MACDONALD, Gaynor. Who Is The Human' in Human Rights'

Australian Journal of Human Rights
ISSN: 1323-238X (Print) 2573-573X (Online) Journal homepage: http://www.tandfonline.com/loi/rjhu20
Who is the ‘human’ in ‘human rights’?
Gaynor Macdonald
To cite this article: Gaynor Macdonald (2013) Who is the ‘human’ in ‘human rights’?, Australian
Journal of Human Rights, 19:1, 107-131
To link to this article: http://dx.doi.org/10.1080/1323-238X.2013.11882119
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Volume 19(1) Who is the ‘human’ in ‘human rights’? 107
Who is the ‘human’ in ‘human rights’?

Gaynor Macdonald*
The discourse of human rights is a field of contradictions, exacerbated by the abstract

notions of ‘human’ and ‘right’. Using an abstract notion of humanness for thinking
about rights can result in a denial of rights. The rights of Australian Aboriginal
Downloaded by [Australian Catholic University] at 03:07 08 October 2017
peoples, including their sovereign rights, have been denied through strategies of
racialising. To racialise is to attribute deficit. The denial of Aboriginal rights on the
basis of deficit has been an ongoing and successful strategy for containing Aboriginal
demands. The subject of rights is a mature, civilised, individualised subject. Human
rights abstractions do not deal well with the demeaning of a people in order to deny
them their specific rights.
Abstract rights, abstract humans

A discussion of human rights takes place where philosophy and anthropology
intersect with politics, and where abstraction meets materiality and sociality; it is
complicated by the language of the law, which resonates in different ways even in
‘Western’ cultures. The notion of rights confines relationships to legal definitions, in
practice avoiding the reciprocal responsibilities they entail. Rights discourse ‘replaces
relationships with rules; situational considerations, with abstract principles’ (Englund
2006, 48). Socially meaningful relationships are between persons, not humans. Social–
cultural worlds render various humans as persons of specific kinds with specific social
values. Only humans rendered as persons can hold rights because those rights are
defined and distributed within a specific social world. When abstracted, they become
‘missing persons’ (Douglas and Ney 1998). In political and legal discourse and
practice, real persons experiencing injustice can disappear from public consciousness
under the weight of other abstractions: citizen, refugee.
The notion of ‘rights’ assumes universal equality before the law, above ‘any actual
political and cultural factors influencing conflicts and disputes’ (Englund 2006, 49).
But what rights adhere to which persons and under which laws varies in place and
over time. The critique of ‘human rights’ as universalising, Western and imperialistic
developed because, to have rights, humans must become persons; persons are
culturally and socially constituted and their rights are specific. To universalise them
is to impinge on their right to their specificity. Rights are relational: they protect and
* Department of Anthropology, University of Sydney. Email: gaynor.macdonald@sydney.edu.au.

108 Australian Journal of Human Rights 2013
restrict, they are sites of contestation. Human rights as an abstraction thus obscures the
particular behind the general.
Like equality, the more universalised the idea of human rights, the more it privileges
sameness. It is easier to identify the persons who should be treated equally and are
not than the persons who are treated equally despite understanding themselves as
having a right to difference. Universalising the concept of human rights can render
people ‘equal’ such that the right to difference is denied: human rights discourse thus
becomes a form of moral imperialism (Stoll 2006), as well as political imperialism.

Colonised peoples encapsulated within nation-states seek rights based on difference,
not sameness. English-speaking settler-states have addressed this challenge in
various ways: Australia’s denial that Indigenous rights arise from prior sovereignty
as well as from cultural and other differences has been particularly marked.
This article explores contradictions in Australia, where denying and limiting the
rights of Aboriginal peoples1 has taken place through strategies of exclusion (which
draw on limitations of humanness) and inclusion (generalising rights). It describes
how humans, persons, rights and difference are redefined to achieve an ongoing
denial of rights. Discredited ‘race theories’ remain important to understanding the
‘human rights’ position of Aboriginal peoples today, because racialising remains an
ongoing strategy for deflecting demands for rights.
Historicising humanness: racialising Aboriginal Australians

Despite knowing that they had culture and a system of land ownership (Tench and
Flannery 2006; Collins 1798), the colonists arriving in Australia in 1788 denied the
status of persons with sovereign rights to the people they encountered. Indigenous
sovereign rights were recognised by the British legal system in the North American
colonies, and would be in New Zealand: in Australia, they were denied — in large
part because of ideas about human difference dominant at the time.
The United States Declaration of Independence asserted equality and freedom for all,
which had the effect of elevating theories of ‘race difference’ from political practice
to pseudo-science because slaves (mainly from Africa) were essential to America’s
economy. Slavery was an ancient practice: slaves were persons whose rights were
forfeited, but they were not considered less than fully human. This new idea allowed
the ongoing enslavement, through colonisation and dispossession, of peoples defined
1 Australia’s Indigenous peoples include Torres Strait Islanders as well as Aboriginal peoples. I do not
include the former in this analysis.
as less-than-human. Early in the 19th century, scientists claimed that human variation
indicated different ‘species’: polygenism positioned Africans between ‘man’ and
lower primates, Australian Aborigines between Africans and orang-utans.
At the time, humanitarian and anti-slavery movements challenged the right of

one person to own another, but ignored this hierarchising of humanness: all
‘God’s creatures’ (animals as well as humans) should be treated with respect.
Humanitarianism avoided rights: there was moral outrage about inhumane treatment,
but not about colonisation. The 1837 British parliamentary report into the treatment
of colonised peoples drew ‘clear lines between the civilized society of Europe and the
“degraded” uncivilized Aborigines’ (Blackstock 2000, 69). Humanitarian obligations
could replace recognition of sovereign rights because Aboriginal peoples were
uncivilised. Churches were charged with the responsibility ‘to ameliorate the effects
of colonial contact, as it pressed forth with colonization and the search for wealth’
(Blackstock 2000, 69). Understanding themselves as dispossessed, and making
demands for the return of their land (for example, van Toom 2006), Aboriginals were
in no position to demand recognition as sovereign peoples.
The mid to late 19th century saw theories of species difference give way to
monogenesis. While not Darwin’s intention, his theory of unilinear evolution was
meshed with Spencer’s argument that civilization evolved to create ‘social Darwinism’.
If humanness developed in unilinear fashion, ‘difference’ must mean some were less
evolved than others. Technology (pottery and writing) was one measure: ‘civilized’
technology meant the British had bigger brains. The sophistication of Aboriginal
technologies was unappreciated and Aboriginal Australians were described as the
most ‘savage’.
Although not uncontested, these views became popular. Social Darwinism, rendering
Aboriginal peoples a curious relic of the stone age, became a convenient narrative of
colonisation. The Age could publish the following in an editorial on 11 January 1888:
It seems a law of nature where two races whose stages of progression differ so greatly are
brought into contact, the inferior race is doomed to wither and disappear. The process
seems to be in accordance with a natural law which, however it may clash with human
benevolence, is clearly beneficial to mankind at large by providing for the survival of the
fittest. Human progress has all been achieved by the spread of the progressive races and
the squeezing out of the inferior ones. No one can contend that it would have been better
for the world had no European set foot on this continent and the blacks had been left to
the chance of reaching civilization by a slow course of natural development. It may be
doubted whether the Australian Aborigines would ever have advanced much beyond the
status of the neolithic races in which we found him, and we need not therefore lament his
disappearance. All that can be expected of us is that we shall make his last days as free from
misery as we can. [Page 4.]
Haeckel illustrated ‘scientific opinion’ at the turn of the century:
The mental life of savages rises little above that of the apes, with which they are
genealogically connected … Their intelligence moves within the narrowest bounds and one
can no more (or no less) speak of their reason than of that of the more intelligent animals …
These lower races (such as the Veddahs or Australian negroes) are psychologically nearer to
the mammals (apes or dogs) than to civilized Europeans; we must, therefore, assign a totally
different value to their lives. [Haeckel 1904, 56–57, emphasis added.]
De-humanised Aboriginal people had diminished social valuer and no rights worthy
of recognition.
Matter out of place: the civilising project

The consequences of social Darwinism persist: its spurious ideas continue to inform
the structural and cultural violence to which Aboriginal peoples were and are subject.
At the beginning of the 19th century, they legitimised the denial of rights based on
sovereignty; at the beginning of the 20th century, they provided for constitutional
discrimination. The progressive colony of South Australia had extended the franchise
to Aboriginal men and women, but upon Federation in 1901 all Australian Indigenous
peoples were excluded. This allowed states to treat Aboriginal people as wards (see
Anderson 2013), restricting freedom of movement, of marriage to whom they chose;
and to work where they wished. Aboriginal people were sequestered on reserves
at the whim of officials and denied all but the most basic education. Hundreds of
thousands of children were institutionalised and trained for menial labour.
Although discredited, the attitudes social Darwinism engendered are evident

throughout the 20th century because they continue to legitimise the denial of
Aboriginal rights. In the 1928 judicial enquiry into the Conniston massacres, after
asking why the massacre of a large number of Aboriginal people had been deemed
necessary, the judge was told that the police ‘shot to kill’, for ‘what is the use of
a wounded blackfellow hundreds of miles from civilization?’ (Northern Territory
Times, 9 November 1928, cited in Elder 2003). The attitude that Aboriginal lives
were worthless continued. In response to a claim that severe drought had forced
Aboriginal people into spearing the stock, a settler claimed that one ewe was worth
more than ‘all the blacks that were ever here’ (Letters to the Editor, Adelaide Register
Pictorial News, 7 February 1929, 7). These events attracted the attention of the League
of Nations and Australia faced a board of inquiry, with no difference in outcome.
Isabell Coe, a Ngunnawal/Wiradjuri artist, reveals the anger felt by Aboriginal

people about their unacknowledged histories. ‘Spoils of the boong hunts’ refers to
‘boong hunts’2 as if hunting Aboriginals were a sport like rabbit hunting:
The recorded so-called boong hunts were still happening here in Australia into the 1930s
or later. Our men, women and children were butchered. All of our men were murdered–
tortured because there was never any use for our men, our babies were bashed against the
trees and some of our young women were raped and murdered, but sometimes they were
allowed to live to be a slave and bear their children because there were no other women.
[Coe 1995.]
In ‘white Australia’, slight differences of skin and eye colour were associated with
backwardness, lack of civilization, poverty and disease. Older Aboriginal people in
rural New South Wales remember moving off a footpath to allow ‘white people’ to
pass, sitting in roped-off areas in the local cinemas, and being treated in sheds outside
the normal hospital wards. Although fully employed until the 1970s in the pastoral
and agricultural industries, they were a stigmatised social caste.
The Universal Declaration of Human Rights of 1948, which Australia had a role
in drafting, had no impact on these attitudes. On Queensland’s centenary in 1959,
barrister Sir Raphael Cilento, with journalist Clem Lack, published the Centenary
Committee’s commemorative history, designed for an international English-speaking
audience. They commented:
It is usual to assess the aboriginals by comparison with mature or, indeed primitive
civilizations but they must be considered as nomads of the jungle or savannah or
desert, comparable with the animal groups that inhabited those areas, for which they
felt an affinity. If their reactions are estimated along those lines, they become logical
and understandable. Like other nomadic food gatherers, the aboriginal ignored what he
did not comprehend or showed indifference, rather than astonishment, when faced by
something he failed to classify among his schedules of experience. Like his own halfwild
dogs, he could be frozen into shivering immobility or put to frenzied flight by people or
things that provoked impressions of terror. Like his dogs, too, he could be cowed by direct
and confident stare into a wary truce, but would probably attack with fury if an opponent
showed signs of fear. These are primitive reactions common to many feral jungle creatures,
and not uncommon to higher races. [Cilento and Lack 1959, 179.]
2 In the early 20th century, ‘boong’ became a derogatory term referring to Aboriginal people. It is still used
in racist jokes.
The first edition of the Encyclopedia Britannica in 1963 reflected similar thinking.
Citizenship was gradually restored to Aboriginal people by the states: in 1967, a

referendum allowed the Commonwealth to act on their behalf. These improvements
occurred partly because of the 1960s civil rights campaigns in the United States,
which turned international attention to the fact that Australian Aboriginal peoples’
rights were not ignored — they had no rights. Nevertheless, the new freedoms
Aboriginal people now had were resented by many: they had become ‘matter out of
place’ (Douglas 1966).
As the 1960s came to a close, the dominance of the pastoral industries in Australia
ended, with a collapse in Aboriginal employment opportunities. The ensuing
poverty continues to take its toll. In 1987, just before Australia celebrated its
bicentenary, the squalor of Aboriginal settlements came to attention. The president
of the Australian Human Rights Commission was moved to tears in Toomelah in
New South Wales when he found one water tap, flowing only 30 minutes each
day, for 500 residents; houses with up to 50 residents; and raw sewage flowing in
the streets (Murphy and Gibson 2008). Some years later, social geographer Richard
Howitt commented:
How many breaches of ‘basic rights’ might one list in the recent experience of Indigenous
Australians in your home communities? It is not just in the reprehensible circumstances of
the Toomelahs and Palm Islands that we can find such breaches. The challenge is not to find
them in the daily practices of society, but to address them and their causes. [Howitt 2002.]
The ‘daily practices of society’ continue. Improvements in Toomelah did not stem the
unemployment and social malaise that attended them: Toomelah is not a stable social
arena (Aboriginal Studies 2013). This history was lost on Amy Makim, Community
Project Officer with NSW Aboriginal Affairs, who was commissioned to work with
people in Toomelah over a two-year period. In January 2012, she posted anonymously
on Tracker (www.tracker.org.au), the website of the NSW Aboriginal paper:
Well done to all the aboriginal people who have worked hard, studied hard and created
a life for themselves and their families without the ‘pity funds’ from centrelink … I’m
guessing you either had someone with ‘white work ethics’ in your midst, stolen generation
or mixed race?? I don’t know any Murri who is an advocate, scholar, professional or person
of admiration that doesn’t have a heavy dose of white influence.
Face the facts! You have been conquered! Get over it! Get a job, look after your bloody
children and stop putting your hand out! You should have put up a better fight to keep
your land or more frankly the English should have wiped you all out because the 2.6% of
you are costing our country a fortune and making our country a place of ghetto violence! …
You now have black blood mixed with white trash creating one of the worse kind of human
societies. [Punctuation as in original.]
Tracker exposed Makin’s identity because her ‘comments were so extreme’

(AgendaTracker 2012). However, they are consistent with a history of deep-seated
racialising ideas. Unlike Makin, Beryl Petch of Ulladulla, New South Wales, had not
been concerned to hide her identity in a letter to the editor published in The Daily
Telegraph on 8 August 1988:
Stone age aborigines are unable to cope mentally:
The biggest hurdle is within the blacks themselves. In 1788 the blacks were a primitive,
almost stone age, race of people. Suddenly with the arrival of the white man, they were
catapulted into a time probably thousands of years ahead of what their evolvement would
normally have been. Physically and, more importantly, mentally they were, and are, unable
to cope.
This is not to be taken as detrimental to the aborigines. It is a simple statement of fact.

While we may be appalled by their horrendous living conditions, lazy attitudes, lack of
responsibility, disregard for personal hygiene and other negative ways we consider them to
have, many aborigines prefer to be as they are and only time will change them. Lots of time.
They have lived like this for centuries and as a race are still mentally evolving.
So let’s not keep repeating wornout stories over and over again. Let’s not blame ourselves
too much. Let’s ignore the almost white rebel rousers who insist they are speaking for their
black brothers. The white genes in such people have allowed them to leapfrog thousands
of years.
Their truly black ‘brothers’ will catch up, in time. Then, and only then, will we be able to
live as one people. [Petch 1988.]
Of greater concern is that social Darwinism’s narrative is evident at the highest

levels in the national consciousness. In 2000, Phillip Ruddock, federal Minister for
the Sydney Olympics and Minister of Immigration and Indigenous Reconciliation,
was asked by Le Monde: ‘Why do Aboriginal people remain the most disadvantaged
minority in Australia?’ He responded:
Of all the indigenous peoples on the planet, if you compare them with the Canadian or
American Indians, the Australian Aborigines were the people who came into contact with
developed civilisation latest. For them, the process of adjusting to western civilisation
happened more slowly. We are putting in an enormous amount of work to improve the
conditions of our indigenous people. But we are starting from a very low base. We’re
dealing with an indigenous population that had little contact with the rest of the world.
We’re dealing with people who were essentially hunter–gatherers. They didn’t have
chariots. I don’t think they invented the wheel. [Reynolds 2000; Hookey 2006.]
Le Monde’s journalist responded:

So you’re suggesting that the social situation of Aboriginal people in present-day Australia
is the consequence of their own socio-cultural ‘limitations’? Which means that white people
and the society they have constructed are in no way responsible for the condition of the
Indigenous People. [Reynolds 2000.]
Ruddock did not refute the comment. Prime Minister John Howard challenged
Ruddock’s critics, claiming that they illustrated ‘how trivial and demeaning much
of the debate on Indigenous affairs is in this country’. This attracted the attention of
communist commentator Nathan Barnes, who was writing a regular column at the
time for The Guardian:
Listening to media commentators you might get the impression that the recent comments
about Indigenous Australians made by Minister for Immigration and Multicultural
Affairs, Philip Ruddock, to the Le Monde and Washington Post newspapers, were merely an
‘oversight’, a ‘slip’, a ‘gaff’. Ruddock is a ‘moderate’ who was ‘taken out of context’, as the
man himself claimed. [Barnes 2000.]
Aboriginal responses were scathing, particularly that of Waanyi artist Gordon

Hookey, who painted a satirical ‘Ruddock’s wheel’, based on the chocolate wheels
found in fun fairs (James 2001).
Barnes was surprised that a racialising comment in Australia could be dismissed

as inconsequential, but this is common. As recently as 30 May 2013, footballer
Adam Goodes reported a 13-year-old spectator who referred to him as ‘an ape’.
Two days later, Eddie McGuire, media personality and Collingwood Football
Club president, made a public comment about the idea of using Adam Goodes
to promote a King Kong musical (Bodey 2013). McGuire claimed that his remark
was ‘a two-second slip of the tongue’, denying it was racially vilifying. The Age
newspaper (Paxinos 2013) apparently agreed, referring to McGuire’s comment as
merely a ‘gaffe’.
Aboriginal people began their new era of equality as citizens at an economic

disadvantage. In this capitalist society, they had had no means — throughout its
colonial era or its nearly 70 years of statehood — of accruing economic capital. In

Wiradjuri country in the 1960s, a rural recession began from which the state of New
South Wales never fully recovered. Even as their new freedoms allowed them to seek
employment, a history of restrictions and disadvantage, and competition with many
more post-World War II migrants, meant that Aboriginal people were competing with
experienced non-Aboriginal people for fewer and fewer opportunities. Subsequent
structural change and mechanisation reduced employment opportunities further
until, by the late 1980s, most Wiradjuri people were, as they expressed it, ‘on welfare’
(some form of social security benefit). This was relieved only by employment in
government-funded programs designed to alleviate the consequent social distress. In
other words, they had moved from almost full employment in the rural sector of the
real economy to what Aboriginal activist Noel Pearson (1999; see also 2001; Phillpot
2005) referred to as a ‘gammon economy’. Promises were made to address the deficit;
but racism resounds at the official level, and successful strategies (see Macdonald
2004) were shut down. Now the Wiradjuri are forced, unlike their capitalised
neighbours, to lead their lives within a bureaucratic net, an iron cage that further
confines and moulds them.
Sovereignty in a settler-state
The treatment of Australian Aboriginals shows that the 20th century was not the
great levelling emancipatory period that Western liberals had dreamt about at its
commencement. Marginalisation and poverty are endemic; discrimination continues.
By the beginning of the 21st century, formal apologies, truth commissions, appeals
for restitution, and restorative justice were causing histories to be rewritten elsewhere
(Barkan 2000), but the reluctance to acknowledge uncomfortable histories in Australia
remains intense.
Despite its international reputation in championing human rights, Australia was

slow to ratify United Nations instruments and reluctant to give effect to these in
domestic legislation. Indigenous rights emerged on the international agenda from
the 1960s, a movement culminating in the establishment of the UN’s Working Group
on Indigenous Populations in 1983. It is a movement that Australia has consistently
resisted.
Australian governments have consistently refused accountability for human rights

that they may be violating. Australia argues at hearings that collective rights,
specifically including the right to self-determination, should not be justiciable. Evatt
(2001) shows that the Australian government rejected the inclusion of a human
rights clause in a trade and cooperation agreement with the European Union — one
example of its resistance to any form of international monitoring of its human rights
record. The government’s attitude is that it does not want foreigners criticising
Australia’s human rights record or telling the country what to do.
Although Australia eventually ratified the six major UN human rights

treaties, accepting the obligation to give effect to these human rights standards, it
has not:
… with the exception of race and sex discrimination, taken action necessary to make these
rights fully effective in Australian law, directly enforceable by legislation … Australian

courts cannot determine whether this country has complied with its international human
rights obligations under the instruments or enforce the rights protected by the instruments
in the absence of legislation. [Evatt 2001.]
Australia defines human rights instruments as applying only to non-civilised

others (Iegg 2002). Amnesty International (2009) has criticised Australia’s human
rights record on numerous occasions. In 2000, four United Nations committees
considered reports from Australia: the Committee for the Elimination of all Forms
of Racial Discrimination (CERD 2000), the Human Rights Committee (HRC 2000),
the Committee on Economic, Social and Cultural Rights (CESCR 2000), and the
Committee Against Torture (CAT 2000). Mentioned were general concerns about
the situation of Indigenous peoples; the lack of remedies for the Stolen Generations;
high levels of discrimination, disadvantage, exclusion and poverty; the limited
role in decision making over their traditional lands and natural resources; the lack
of effective protection of Aboriginal heritage and traditional activities; and the
disproportionate effects of mandatory imprisonment. Of common concern was that
human rights cannot be effectively enforced in Australia (Evatt 2001).
Phil Lynch, executive director of the Human Rights Law Centre, claimed in 2012 that
there was:
… a yawning chasm between what Australia says and what Australia does when it
comes to respecting and implementing decisions of the UN’s human rights umpires —
independent, expert bodies such as the Human Rights Committee and the Committee
against Torture … Most complaints against Australia are either rejected or determined in
Australia’s favour. In the relatively small number of cases where Australia is found to be in
breach of international human rights law, it is alarming that we are increasingly refusing to
play by the rules. [Lynch 2012.]
This does not bode well for Aboriginal claims.

The denial of difference

The idiom of Art 2 of the Universal Declaration — ‘Everyone is entitled to all the
rights … without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status’
— carries an assumption that within each cultural world, every person should enjoy
equal ‘status’. Indeed, such assumptions underwrite human rights discourse.
This is a forceful denial of cultural rights — to distinctiveness, with the beliefs and
social and economic practices on which it rests. The language of the Declaration
assumes that the world population is subsumed into a democratic liberalist form
of modernity-as-world-culture: the person is a sovereign individual. Article 21(3),
requiring government to be based on ‘periodic and genuine elections which shall be
by universal and equal suffrage’, insouciantly assumes that the collective hierarchical
model of democratic capitalism is the ultimate and only suitable means by which
rights can be recognised. It devalues political systems not engaged in the practices of
modernity, where personhood is constituted within a very different world.
Aboriginal values are egalitarian, emphasising the integrity of persons, but are
neither democratic nor collective. People are not homogenised, everyone does not
have equal status or rights. Individuals accrue (and lose) respect — differentiated,
contextual and gendered — throughout their lives. Each person is both autonomous
and responsive. Myers explained:
… institutions and practices vital to the social order were understood as derived from
an order transcending the human or personal, mediated by elder males but not of their
creation: The Dreaming … In Pintupi representation, what we might call ‘public goals’ and
legitimate injunctions of personal autonomy at the collective level existed, as it were, prior
to society itself. [Myers 1980, 312.]
As a consequence, the Pintupi, who encountered modernity as an overwhelming

force in the 1970s, could not organise collectively to interact with the bureaucracy
with which they were confronted. Myers (1980, 312) saw their attempts fail in
situations in which the Dreaming imperatives had no salience because ‘they had
no mechanism for the deliberate production of authoritative, binding consensus for
collective action, in the face of the value placed on personal autonomy’.
The entwined cultural and economic systems that sustain Aboriginal sociality
are strained to breaking point by the demand that they adapt to modernity and
replace Aboriginal notions of personhood with those that suit the operations of the
bureaucracy (Macdonald 2010; in press).
For Aboriginal people, the issue that arises from these Articles is: How do you resist
your own fellow citizens, their ‘best intentions’, and the force of their law in your/
their country or territory to which you, as person (Australian/Aboriginal Australian),
belong? Your nation has agreed to ensure that ‘everyone’ has these rights and freedoms,
but delivers them by reducing you to childlike dependency, subjecting you to structural
and cultural violence on the grounds that your difference is uncivilised, inconsistent
with liberal democratic values (Macdonald 2008). Every structure Aboriginal people
encounter is flawed. Even their hard-won recognition of native title, ostensibly an
opportunity for some economic and social autonomy, requires them to form ‘prescribed
body corporates’ through which they remain accountable to government.
An example of the denial of the right to difference emerged in what became known
as the Northern Territory Intervention. In 2007, a report on child abuse in the
Northern Territory (Wild and Anderson 2007) was produced. It articulated known
problems and concerns, inviting a response from government. No-one anticipated
that Prime Minister John Howard’s government would use the child abuse narrative
to reduce, inter alia, Aboriginal political and property rights. The Northern Territory
Emergency Response (NTER) enabled the government to take control of more than
60 Aboriginal communities; to use federal police and the army to deal with law and
order; to abolish the right of Aboriginal owners to veto mining and other activities
on their lands; to take control from Aboriginal land councils (the government
leasing back to them their own townships); to end the permit system by which
Aboriginal councils controlled entrance to common areas, such as road corridors and
airstrips; to introduce extensive alcohol bans; to ban X-rated pornography; to audit
computers; to quarantine 50 per cent of all welfare payments to Indigenous people,
regardless of their personal situation, limiting spending to food and necessities in
designated stores; to enforce school attendance for people living on Aboriginal land
by linking income support and family assistance payments to school attendance; and
to require compulsory health checks of all Aboriginal children for signs of sexual
abuse (reconciliaction.org.au). This racialised strategy was aptly captured by Sydney
Morning Herald cartoonist Alan Moir’s drawing of Howard instructing troops to ban
alcohol, close bank accounts and freeze pensions in the wealthy eastern suburbs of
Sydney, on the grounds of increasing drug abuse.
One group was able to tone down the government’s plan. On advice from senior
paediatric and medical ethics specialists in Darwin, the government quietly reversed
its policy of coercive medical checks, accepting that doctors would not see parents
who had been coerced (Merkel 2012; Prof John Boulton, pers comm, 2007). The rights
of doctors, but not Aboriginals, were upheld.
Reflecting on these events, journalist Jeff McMullen commented:

The greatest tragedy in our history is that we keep repeating the same mistakes. When
Aboriginal people ask for real help on their terms the government betrays their trust by
treachery. The government so often creates a worse problem than the one it claims to be fixing
… The viciousness of the Intervention … is that preposterous Big Lie which says that whole
communities of Aboriginal people abuse their children, that Aboriginal parents en masse are
incapable and irresponsible, that Aboriginal women cannot responsibly manage their meagre
family budget, that Aboriginal men are all wife-beating, child molesting, drunken, apathetic
relics of a past hunter–gatherer society that is finished. [McMullen 2010.]
The focus on child abuse mobilised public sentiment but, in doing so, polarized it
(Austin-Broos 2011). Prime Minister Howard explicitly stated that ‘rights’ could not
be considered while ‘needs’ were so great, but Merkel, in his 2012 address to the
Human Rights and Equal Opportunity Commission, would later reflect:
It was said to be about sexual abuse, but quickly, within a month, it came to focus on
dysfunction in Aboriginal communities and then the real description of the intervention
was laid out by John Howard in August 2007. He said it was about mainstreaming or
normalising remote-living Indigenous Australians and he told residents at Hermannsburg
that, while respecting the special place Indigenous people in the history and life of this
country, he said their future could only be as part of the mainstream of the Australian
community. That was what it was about.
In January 2009, Aboriginal people from the Northern Territory, in a Submission in Relation
to the Commonwealth Government of Australia: a Request for Urgent Intervention under the
International Convention on the Elimination of All Forms of Racial Discrimination, claimed that
the NTER was racist and would have devastating social impacts (Concerned Australians
2012). The United Nations treaty committees confirmed that the program was racially
discriminatory and in breach of Australia’s human rights obligations.
The government addressed allegations of racism by making income management

non-discriminatory (it was introduced half-heartedly into western Sydney) and
justified the other actions as ‘special measures’. It agreed to reinstate the operations
of the Racial Discrimination Act 1975 (Cth) that had been suspended to implement the
Intervention, but this made little difference (Nicholson et al 2012). Aboriginal rights
— human, civil and Indigenous — remain compromised, and United Nations treaty
committees remain powerless to influence domestic outcomes.
Property and civil rights

Drawing on the expression used by Justices Deane and Gaudron in Mabo v Queensland
(No 2), 1992, when they described Aboriginal dispossession, Merkel (2012) referred to
the Intervention, ‘in its original form and in its current muted form’, as a history of
‘unutterable shame’. Article 17 of the Universal Declaration is a challenge for a settler-
state faced with ongoing demands from the peoples it colonised for return and/or
recognition of property and other rights based on prior sovereignty:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
‘Land rights’, introduced by the Whitlam government (1972–75) and legislated in the
Northern Territory in 1976, with the states following in various forms, was beneficial
legislation that, except symbolically, did not rest on rights.
The High Court’s 1992 decision in Mabo established that Aboriginal and Torres
Strait Islander rights in land may have survived the British assertion of sovereignty
where tenure had not been subject to change. The Native Title Act 1993 (Cth) reads
as if it provides a means by which Indigenous ownership can be recognised. But
this legislation was political: to establish ‘certainty’ for non-Indigenous owners of
property that their land holdings were safe from claim (Brennan 2003; Calma 2009).
Only then did it set up processes (and restrictions) whereby Indigenous Australians
could claim long-denied rights — but only in land (Anderson 2013; Jubb 2004; Foley
1997). The Native Title Act was followed by the Land Titles Validation Act 1994 (Cth),
also claimed to be discriminatory because:
… it makes native title more liable than other non-Indigenous land titles to extinguishment.
The interests in land of other racial groups in Australia cannot be extinguished in a
similar manner as that propounded in the Land Titles Validation Act 1994, but under
s 51 of the Commonwealth Constitution (acquisition of property on just terms in certain
circumstances). The rules of extinguishment violate the human right of Indigenous peoples
in Australia not to be arbitrarily deprived of their legal rights to land. Not only does the
Land Titles Validation Act 1994 dictate that Aboriginal interests in land take second place
to white interests in land, but compensation for the extinguishment of native title is limited.
[McNeil 1996, cited in Jubb 2004, 14; Anderson 2013.]
Yorta Yorta Aboriginal Community v Victoria, 1998, an early case brought by the
Yorta Yorta people of northern Victoria, was lost, Justice Olney finding that ‘the
tide of history had washed away’ rights based on traditional law and custom. In
the attention paid to this denial of the right to a history of change, few at the time
recognised that the judgment included another denial. The case was used to argue a
point not covered by the Mabo decision, when the High Court recognised that rights
to own land had survived. The Yorta Yorta decision held that no political (sovereign)
rights had survived. This decision was required to protect a state founded without
a formal ‘act of state’ that transferred sovereignty, as might have occurred had
sovereignty been wrenched through a war of conquest, or conceded by treaty with
the owners of the colonised lands.
Resentment of the recognition of Aboriginal ‘rights’ (see, for example, Forbes 1997)
was made more intense by the High Court’s decision in Wik Peoples and Thayorre People
v Queensland, 1996, acknowledging that native title rights could exist within pastoral
leases. The Howard government drew up a ‘Ten Point Plan’ to amend the Native Title
Act, significantly reducing the rights Aboriginal people had acquired through Wik. In
March 2000, the United Nations International Committee on the Elimination of Racial
Discrimination upheld an application from Indigenous Australians, confirming that
the amendments were discriminatory by preferring rights of non-Indigenous title
holders over Indigenous ones (Jubb 2004, 17).
In August 2000, the Australian government publicly condemned the Committee.

Prime Minister Howard announced that it intended intensifying ‘its current efforts
to reform the treaty committee system’, adopting a ‘robust and strategic approach’ to
its interaction, including:
… limitations on participation in the reporting process and on visits to Australia by UN

human rights mechanisms, the removal of unsuccessful asylum seekers from Australia, and
the refusal to sign or ratify the Optional Protocol to the Convention on the Elimination of
All Forms of Discrimination Against Women. [Evatt 2001.]
In her summary of these events, Evatt (2001) pointed out that the Australian
government ‘tried to deflect attention from the considered views expressed by
the treaty bodies about human rights issues in Australia by focusing attention on
the procedural and practical difficulties faced by those bodies’, questioning why
Australia would express interest in improving procedures when it steadfastly refused
to accept the views of the treaty bodies.
With a similarly cavalier attitude to Aboriginal entitlement, the Aboriginal Land Rights
Act 1983 (NSW) transferred 4600 hectares (Altman 1991, 6) from the Aboriginal Lands
Trust to local Aboriginal Land Councils. These remained from approximately 30,000
hectares gazetted since the late 19th century ‘especially for the use of aborigines’, the
rest having been revoked by successive state governments. In the first retrospective
legislation passed in Australia, rather than evict and compensate people in possession
of illegally appropriated land, returning the properties to Aboriginal people, the
NSW government passed the Retrospective Validation of Revocations Act 1983 (NSW)
(Macdonald 2004; Behrendt 2003).
Shortly before, there had been an outcry about the federal government’s intention
to introduce retrospective taxation law. Senator Don Chipp (1982) stated: ‘I do not
trust politicians to legislate retrospectively. One of the few protections that the
ordinary citizen has is that he knows the law’ (see, further, Grabosky 1989, 143–49).
Faced with protecting Aboriginal rights, the government of the day did not want to
know its law: there was no public outcry at this further dispossessing of Aboriginal
people.
The core principle of human rights is that individual rights transcend state
sovereignty. While the Australian nation-state defines ‘human rights’, there can
be only a very limited conception of individual rights (Moyn 2010). But this poses
another conundrum for indigenous peoples encapsulated within nation-states:
individual rights do not protect collective rights. This sets up a tension between
human, indigenous, and civil rights that nation-states — whose interests are served
by civil, but not human or indigenous rights — can exploit.
It has proved convenient to successive governments to set aside demands for

indigenous rights on the grounds that civic (humanitarian) needs have to be met first.
Indigenous rights are threatening, sick and poor people are not.
The discourse of deficit

A person, as Mauss (1985) said in his well-known 1938 lecture, has a mask and a
name, the markers of belonging and of recognition. The human becomes a person
through the roles, statuses, relationships and etiquettes that his or her culture
requires. Aboriginal people are caught in a dilemma not of their own making. On
the one hand, they continue to value many aspects of their cultural difference,
notwithstanding changes in their lives; on the other hand, they have been excluded
from the mainstream society over generations such that they could rarely have
become ‘Australian persons’ in terms of mainstream expectations. Many do not find
the social world of the ‘mainstream’ attractive (Macdonald in press). Participation in it
entails a violation of their being as an Aboriginal person; they desire more autonomy,
not better incorporation (Tonkinson 2007). They live with the contradictions of having
very high value in their own contexts and almost none in the broader society. This
disjuncture becomes increasingly difficult to manage with the escalating scale and
intensity of socially and culturally damaging interventions.
Wilson and Brown (2008) usefully distinguish between humanitarianism and human
rights, recognising that narratives of suffering are used to mobilise compassion. In the
case of the NTER, humanitarianism overwhelmed human rights. By reiterating the
common refrain that Aboriginal people can’t manage their own affairs, it reinforced
the stigma of deficit and incompetence while denying governmental culpability for
the structural and cultural violence (Galtung 1969; 1990) they experience. Reminiscent
of 19th-century humanitarianism, ‘need’ takes rights off the agenda.
‘Mainstreaming’ has become the euphemism for meeting state-defined Aboriginal

needs, requiring Aboriginal people to behave according to criteria expected of
a ‘civilised’, mainstream, middle-class Anglo-Australian. Special programs and
services have to be legitimised in terms of need, as Aboriginal people do not have
legal rights as distinctive (indigenous) ‘peoples’, except in the limited and not yet
widespread recognition of native title: state governments are prepared to spend
millions of dollars to relegate native title ‘rights’ to history.
The Universal Declaration of Human Rights has been unable to address the systemic
racism and structural and cultural violence embedded in the Australian nation-state.
Criticism by United Nations committees implicitly challenges state sovereignty, and
these committees have been unable to challenge Australia’s defence of its sovereign
rights, leaving Aboriginal people without the protections of their instruments.
Australia has a particularly intractable record when it comes to addressing its own
abuses of human rights, one not limited to Aboriginal peoples’ rights.
Lynch (2012) points out that the Australian government has built significant political
and diplomatic capital with its rhetoric around respect for the United Nations and
international human rights law:
The Government’s ‘Human Rights Framework’, designed for a domestic audience,

proclaims that the Government is committed to ‘respecting the core UN human rights
treaties to which Australia is a party’. The Government’s UN Security Council pitch,
designed for an international audience, markets Australia as a ‘principled advocate of
human rights for all’ and as a country which ‘does what it says’. [Lynch 2012, citing the
Department of Foreign Affairs and Trade.]
Yet he argues that, in practice, ‘Australia’s duplicitous approach to United Nations

treaty bodies is undermining human rights and the rule of law’ (Lynch 2012).
Aboriginal peoples are not the only ones caught up in Australia’s reluctance to put
United Nations instruments to effect. However, in the Aboriginal case, the stakes are
high because Australia’s sovereignty is grounded in the denial of Aboriginal rights.
The brief history presented here demonstrates two core issues. One is the refusal in
Australia to acknowledge difference and thus rights based on difference, including
those associated with prior sovereignty: the nation was founded on their denial and
perpetuates this denial. The second is the refusal to acknowledge the extent of the
current humanitarian crises, and to improve matters by radically restructuring social

and economic systems.
While the United Nations committees have made little impact, it is also the case
that, in privileging the individualised liberal subject, human rights instruments
have weak mechanisms through which to address the politics of difference. This
allows Aboriginal cultural difference to be treated as ‘part of the problem’, standing
in the way of Aboriginal people attaining (liberal) civilisation. Yet it is not only the
supposedly uncivil state of their pre-colonial world but also their very capacity for the
fulfilment of humanity and civilisation that has been, and continues to be, explicitly
and implicitly denied to Aboriginal people. Sadly, this is reinforced each time
Australians are faced with appalling statistics on Aboriginal living conditions and ill-
health and are admonished to help ‘close the gap’. Such ‘problematising’ reinforces
deficit (Macdonald 2011).
Racialising is the attribution of deficit (Austin-Broos 2005). As indigenous rights

discourse gained traction in the later part of the 20th century, the emphasis in
social Darwinian thinking in Australia shifted from physical evolution to social
evolution, expressed as social incapacity. Coupled with the increasing economic
marginalisation of Aboriginal people, this effectively reinforced notions of deficit as
the means by which to deny rights. This has two effects. First, it denies the legitimacy
of difference, implicitly allowing notions of (universalising/generalising) ‘human
rights’ and ‘citizenship rights’ to undermine the rights of Aboriginal persons. Their
plight is de-historicised, rendered as humanitarian need, and rights are swept into a
‘very hard’ basket. Treated as ‘equals’, they are clearly ‘not coping’ and the cycle of
denial on the grounds of deficit continues. This is then compounded by a reference
to that same deficit to ‘explain’ the lack of real progress in achieving more equitable
outcomes.
The history of the reproduction of Aboriginal people as deficit is important because

it cannot be interpreted as vestiges of 19th-century thinking, to be eliminated
through changing attitudes or avoiding gaffes. Attributions of deficit continue to
serve the interests of those who refuse to recognise Aboriginal rights. Racialising
is a strategic denial of rights. A nation-state will not level or erase the differential
social values attributed to persons when these are in its own interests to maintain.
The impediments to the realisation of Aboriginal rights lie in the fact and history
of Australian sovereignty: to attribute deficit to Aboriginal peoples is a necessary
strategy in Australia nation-state building.
The concept of ‘human rights’ enshrined in the Declaration of Human Rights allows
for racism to the extent that it implicitly makes rights based on difference of less
consequence than rights based on equality. As a generalisation, ‘human rights’

assumes a universal moral order, a uniform culture, and a levelling of inequalities. Its
strengths are evident when those who should be equal are treated unequally. What
it does not deal well with is the right to difference, and the ways in which deficit is
used to deny rights. The Australian case challenges the assumption that human rights
discourse has the capacity to work towards the genuine recognition of difference within
contemporary state and civil society contexts. l
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Australian Journal of Human Rights

ISSN: 1323-238X (Print) 2573-573X (Online) Journal homepage: http://www.tandfonline.com/loi/rjhu20

Who is the ‘human’ in ‘human rights’?

To link to this article: http://dx.doi.org/10.1080/1323-238X.2013.11882119

Published online: 30 Jun 2017.

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Who is the ‘human’ in ‘human rights’?

The discourse of human rights is a field of contradictions, exacerbated by the abstract

Abstract rights, abstract humans

* Department of Anthropology, University of Sydney. Email: gaynor.macdonald@sydney.edu.au.

becomes a form of moral imperialism (Stoll 2006), as well as political imperialism.

Historicising humanness: racialising Aboriginal Australians

At the time, humanitarian and anti-slavery movements challenged the right of

Haeckel illustrated ‘scientific opinion’ at the turn of the century:

Matter out of place: the civilising project

Although discredited, the attitudes social Darwinism engendered are evident

Isabell Coe, a Ngunnawal/Wiradjuri artist, reveals the anger felt by Aboriginal

Citizenship was gradually restored to Aboriginal people by the states: in 1967, a

place’ (Douglas 1966).

Tracker exposed Makin’s identity because her ‘comments were so extreme’

Telegraph on 8 August 1988:

Stone age aborigines are unable to cope mentally:

This is not to be taken as detrimental to the aborigines. It is a simple statement of fact.

Of greater concern is that social Darwinism’s narrative is evident at the highest

Le Monde’s journalist responded:

Aboriginal responses were scathing, particularly that of Waanyi artist Gordon

Barnes was surprised that a racialising comment in Australia could be dismissed

Aboriginal people began their new era of equality as citizens at an economic

colonial era or its nearly 70 years of statehood — of accruing economic capital. In

Despite its international reputation in championing human rights, Australia was

Australian governments have consistently refused accountability for human rights

Although Australia eventually ratified the six major UN human rights

rights fully effective in Australian law, directly enforceable by legislation … Australian

Australia defines human rights instruments as applying only to non-civilised

This does not bode well for Aboriginal claims.

The denial of difference

As a consequence, the Pintupi, who encountered modernity as an overwhelming

Reflecting on these events, journalist Jeff McMullen commented:

The government addressed allegations of racism by making income management

Property and civil rights

In August 2000, the Australian government publicly condemned the Committee.

… limitations on participation in the reporting process and on visits to Australia by UN

It has proved convenient to successive governments to set aside demands for

The discourse of deficit

‘Mainstreaming’ has become the euphemism for meeting state-defined Aboriginal

The Government’s ‘Human Rights Framework’, designed for a domestic audience,

Yet he argues that, in practice, ‘Australia’s duplicitous approach to United Nations

current humanitarian crises, and to improve matters by radically restructuring social

Racialising is the attribution of deficit (Austin-Broos 2005). As indigenous rights

The history of the reproduction of Aboriginal people as deficit is important because

consequence than rights based on equality. As a generalisation, ‘human rights’

Wik Peoples and Thayorre People v Queensland [1996] HCA 40

Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606

Land Titles Validation Act 1994 (Cth)

Native Title Act 1993 (Cth)

Racial Discrimination Act 1975 (Cth)

Retrospective Validation of Revocations Act 1983 (NSW)

International legal materials

Altman J (1991) ‘Society and culture’ [Online] Available: www.anu.edu.au/caepr-dev/

Amnesty International (2009) ‘Optional Protocol — Australia to improve human