Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia

‘More than a Thought Bubble…’

This is the first of two articles exploring the international human rights framework as it relates to Indigenous peoples’ land rights and interests, with a focus on Australia. Over the past 30 years, the international community has increasingly recognised that special attention needs to be paid to the individual and collective rights of Indigenous peoples, as they are among the world’s most marginalised peoples. For a long time, the Indigenous peoples of the world have used the international human rights system to tackle discrimination and abuses of their rights, and the United Nations has increasingly become a place for them to voice their concerns. In Australia, there has been a long-running debate about the lack of recognition of the First Peoples in Australia’s Constitution. Aboriginal and Torres Strait Islander peoples are increasingly demanding that the full suite of international human rights norms and standards are applicable to their affairs and to dealings with them, including the UN Declaration on the Rights of Indigenous Peoples. This first article discusses the international human rights framework as it relates to the Indigenous peoples of Australia. The second article will take a closer look at how the land rights and interests of the Aboriginal and Torres Strait Islander peoples are being recognised at the national and state jurisdictional levels within Australia, with reference to recent comparable actions in Canada and New Zealand.

This chapter examines the ontological foundations of international law and their impact on Indigenous peoples, with a particular focus on Aboriginal and Torres Strait Islander peoples in Australia. It argues that international law’s concepts of sovereignty, civilization, nature, and rights are grounded in a distinctly Western, modernist ontology that has been used to justify colonialism and environmental exploitation. This ontological framework contrasts with many Indigenous ontologies, which tend to emphasize relationality, reciprocity, and obligations to Country. The chapter explores how this ontological clash has affected Indigenous peoples through the imposition of international law norms in domestic legal systems. It then considers how Indigenous peoples are actively challenging and reshaping international law’s ontological foundations through interventions in both international and domestic forums. Key examples include the UN Declaration on the Rights of Indigenous Peoples, the successful human rights communication regarding climate change made by Indigenous claimants from the Torres Strait Islands, and recent Australian jurisprudence recognizing Indigenous ontologies. By unsettling international law’s foundational concepts, these Indigenous legal interventions open up possibilities for ontological and legal pluralism. The chapter argues that such pluralism is necessary to address the global environmental crisis and achieve social and ecological justice. It concludes that embracing Indigenous wisdom and ontologies in international and domestic law could transform our collective response to planetary challenges.

Aboriginal and Torres Strait Islander peoples have campaigned for reform to the Australian state for generations. Over the last decade, debate over constitutional recognition has assumed mainstream prominence as a series of parliamentary and expert bodies designed to raise awareness of the need for change, propose options for that change, and build a community consensus around those proposals have been established. This article assesses the five public processes undertaken between 2010 and 2017. It explains that constitutional reform has been hampered by state ambivalence towards the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, it argues that that same state ambivalence created space for Aboriginal and Torres Strait Islander peoples to eventually take control of the debate, reframe it along their own priorities, and re-energise the movement for constitutional recognition. Even if prospects for a referendum remain uncertain, the Uluru Statement from the Heart has succeeded in building community consensus for a clear proposal because the UNDRIP informed and influenced its development.

Co-Designing Change

Ideas that are migrating from Canada are already guiding advocates who seek greater judicial and constitutional recognition of Aboriginal and Torres Strait Islander peoples. However, there is a need for a conceptual framework through which to approach the lessons that can be learned from Canada in this area. Inspired by The Migration of Constitutional Ideas, an edited work by Sujit Choudhry, in this thesis I argue that by thinking about the migration and transplantation of foundational ideas and by differentiating between four ‘modes’ of migration (arguments of counsel, judicial determinations, academic critique and constitutional reform deliberations), it is possible to better understand some of the processes that are at play. In particular, by adopting the terminology of the ‘migration’ and ‘transplantation’ of ‘foundational’ ideas, I aim to demonstrate that it is dangerous to transplant foundational ideas, whether derived from the common law or constitutional law, without other ideas (particularly in relation to implications) also migrating. This thesis is a response to two distinct but related topics: ‘Topic 1 — The Potential for Judicial Recognition of Indigenous Self-Government Rights: The Migration of Foundational Ideas from Canada to Australia’ and ‘Topic 2 — Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, the Race Power and an Anti-Discrimination Guarantee: Contemplating Canadian Approaches to Equality’. Through these two topics I examine two of the recognised modes of recognition — judicial and constitutional — and focus on two discrete types of recognition — selfgovernment and non-discrimination — and the lessons that can be learned from Canada. In response to the first topic I consider the extent to which foundational ideas are migrating from Canada to Australia in the field of Indigenous self-government rights and whether these ideas could be used in Australian courts. In response to the second topic I consider the extent to which Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution 5 and when examining the various options that are available. As far as the migration of foundational ideas from Canada is concerned, in Topic 1 my starting point is to consider what could be learned from the Canadian jurisprudence in order to understand the ideas that have migrated or could potentially migrate to Australia. In contrast, in Topic 2 I start with an appraisal of the lack of recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution and the perceived problems with s 51(xxvi) (the ‘race power’), and in so doing I consider what benefits (modified) Canadian transplants may offer, if any.

Aboriginal and Torres Strait Islander peoples have campaigned for reform to the Australian state for generations. Over the last decade, debate over constitutional recognition has assumed mainstream prominence as a series of parliamentary and expert bodies designed to raise awareness of the need for change, propose options for that change, and build a community consensus around those proposals, have been established. This article assesses the five public processes undertaken between 2010 and 2017. It explains that constitutional reform has been hampered by state ambivalence towards the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, it argues that that same state ambivalence created space for Aboriginal and Torres Strait Islander peoples to eventually take control of the debate, reframe it along their own priorities, and re‐energise the movement for constitutional recognition. Even if prospects for a referendum remain uncertain, the Uluru Statement from the Heart has succeeded in building community consensus for a clear proposal because the UNDRIP informed and influenced its development.

To describe rates of hospitalisation and Coaching on Achieving Cardiovascular Health referral, for Queensland's adults with heart and related disease, and comparisons between Aboriginal and Torres Strait Islander and non-Indigenous peoples in northern Queensland. Descriptive retrospective epidemiological study of Queensland Health Patient Admission Data Collection for adults with heart and related disease, and Coaching on Achieving Cardiovascular Health referral data. Relative risk and age standardisation were calculated for Aboriginal and Torres Strait Islander and non-Indigenous peoples. Queensland's adults≥20years, hospitalised with heart and related disease (1 January 2012-31 December 2016). Queensland, Australia. Queensland Health Hospital and Health Services' hospitalisation and Coaching on Achieving Cardiovascular Health referral rates for heart and related disease. Queensland's Aboriginal and Torres Strait Islander peoples have a higher hospitalisation rate for heart and related disease, with higher rates for northern Queensland. Queensland's overall Coaching on Achieving Cardiovascular Health referral rates were low, but higher for Aboriginal and Torres Strait Islander peoples. Deficiencies in documentation of Aboriginal and Torres Strait Islander people's status affected results in some areas. Queensland's Aboriginal and Torres Strait Islander peoples were more likely to be admitted to hospital for heart and related disease and referred to Coaching on Achieving Cardiovascular Health than non-Indigenous peoples. However, hospitalisation and Coaching on Achieving Cardiovascular Health referral rates are unlikely to reflect the needs of Aboriginal and Torres Strait Islander peoples especially in rural and very remote areas given their higher mortality and morbidity rates and fewer services.

Sorry Business

This paper explains how routinely collected data can be used to examine the emergency department attendances of Victorian Aboriginal and Torres Strait Islander people. The data reported in the Victorian Emergency Minimum Dataset (VEMD) for the 2006/2007 financial year were analysed. The presentations of Aboriginal and Torres Strait Islander and non-Aboriginal people were compared in terms of age, gender, hospital location (metropolitan and rural) and presenting condition. Aboriginal and Torres Strait Islander people were found to attend the emergency department 1.8 times more often than non-Aboriginal people. While the emergency department presentation rates of metropolitan Aboriginal and Torres Strait Islander and non-Aboriginal people were similar, rural Aboriginal and Torres Strait Islander people presented to the emergency department 2.3 times more often than non-Aboriginal people. The injuries or poisonings, respiratory conditions and mental disorders presentation rates of the Aboriginal and Torres Strait Islander and non-Aboriginal population were compared. No previous studies have assessed the accuracy of the Indigenous status and diagnosis fields in the VEMD; therefore the quality of this data is unknown.

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

Rough Drafts

Background and context: Cancer survival rates in Australia are among the best in the world, yet Aboriginal and Torres Strait Islander (indigenous) people continue to experience disparities in the distribution and burden of cancer, and unwarranted variations in outcomes. Indigenous Australians are 40% more likely to die of cancer than non-Indigenous Australians. Cancer Australia developed the National Aboriginal and Torres Strait Islander Cancer Framework (the framework), which identified 7 national priorities to address disparities in cancer outcomes experienced by indigenous Australians. An ongoing collaboration with indigenous Australians was integral to developing this shared agenda. Priority 5 in the framework highlights the need to ensure indigenous Australians affected by cancer receive optimal and culturally appropriate treatment, services, and supportive and palliative care. Aim: To improve cancer outcomes for indigenous Australians through the development and national endorsement of a population-specific Optimal Care Pathway (OCP) to guide the delivery of consistent, safe, high-quality, culturally appropriate and evidence-based care. Strategy/Tactics: Cancer Australia formed a partnership with the Victorian Department of Health and Human Services (DHHS) to address Priority 5 and develop the OCP. The approach to development was underpinned by Cancer Australia's Model of Engagement for Aboriginal and Torres Strait Islander People and guided by the national Leadership Group on Aboriginal and Torres Strait Islander Cancer Control (Leadership Group). Program/Policy process: Cancer Australia, in collaboration with DHHS: • reviewed experiences of care and the framework's comprehensive evidence base • developed a draft OCP to complement tumor-specific pathways • facilitated an Expert Working Group, comprising indigenous health sector leaders and consumers to refine and validate the draft OCP • undertook national public consultation, including with the indigenous health sector and community, health professionals and professional colleges • received an indication of support to proceed to endorsement from the Leadership Group. Outcomes: The first population-specific OCP for Aboriginal and Torres Strait Islander people with cancer received national endorsement. It will guide the delivery of consistent, safe, high-quality, culturally appropriate and evidence-based care. What was learned: Key elements of optimal care include: addressing the cultural appropriateness of the healthcare environment; improving cross-cultural communication; relationship building with local community; optimizing health literacy; recognition of men's and women's business; and the need to use culturally appropriate resources. The national priority in the framework informed and unified high-level direction, which was integral to effective OCP development and endorsement. The evidence-based, step-wise development approach contributed to its relevance, utility and quality.

Aboriginal and Torres Strait Islander Peoples' perspectives on health and wellbeing remain largely absent and underrepresented in contemporary public health nutrition and wellness literature. The dominant Western health knowledge system is positioned as normative, effectively rendering Aboriginal and Torres Strait Islander Peoples' health knowledge systems invisible, particularly in chronic kidney disease (CKD) care. To demonstrate through a case study how an Indigenous strengths-based theoretical framework can equip nutrition practitioners with tools for recognising, naming and reframing deficit discourse, while identifying and amplifying the diverse strengths of Aboriginal and Torres Strait Islander Peoples of Australia impacted by CKD, offering an alternative to deficit-based approaches in primary health nutrition practice and research. We present a narrative background on Aboriginal and Torres Strait Islander Peoples' conceptions of health, nutrition and wellbeing in the context of CKD, highlighting how deficit-based approaches negatively impact outcomes, and proposing a strengths-based approach as a more effective and culturally appropriate way forward. We then provide a case study integrating Prehn's strengths-based theoretical framework according to micro, meso and macro levels to facilitate recognition of Aboriginal and Torres Strait Islander Peoples' multitude of strengths. Our case study is a worked example of this framework provided in the context of promoting nutrition health and wellbeing for Aboriginal and Torres Strait Islander Peoples impacted by CKD residing in Yarrabah, Australia. Our case study shows how Prehn's framework can guide culturally safe, strengths-based CKD nutrition care, supporting health sovereignty and self-determination for Aboriginal and Torres Strait Islander Peoples across all levels of practice.

Aboriginal and Torres Strait Islander people have a substantially higher prevalence of liver disease than non-Indigenous Australians. Cirrhosis and its complications were the sixth leading cause of mortality for Aboriginal and Torres Strait Islander people in 2020. Liver disease has been estimated to be the third leading cause of the mortality gap between Aboriginal and Torres Strait Islander and non-Indigenous people due to chronic disease, accounting for 11% of this gap. While current trends show reducing mortality rates for Aboriginal and Torres Strait Islander people for conditions including circulatory disease, diabetes and kidney disease, there are no data to suggest a similar decline for liver disease. This review highlights the common causes of liver disease affecting Aboriginal and Torres Strait Islander people, which include hepatitis B, hepatitis C, alcohol related liver disease, metabolic dysfunction-associated fatty liver disease, and cirrhosis and its complications including hepatocellular carcinoma. Current treatments including liver transplantation as well as suggestions for improving detection, treatment and access to liver care will also be discussed. Recent revolutions in the detection and treatment of liver disease make efforts to improve access to treatment and outcomes an urgent priority for Aboriginal and Torres Strait Islander people.