Minority Rights and Advocacy for Incarcerated Indigenous Australians: The Impact of Article 27 of the ICCPR

Abstract

Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) protects the right of persons belonging to ethnic and linguistic minorities to enjoy their own culture and language, in community with other embers of their group. The decision to transfer indigenous Australians away from their traditional lands and Community for the purposes of incarceration is a potential violation of this fundamental human right. Twenty five years after the Royal Commission Report into Aboriginal Deaths in Custody recommended that Indigenous prisoners should not be transferred away from their families unless it is absolutely unavoidable. Indigenous Australians are still incarcerated in ways which breach Article 27. In this article, we will discuss the parameters of Article 27 in the context of Indigenous rights advocacy in Australia. Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) establishes the fundamental human right of persons belonging to minority groups, such as the Indigenous peoples of Australia, to enjoy their own culture, including the right to use their own language/s, in community with other members of their group. As such, Article 27 protects both individuals and the specific ethnic or linguistic communities within which these individuals are based. In this article we consider the possibilities inherent in utilising Article 27 in legal advocacy on behalf of Indigenous Australians who have been incarcerated far away from their traditional lands and language groups and who have thus been deprived of their rights to enjoy their own culture and language. We will first consider the underlying objectives of the ICCPR and the function of the United Nations Human Rights Committee (‘UNHRC’) in dealing with violations of the rights set out within it. We then consider Article 27 in detail, and explore why this Article is of potential relevance in the context of the incarceration of Indigenous Australians, focusing specifically on the role of language and the loss of connection to culture via removal from Community and Country — two related rights specifically protected by Article 27. We conclude by arguing that the Complaints mechanism provided by the Optional Protocol is a useful, but still under-utlised, tool when advocating for the rights of Indigenous prisoners in Australia.