170. The Relevance of International Human Rights. As the Terms of Reference make clear, any recommendations for the recognition of Aboriginal customary laws must ensure that every Aborigine enjoys basic human rights. In particular the Terms of Reference specify that the Commission should ‘give special regard to the need to ensure that no person should be subject to any treatment, conduct or punishment which is cruel or inhumane’. These words reinforce the injunction, in Art 7 of the International Covenant on Civil and Political Rights of 1966, against ‘cruel, inhuman or degrading treatment or punishment’. In the absence of a domestic Bill of Rights in Australia, questions involving human rights are increasingly debated by reference to international human rights standards.[1] This emphasis is parallelled by the increasing interest, on the part of Aborigines themselves, in international forums as a way of expressing and furthering their views,[2] and by the cautious development, at the international level, of standards and machinery in response to the demands of minorities, including indigenous minorities.[3] One aspect of this question — the application of the principles of equality and non-discrimination to ‘special laws’ for Aboriginal people — is basic to the whole reference and was discussed in detail in Chapter 8. But other substantive human rights are also important. On the one hand they may require some degree of recognition of Aboriginal customary law and traditions; on the other, there may be aspects of customary law and traditions which may be said to contravene basic human rights. The consistency of a law or practice with basic human rights must depend on an examination of the particular issue in its context, and cannot be decided in the abstract. But the Commission’s general approach to these issues needs to be discussed. In this discussion the question of obligations towards minorities (especially indigenous minorities) should be distinguished from the question of preserving individual human rights (including those of members of minority groups).

[1]This tendency will be confirmed if the Australian Bill of Rights Bill 1985 (Cth), which is based on the ICCPR, is enacted.

[2] cf EG Whitlam, ‘Australian international obligations on Aborigines’ (1981) 53 Aust Q 433; E Eggleston, ‘Prospects for United Nations protection of the human rights of indigenous minorities’ (1970-3) 5 Aust YBIL 68, G Nettheim, ‘The Relevance of International Law’ in P Hanks and B Keon-Cohen (ed) Aborigines and the Law, George Allen and Unwin, Sydney, 1984, 50. For analogous developments in Canada see M Davies, ‘Aboriginal Rights in International Law: Human Rights’ in B Morse (ed) Aboriginal Peoples and the Law: Indians, Metis and Inuit Rights in Canada, Carleton UP, Ottawa 1985, 745. The continuing interest of international agencies in the Aboriginal problem is shown in the discussion by the Human Rights Committee of Australia’s first report under Article 40 of the ICCPR in October 1982. Eleven of the thirteen experts members of the Committee who raised questions relating to the Australian report referred to the human rights of Aborigines. See UN Press Release HR/1283 (26 October 1982).

[3]See eg L Garber & CM O’Connor, ‘The 1984 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities’ (1985) 79 AJIL 168; D Weissbrodt, ‘Indigenous Populations’ (1985) 13 ALB 12. cf para 163.