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MacGillvray, Peta --- "Aboriginal People, the United Nations and Racial Discrimination: The Request for Urgent Action in the Northern Territory" [2009] IndigLawB 1; (2009) 7(10) Indigenous Law Bulletin 6

Aboriginal People, the United Nations and Racial Discrimination: The Request for Urgent Action in the Northern Territory

By Peta MacGillvray.

A group of Aboriginal people living in areas regulated by the Northern Territory Emergency Intervention has brought a Request for Urgent Action (‘the Request’) to the UN Committee for the Elimination of All Forms of Racial Discrimination (‘the Committee’). The Request, brought by the Prescribed Areas People Alliance (‘PAPA’), argues that measures introduced under Intervention legislation put Australia in flagrant breach of its obligations under the International Convention on the Elimination of all Forms of Racial Discrimination (‘CERD’).[1] The Request argues that, taken together, the measures amount to ‘serious, massive and persistent racial discrimination’[2] with widespread and oppressive impact on all aspects of the lives of people living in the prescribed areas.

PAPA argues that the measures are discriminatory and arbitrary in nature, and have the potential to ‘cause irreparable harm to Aboriginal people in the Northern Territory.'[3] The group stresses the haste with which the Intervention was introduced: former Minister for Families, Community Services and Indigenous Affairs, Mal Brough, revealed that the policy behind the Intervention took only 48 hours to formulate.[4] Further, the Northern Territory National Emergency Response Act 2007 (Cth) (‘the NTNER Act’) was drafted and enacted in only 10 days,[5] without any consultation with Aboriginal communities. Taken together, PAPA submits that it is a matter of international concern that a State party can implement legislation overriding CERD provisions ‘with impunity.’[6] Accordingly, the group requests that the Committee make a recommendation compelling the Commonwealth to:

a) take steps to immediately reinstate the Racial Discrimination Act 1975 (Cth) (‘RDA’); and

b) suspend the Intervention regime until the Committee is satisfied that each of the measures is properly a ‘special measure’ as provided by CERD.

PAPA further seeks that the Committee direct Australia to ‘enter into discussions with the Aboriginal peoples of the Northern Territory to develop solutions’ in compliance with CERD and Australia’s other obligations under international law.[7]

The following discussion will summarise the main sections of the submission. Part I will review the impact of Intervention measures on Aboriginal people in the Northern Territory. Part II will review the particular articles said to be contravened by Intervention measures.

Part I: Impact of the Intervention on Aboriginal People

The Intervention and ‘Special Measures’

PAPA argues that Intervention measures and their supporting legislative framework are specifically targeted at Aboriginal people.To avoid a finding that they are racially discriminatory, the NTNER Act explicitly declares the measures to be ‘special measures’ under RDA and CERD. PAPA argues that this is a false construction because, to be so classified, ‘special measures’ must be for the sole purpose of advancing Aboriginal people, must be necessary and must be temporary.[8] The Request argues comprehensively that the measures fail on each of these elements.[9] The submission argues that the Commonwealth Government’s understanding of 'special measures' is irreconcilable with international legal understanding of the term.[10] Further, PAPA argues that the legislative declaration is internally inconsistent because, ‘if the provisions were special measures, there would be no need to exclude the operation of the RDA.’[11]

Excluding the Racial Discrimination Act

Australia's only protection against racial discrimination is the RDA, which incorporates CERD into domestic law. As a Federal statute, it can be repealed and amended by subsequent legislation; this much has been achieved by the NTNER Act, which explicitly excludes the operation of Part II of the RDA in ‘prescribed areas’.[12] Part II prohibits direct and indirect discrimination, provides for equality before the law and the enjoyment of rights regardless of race. The NTNER Act also excludes Queensland and Northern Territory anti-discrimination laws,[13] leaving no domestic legal avenue to seek relief for any discrimination caused by Intervention measures.

Previously, the RDA has been suspended to amend the Native Title Act 1993 (Cth) (which removed existing guarantees of rights to Indigenous people) and also when enacting the Hindmarsh Island Bridge Act 1997 (Cth).[14] This only demonstrates further how feeble Australia's laws are in the prevention of racial discrimination, particularly as far as Indigenous Australians are concerned.

Compulsory Acquisition of Land

The combination of compulsory five-year leases, Commonwealth powers over Aboriginal townships, and the suspension of the Native Title Act has weakened Aboriginal property rights in the Northern Territory.[15] Commonwealth leases, for instance, create a legal relationship of lessor and lessee. However, within this arrangement, Aboriginal people are not afforded the rights normally enjoyed by lessors: the Commonwealth has unilateral power to dictate and control the terms of the lease (including the termination of any rights, titles and interests).[16] There is no requirement for consent by Aboriginal Land Trusts, Aboriginal Land Councils or Aboriginal Associations when entering into a lease agreement.[17] PAPA is particularly concerned that, while the Commonwealth may vary or terminate the lease without reference to the Aboriginal land holders, Aboriginal land owners are explicitly precluded from doing so.[18]

Compulsory Income Management

PAPA argues that compulsory income management is discriminatory because it is determined solely on the basis of race. Income quarantining applies to people receiving a social security payment and is determined according to residence in a ‘Prescribed Area’. This style of social security quarantining does not exist in any other Australian jurisdiction. The regime involves the compulsory diversion of funds into an 'income management account' which can only be spent on food, clothing, household items, household utilities, childcare and development, education and training. It is prohibited from being spent on items such as alcohol, tobacco, gambling, and pornography.[19] Moreover, income that is compulsorily quarantined can only be spent in particular licenced stores in the Northern Territory.

Significantly, the NT Review Board recommended that income quarantine measures continue only on a voluntary basis. The Board recommended that, where income quarantining was provided by statute, it must be open to administrative review and be supported by services to improve financial literacy.[20] However, these recommendations have been rejected by the Commonwealth.

Powers over Aboriginal Community Councils

Under the NTNER Act, the Minister has broad powers to intervene in the function and operation of Aboriginal organisations and representative community councils.[21] These are described as ‘community services entities’ and ‘business management areas’. The broad discretionary powers allow the Minister to amend or terminate funding agreements between the Commonwealth and the community services entity, to transfer ownership of Aboriginal assets and to take over the management of local councils and incorporated associations.[22] These broad powers mean that the Commonwealth has the authority to

dictate, direct and control all community service delivery...irrespective of the wishes or rights of these persons or of the representative bodies established to deliver those services.[23]

Aboriginal Customary Law

PAPA submits that the Intervention’s exclusion of Aboriginal customary law as a relevant consideration in bail and sentencing matters constitutes serious discrimination.[24] Established legal principle in this area finds that all relevant factors – including cultural factors – should be considered in determining moral culpability in sentencing; the practical effect of such exclusion is that Aboriginal people are sentenced far more harshly in light of circumstances that are unique to them.[25]

Community Development Employment Projects

Community Development Employment Projects (‘CDEP’) form a ‘work for the dole’ program for Indigenous people. Assisting them in securing employment, the program has been in operation nationally since 1997.[26] The rationale behind abolition of the CDEP was to ensure that all income derived from such programs could be reclassified as ‘welfare’ payments; this would bring former CDEP participants under Commonwealth control through the income management regime.[27] The abolition of CDEP has had a resounding effect on Aboriginal people: on an individual level, workers and their families are denied the right to make independent economic decisions. On a collective level, communities relying on the program are denied services otherwise provided by CDEP organisations.[28]

Impetus for Urgent Action

PAPA submits that the Intervention implements a raft of racially discriminatory measures that disproportionately affect Aboriginal people in the Northern Territory.[29] The regime impacts upon almost every aspect of the lives of Aboriginal people, providing for ‘control of personal income without redress; prescriptions as to where income can be spent and what can be bought; control of Aboriginal organisations, assets and land by Government employees; and the removal of culture in bail and sentencing’.[30]

PAPA relies on the findings of the NT Review Board in support of the Request: specifically, the Board reports many experiences of racial discrimination and humiliation;[31] widespread Aboriginal hostility;[32] intense hurt and anger at race-based isolation;[33] and an overwhelming sense of betrayal and disbelief at the path adopted by Commonwealth.[34] Notwithstanding these findings, the Rudd Government has preserved many of the oppressive and discriminatory features of the Intervention. PAPA submits that this has severely undermined the relationship between Aboriginal people and the Australian Government;[35] effectively, the Government has chosen to continue a regime that is known to inflict serious harm upon Aboriginal communities.[36] Moreover, PAPA submits that the Intervention measures will erode fundamental Aboriginal cultural and social norms such as communal ownership of land and principles of self-determination.[37]

Part II: Intervention Measures and Australia’s Obligations under CERD

Australia is a signatory to CERD and has ratified its protocols; the Federal Government is therefore obliged under international law to follow and adhere to its provisions. PAPA argues that, by continuing discriminatory Intervention measures, the Commonwealth is in violation of multiple CERD obligations, namely:

• Art 1: the measures are discriminatory;[38] they cannot be excused as ‘special measures’[39] because they do not ‘advance’ Aboriginal welfare,[40] are not ‘necessary’,[41] are disproportionate and arbitrary,[42] were introduced without any community consultation[43] and work an ‘unjustifiable disparate impact on Aboriginal people’.[44]

• Art 2: the suspension of the RDA illustrates that Australia is in breach of its responsibilities to implement CERD domestically.[45]

Art 5: the measures deny Aboriginal people equal enjoyment of civil, political, economic, social and cultural rights and freedoms without racial discrimination.[46]

Art 5(a): since its inception, the Intervention has denied Aboriginal people equal treatment before the law; the measures deny Aboriginal people rights to appeal, procedural fairness and due process of the law.[47] They further prohibit judicial consideration of customary law and cultural practice in bail and sentencing matters.[48] As a party to CERD, the Commonwealth is required to show respect for, and recognition of, traditional systems of justice of Aboriginal peoples.[49]

Art 5(c): the measures prevent Aboriginal people from fully participating in public affairs. They were introduced without any consultation with Aboriginal communities or organisations.[50] Moreover, the Minister’s very broad powers over Aboriginal community councils and organisations have the potential to shift the balance of power in negotiations; Aboriginal service providers may be pressured to act in a manner contrary to their communities’ interests, thereby restricting participation and ownership.[51]

• Art 5(d)(i): income quarantining impairs freedom of movement in two distinct ways. First, the mobility patterns of Aboriginal people are changing as people are forced to travel to access Centrelink and stores in urban areas. Second, the nature of income quarantining means that resources can no longer be pooled, forcing everyone – including vulnerable people – to travel greater distances in order to secure basic needs.[52]

Art 5(d)(v): the compulsory acquisition of land is said to breach the right to own property. The removal of rights created by the Native Title Act and the Land Rights Act 1976 (NT) undermines the intrinsic connection between Aboriginal culture Aboriginal land.[53]

Art5(e)(iv): income management further breaches the right to receive social security entitlements without discrimination.[54]

• Art5(e)(vi): the Intervention prevents Aboriginal people from fully accessing and participating in cultural activities.[55]

Art 5(f): income management impairs the right to equal access to any public place or service, creating de facto segregation between Aboriginal and non-Aboriginal people.[56]

Art 6: the Commonwealth has failed to provide any redress for damage – material or moral – suffered as a result of discrimination caused by the Intervention.[57]

Art 7: the rhetoric behind the Intervention, and its methods of implementation, is inconsistent with Commonwealth obligations to take steps to combat racial prejudice.[58]

• General Recommendation 21: by denying Aboriginal communities the authority and capacity to make decisions, the Intervention contravenes the recommendation that Australia provide for Indigenous self-determination.[5]

General Recommendation 23: Intervention measures that destabilise collective land ownership, or prevent traditional owners from fulfilling cultural obligations, are inconsistent with Commonwealth obligations to recognise and respect ‘Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation’.[59] This obligation arises from the fact that many of the world’s Indigenous people are still ‘deprived of their human rights and fundamental freedoms’; that they have ‘lost their land and resources to colonists, commercial companies and State enterprises’.[60] PAPA argues that the Intervention measures work to undermine Indigenous cultural and social norms and are incompatible with protecting rights specific to Indigenous people.

Conclusion

Since the Rudd Government came into power in 2007, pressure has been mounting for a wholesale revision of Interventions measures. Until now, though, very little action has been taken to redress the inequitable and discriminatory elements of the regime. The Request prepared by PAPA is a comprehensive attempt to apply international pressure to force a fundamental shift in Government policy. This extensive audit of Intervention measures argues that, while the Intervention imposes racially discriminatory laws and actions, it will do little to eliminate disadvantage, poverty or social dysfunction in Aboriginal communities.

Should the Committee find in favour of the complainants, there will be a great deal of pressure on the Rudd Government to seriously re-examine the Intervention measures. Of course, as a sovereign state, no decision by the Committee – whether in favour of PAPA or not – is legally binding on the Commonwealth. Such a determination is only effective to the extent that it represents a public declaration that Australia has failed to honour its obligations under international law. However, it would be most alarming if the Government were to ignore an adverse assessment by the Committee.

Such a finding would formally put the Federal Government on notice that some elements of the Intervention are racially discriminatory and in breach of international law. This would make it very difficult to justify ongoing suspension of the RDA. Ultimately, a favourable decision by the Committee would be a win for Aboriginal people: as a positive affirmation of Indigenous rights, it would create a strong platform to advocate for a fundamental reassessment of the Intervention as an effective vehicle for socio-economic change.

Peta MacGillivray is a law student, research assistant and National Indigenous Cadet holder in the Faculty of Law at UNSW.


[1] Request for Urgent Action under the International Convention on the Elimination of All Forms of Racial Discriminationsubmission in relation to the Commonwealth Government of Australia, 28 Jan 2009, available at <http://www.hrlrc.org.au> .

[2] Ibid, 7.

[3] Ibid, 24 – 25.

[4] ABC News, ’Intervention Created in Just 48 Hours: Brough’, Ibid, 6.

[5] Ibid, 10.

[6] Ibid, 5.

[7] Ibid, 61.

[8] Ibid, 30-35.

[9] Ibid, 30-7.

[10] Ibid, 30.

[11] Ibid, 5-6.

[12] NTNER Act 2007 (Cth), s 132(2).

[13] Ibid.

[14] Request for Urgent Action, above n 1, 29.

[15] Ibid, 17.

[16] Ibid.

[17] Ibid.

[18] Ibid, 18.

[19] Ibid,15.

[20] Ibid.

[21] Ibid, 20.

[22] NTNER Act, above n 12, ss 65, 68(2)(a)(b) and Division 4, Part 5, see Request for Urgent Action, above n 1, 20.

[23] Request for Urgent Action, ibid, 20.

[24] NTNER Act, above n 12, s 90, Request for Urgent Action, ibid, 21.

[25] Ibid, 23.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid, 24.

[30] Ibid.

[31] Peter Yu et al, Report of the NTER Review Board (2008), 8.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Request for Urgent Action, above n 1, 25.

[36] Ibid.

[37] Ibid.

[38] Ibid, 27-37.

[39] Ibid, 30.

[40] Ibid, 32.

[41] Ibid, 33.

[42] Ibid, 34.

[43] Ibid, 35.

[44] Ibid, 37.

[45] Ibid.

[46] Ibid.

[47] Ibid, 38.

[48] Ibid, 39.

[49] Ibid, 38.

[50] Ibid, 44.

[51] Ibid, 45.

[52] Ibid, 46.

[53] Ibid, 47-51.

[54] Ibid, 51-54.

[55] Ibid, 54.

[56] Ibid, 55.

[57] Ibid, 56.

[58] Ibid, 57

[59] Ibid point 4 (a)-(e).

[60] Office of the High Commissioner for Human Rights, CERD General Recommendation 23: Indigenous Peoples, Fifty-First Session 1997, available at <http://www.unhchr.ch/html/menu2/6/cerd.htm> , accessed 25 February 2009.


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