with lived experience directing policy reform. ⁴²

Part of the researchers’ responsibilities was to provide support to, and advocate on behalf of, the First Nations women surveyed. ⁴³ While approaches such as participatory action research might confront the West’s preoccupation with objectivity, the researchers’ methodology was self-determined and accountable to its participants. ⁴⁴ There is an overwhelming business case for the broader implementation of this approach and the self-determined solutions it proffers: First Nations women are the fastest growing prison population. ⁴⁵

Strengths-based discourses are featuring more regularly in criminal processes as a result of First Nations-led initiatives. ⁴⁶ In NSW, Deadly Connections Community and Justice Services provide rehabilitation programs and furnish the court with ‘Bugmy Justice Reports’ – named after the decision of Bugmy v The Queen (‘Bugmy’) ⁴⁷ – in respect of First Peoples before the court for bail or sentence hearings. ⁴⁸ Bugmy is authority for the principle that evidence of childhood deprivation – the effects of which do not diminish over time – is a factor in mitigation on sentence. ⁴⁹ Bugmy Justice Reports, referred to more broadly as Indigenous Experience Reports (‘IER’) or Gladue reports, ⁵⁰ offset deficit discourse by providing advice to the court on culturally relevant protective factors and rehabilitation programs. ⁵¹ IERs offer counter-narratives to sentence assessment reports prepared by the relevant corrective services agency, which are prepared on the basis of ARA scores.

Inherent to self-determined service delivery is disrupting epistemic violence ⁵² and challenging practices that pathologise ⁵³ First Peoples. The right to self-determination – a positive right – in a NSW HRA would strengthen First Peoples rights in criminal processes by prioritising First Nations-led healing programs which position connection to culture as a protective factor in reducing re-criminalisation. ⁵⁴

If governments are serious about working ‘effectively to advance progress on Closing the Gap through joint decision-making and self-determination’ ⁵⁵ and ensuring the ‘justice system is transformed to support the needs and aspirations of Aboriginal communities’, ⁵⁶ then greater self-management requires the genuine exchange of power and resources in carceral service delivery.

The exercise of the right to self-determination enforced under a NSW HRA would recognise multiple perspectives and sources of law. Simultaneous with the development of rights jurisprudence under a NSW HRA, legal pluralism would permeate the development, interpretation and administration of criminal laws. Colonial institutions cannot be trusted to institute policies as a way out of the ‘colonial mind set’ ⁵⁷ but legislating the right to self-determination demands the centring of First Nations initiatives and critique on carceral policies.

Charters and colonising agents

Sometimes the coloniser does not even seek to veil its intrusive practices with actuarial justifications. Such was the brazenness of STMP, which NSWPF committed to disbanding in October 2023 following the release of LECC’s Operation Tepito Final Report (the LECC report). ⁵⁸ The stated purpose of STMP was to prevent crime by interrupting criminal behaviour through ‘proactive policing strategies’. ⁵⁹ STMP encouraged officers to: stop and search ‘targets when police see them’; visit homes; and use ‘statutory powers to increase their interaction with the target, including conducting bail compliance checks … and issuing consorting warnings’. ⁶⁰ Finding STMP was ‘unreasonable, unjust, oppressive or improperly discriminatory in its effect on children and young people’, ⁶¹ LECC concluded that it amounted to agency maladministration under s 11 of the Law Enforcement Conduct Commission Act 2016 (NSW). ⁶²

NSWPF purported to apply a ‘crime severity index’ and an intelligence system, ‘Chimera’, to determine STMP targets. ⁶³ This involved using a person’s offending history, recent participation in criminal activity and ‘local crime patterns’. ⁶⁴ Officers were guided to also utilise ‘local knowledge’ ⁶⁵ in determining targets and charges laid by police were taken to be the most reliable measure of an individual’s likelihood of re-offending. ⁶⁶

LECC found the target selection process ‘likely contributed to the gross over-representation of young Aboriginal STMP targets.’ ⁶⁷ LECC found police ‘prioritised policing strategies that tended towards young people experiencing increased interactions with the criminal justice system’ and ‘an increased likelihood of incarceration’. ⁶⁸ A policy of encouraging officers to increase interactions exacerbates the self-fulfilling prophecy of crime and its creation by targeted policing practices. ⁶⁹ LECC also found officers did not know the difference between bail checks and STMP home visits, ⁷⁰ perpetuating intrusive practices that criminalise people for technical breaches and disrupt private life.

Significant and consistent pressure was applied by advocacy groups and services such as Youth Justice Commission (‘YJC’), Public Interest Advocacy Centre and Aboriginal Legal Service that reported on, and continuously called for, the disbanding of STMP. ⁷¹ Despite NSWPF being on notice from YJC and LECC since 2017 of STMP’s discriminatory practices ⁷² NSWPF resisted disbanding it until the impending public release of LECC’s final report in October 2023.

STMP’s expansive and long-running operation over 20 years, without authority, should continue to alarm. Police targeted Aboriginal or Torres Strait Islander young people, who constituted 48 per cent of those on STMP while comprising just 5.6 per cent of young people in NSW. ⁷³ LECC described STMP’s targeting of young Aboriginal people as relating to:

types of crime that are more likely to be proactively policed, and the social inequality affecting a person’s propensity to commit crime. These factors are often aligned with socioeconomic status and can affect the way that police respond to populations such as Aboriginal youth. ⁷⁴

This characterisation is an example of pervading crime-policy rhetoric that explains the criminalisation of First Peoples by the coloniser as passive and ‘subsumed into the “problem of class”’. ⁷⁵ First Nations perspectives are erased and the settler makes another move toward innocence. ⁷⁶

A NSW HRA would bring on accountability mechanisms, earlier and publicly. There was considerable secrecy surrounding STMP and its ‘toolkits’. ⁷⁷ LECC’s decision not to establish further thresholds against NSWPF because it would cease applying STMP to young people ⁷⁸ shut down the exploration of legal avenues to hold the agency to account. This is either an indictment on the accountability measures available or revealing of the will to confront pervading practices that criminalise First Peoples.

Additionally, a NSW HRA would provide an avenue for First Peoples to call on the supervision of the courts in determining a policy’s infringement on human rights. Where the court finds a right has been limited, the onus shifts to the public authority to justify the limitation. While the courts are not empowered to strike down legislation, a declaration would demand transparency and encourage scrutiny. The requirements of compatibility with the legislative authority of a NSW HRA (as another piece of legislation) would be more demanding than present mechanisms. A NSW HRA containing the right to self-determination would ensure that self-determined practices, such as community patrols, were prioritised to address the criminalisation of young First Peoples. ⁷⁹

Rights jurisprudence and the pluralism of courts

While courts must be contextualised as institutions of colonisation, the High Court has demonstrated willingness to incorporate First Nations perspectives. Mabo v Queensland (No 2) (‘Mabo’), which held terra nullius was a legal fiction, recognised Native Title and ‘a national legacy of unutterable shame’ that is colonisation. ⁸⁰

The High Court has made further offerings, including in 2020 with the recognition of First Peoples in Love v Commonwealth; Thoms v Commonwealth. ⁸¹ Applying the tripartite test in Mabo, the High Court majority held that Daniel Love, an Aboriginal man born in Papua New Guinea, and Brendan Thoms, an Aboriginal man born in New Zealand, were not capable of being ‘aliens’ under the Constitution. ⁸² The government could not deport these men, whose visas had been cancelled because of criminal convictions.

While the High Court has offered shaky landmarks in the non-linear progression of First Peoples rights in colonial institutions, a NSW HRA containing the right to self-determination would offer a structural framework for the exercise of First Peoples’ rights in everyday criminal processes.

In Director of Public Prosecutions v Tirris, ⁸³ Judge Johns of the Koori Court – a division of the Victorian County Court – cited UNDRIP and s 19 (cultural rights) of the Victorian Charter in sentencing Wiradjuri man, Virgil Tirris. In addition to Bugmy factors, Judge Johns drew on strengths-based evidence of the IER. ⁸⁴ Mr Tirris ‘found support predominately amongst Aboriginal run services’ ⁸⁵ and had a deep connection to his ancestry and culture, having been ‘brought up in that [Wiradjuri] tradition’. ⁸⁶ Drawing on the authority of the Victorian Charter and underpinned by the self-determining qualities of the Koori Court, Judge Johns acknowledged the importance of culturally relevant rehabilitation programs. ⁸⁷

HRA rights are not absolute and must be ‘construed having regard to [a right’s] text, context and purpose … assisted in appropriate cases by international jurisprudence’. ⁸⁸ The limitations of Charter rights, namely the proportionality test and purposive interpretation principles, were expounded in Thompson v Minogue ⁸⁹ which related to the right to privacy in prisons. The Court of Appeal held that consideration of the limitation of a right requires only ‘a broad and general assessment of whether … the interference extends beyond what is reasonably necessary to achieve the … lawful purpose being pursued’. ⁹⁰

There is wide discretion afforded in prison administration, compounded by the opacity of their operations shielded from public life. The courts have protected that discretion by deferring to the ‘expertise’ of corrective services in managing prisons as a factor in determining proportionality. ⁹¹ Despite these limitations, the litigation and ventilation of HRA rights enhances public scrutiny.

Chen and Mackay consider the inquiry into breaches of the Victorian Charter at the inquest into the death of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, Veronica Nelson, that resulted in heightened media reporting and human rights discourse in the body politic. ⁹² The Coroner found bail laws resulting in Ms Nelson’s detention were incompatible with the Charter. ⁹³ The inquest explored Ms Nelson’s cultural rights, ⁹⁴ which included access to culturally safe treatment delivered by culturally competent staff. ⁹⁵ The coroner cited international jurisprudence that ‘positive measures may be necessary to protect against the denial or infringement of the right to culture.’ ⁹⁶ In finding the prison’s failings causally contributed to Ms Nelson’s passing, the coroner cited the absence of Aboriginal or Torres Strait Islander staff and the absence of access to an Aboriginal health care worker as indicia of those failings. ⁹⁷

The inclusion of the right to self-determination in a NSW HRA would create space for legal pluralism in the recognition of First Nations laws. Including the right to self-determination in HRAs offers an opportunity for the development of rights jurisprudence that is free from the limitations of international law, which is underpinned by colonial and Western ideology and fails to recognise First Nations sovereignty. ⁹⁸ In applying the right, courts must decentre ‘western political theories … regulated by linear thinking’. ⁹⁹ While ‘it is in thinking through how to engage with First Nations laws that colonial societies become stuck … that is also where the “ground of impossibility” lies.’ ¹⁰⁰

Conclusion

The coloniser’s ‘legally shaky claim’ ¹⁰¹ to sovereignty strikes fear in the coloniser, breeding violent and oppressive tactics that materialise in the criminalisation and mass incarceration of First Peoples. A NSW HRA with a right to self-determination would attract ire from such colonisers. The task lies in creating ‘a climate that nourishes the political will to address destructive colonial rules and conventions’ ¹⁰² rather than the recent devolution of public discourse that has sought to call into question the prevalence of racism and negative impacts of colonisation. ¹⁰³

Legislating the right to self-determination would prioritise ‘Indigenous critique of the crime control edifice’ ¹⁰⁴ in research paradigms. It would lend structural support to First Peoples authority in law-making, policy design and service delivery in criminal processes, providing a legislative instrument to bolster self-determined action and a mechanism for government restraint. A NSW HRA containing the right to self-determination would contribute to the decolonial project ¹⁰⁵ by supporting self-determined programs and disrupting state administration of carceral technologies. ¹⁰⁶

There are limitations to this proposal. A NSW HRA, being a piece of state legislation, would arguably participate in, and derive its authority from, colonial institutions that oppress First Peoples. Further, where it ought to be an expansive right, self-determination will compete with other rights and be subject to tests of proportionality and override provisions.

Despite limitations of the dialogue model, including the right to self-determination in a NSW HRA would contextualise colonisation in the development of human rights jurisprudence on this continent, ensuring that Australia’s global status as a Western democratic country is not self-absolving of the ongoing violence of colonisation.

A NSW HRA containing the right to self-determination would demand legal pluralism – a reimagining of the colonial and positivist foundations of the Western legal system. Enshrining the right provides a path to challenge cultural myopia ‘and perhaps being able to renounce the colonised self might open up and liberate many more peoples into a relational approach to the natural world’. ¹⁰⁷ It offers an infinite ‘rights pie’ ¹⁰⁸ and not the zero-sum game that colonisers seek to have us believe. The right to self-determination in a NSW HRA could form part of the ‘next-world creations’ that are ‘intentional, anti-colonial, freedom-filled’. ¹⁰⁹