Meeting Australia’s UNDRIP Obligations: A Critical Analysis of Three Proposals
Gabrielle Appleby, Megan Davis, and Sarah Moulds
05.05.25
At the dawn of a new parliamentary term following Labor’s re-election on 3 May 2025, and the aftermath of the 2023 Voice referendum defeat, this post provides a detailed and critical examination of a number of proposals directed at giving effect to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Australian context. It will start with a brief overview of the three different proposals that have emerged since 2017, including the Aboriginal and Torres Strait Islander Voice, the UNDRIP Bill 2022 (which included an audit and action plan), and the 2023 proposal to embed UNDRIP compliance within the Parliamentary Joint Committee on Human Rights. There are then two posts, from Professor Megan Davis AC and Associate Professor Sarah Moulds that will provide an introduction to the UNDRIP and a critical examination of each proposal.
Overview of the Three Proposals
The Aboriginal and Torres Strait Islander Voice
The proposal for the Aboriginal and Torres Strait Islander Voice was developed across 2016-2017 at the Regional Dialogues and First Nations Constitutional Convention 2016-2017 that delivered the Uluru Statement from the Heart. These were deliberative consultations with First Nations representatives across Australia under the auspices of the Referendum Council. The key features of the Voice were:
· It was to be constitutionally entrenched, which meant it was constitutionally mandated and protected from future abolition, and it had constitutional status and authority alongside the other constitutional institutions of the Executive, the Parliament and the Judiciary.
· It was to be a representative body, chosen by Aboriginal and Torres Strait Islander people across the country, to make representations on their behalf. On the importance of the representativeness of the Voice, and the power of political representation particularly in the context of First Nations politics in Australia, see Sana Nakata, On Voice and the Political Power of Representation (2023).
· It was to speak to both the Commonwealth Parliament, as the constitutionally supreme law-maker, and the Executive Government, which makes many significant decisions and takes many actions with respect to Aboriginal and Torres Strait Islander people. How the Voice was to speak to the Parliament was not yet determined, but there were suggestions, for instance, that it might speak to the Parliament through a committee (recommended by the 2021 Indigenous Voice Co-Design Report, led by Marcia Langton and Tom Calma), or it might speak directly to the Houses of Parliament, modelled on the South Australian First Nations Voice. For a critical analysis of these different models, see Gabrielle Appleby, The First Nations Voice and the Parliament: A New Constitutional Relationship (2023).
· The scope of its representations were largely self-determined, that is, matters relating to Aboriginal and Torres Strait Islander people, which was intentionally broad, and the Voice itself was to largely set its own priorities.
The Voice was unsuccessfully put to a constitutional referendum in October 2023.
The UNDRIP Bill 2022
In March 2022, Independent Senator for Victoria Lidia Thorpe, who had opposed the Voice referendum, introduced the United Nations Declaration on the Rights of Indigenous Peoples Bill. The Bill contained three key actions:
1. An audit would be undertaken of all existing Commonwealth laws against the rights in the UNDRIP;
2. The Government was to prepare an action plan to achieve the objectives of the UNDRIP;
3. The Government was to report annually on the progress of the action plan.
This Bill was opposed by both major parties and, following the outcome of the Voice election, it was voted down in December 2023.
Extending the Scope of the Joint Standing Committee on Human Rights to include the UNDRIP
The final proposal emerged from a recommendation of the Joint Standing Committee on Aboriginal & Torres Strait Islander Affairs, chaired by Senator Patrick Dodson, in its Inquiry into the Application of the UNDRIP in Australia (November 2023). Put forward in November 2023, this recommendation followed the defeat of the Voice referendum in October 2023. Recommendation 6 stated:
Recommendation 6: The Committee recommends that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to include the United Nations Declaration on the Rights of Indigenous Peoples in the definition of ‘human rights’, so that it be formally considered by the Parliamentary Joint Committee on Human Rights when scrutinising legislation.
The Human Rights (Parliamentary Scrutiny) Act 2011 sets out the framework for governmental and parliamentary scrutiny of new legislation (including delegated instruments) against agreed human rights standards. Currently assesses compatibility with seven international HR treaties that Australia has ratified. The Act requires a Statement of Compatibility to accompany new legislation, and establishes a parliamentary committee (Joint Standing Committee on Human Rights) to scrutinise that statement against the legislation, and report to the Parliament.
Senator Thorpe picked up this recommendation in her Human Rights (Parliamentary Scrutiny) Amendment (Consideration of UNDRIP) Bill 2023. Despite the Joint Parliamentary Committee’s recommendations, that Bill too was opposed by both major parties, and voted down in February 2025.
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Each of these proposals attempts to progress the realisation of the rights in the UNDRIP in different ways. The following posts by Professor Megan Davis AC and Associate Professor Sarah Moulds, subject each to a critical analysis of its effectiveness.
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Professor Megan Davis: Overview of UNDRIP and critical analysis of Voice and UNDRIP Bill
Associate Professor Sarah Moulds: Embedding UNDRIP compliance within the Parliamentary Joint Committee on Human Rights
