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Alastair Nicholson Online Opinion 20 December 2010
Australia is the only western nation without a bill of rights and, indeed, is one of only a few countries in the world to lack such a bill. To me this is a strange paradox in a country that has in many ways been a world leader in promoting international human rights, and has not been slow to criticise human rights breaches by other countries.
Yet every attempt to introduce a bill of rights in Australia has been a failure at federal level, largely through lack of leadership and political will.
Today, there is no more graphic example of the need for human rights protection in Australia than the events surrounding the Northern Territory Emergency Response ("the intervention").
The Howard Government announced the intervention in June 2007, ostensibly to protect Aboriginal children from sexual and other abuse. In considering the motivation for the intervention it should not be forgotten that there were a number of mini-interventions driven by Minister Brough between early 2006 and the commencement of the intervention itself.
These were an attempt to close the Alice Springs town camps, 99-year leases of townships coupled with remote area housing, and the abolition of the permit system.
I think these actions indicate the real motivation for the intervention, which seems to be more about land than children. However a series of events involving some particularly troublesome crimes and issues in relation to children played into the government's hands and made the intervention possible.
The intervention was made in response to a Northern Territory Government commissioned report, Little Children are Sacred. The report revealed a serious situation in relation to the abuse of Indigenous children in the Northern Territory and called for urgent action by the Northern Territory Government. Significantly, the authors said:
" ... we have specifically referred to the critical importance of governments committing to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities ... We have been conscious throughout our enquiries of the need for that consultation and for Aboriginal people to be involved."
Six days later came the federal government intervention - entirely without consultation with the Indigenous people and ignoring the substantive recommendations of the report to which it was purportedly responding.
Some of the many objectionable aspects of the legislation involved:
- the suspension of the Racial Discrimination Act 1975;
the adoption of income protection;
the removal of social security benefits where a child is considered to be in need of protection, where the parents reside in specified areas of the Northern Territory, or where a child has an unsatisfactory attendance at school;
preventing a court from taking into account Indigenous customary law or practices in sentencing offenders;
the acquisition of aboriginal lands by means of compulsory leases of up to five years duration;
restrictions on the use of alcohol and pornography on Aboriginal lands, coupled with heavy penalties for breach and offensive signage at the entrances to those lands; and
the abandonment of the Community Development Employment Projects Program.
It takes only a moment to appreciate the injustice of most of these measures so far as the Indigenous community in the Northern Territory is concerned.
The suspension of the Racial Discrimination Act involved a direct attack on the meagre rights and freedoms of Indigenous people and should never have been countenanced. However, it was the essential plank that enabled the intervention to proceed. Almost all of the measures associated with the intervention involved direct racial discrimination and breaches of the human rights of the Aboriginal citizens involved.
It is noteworthy that in the presence of a bill of rights most of the objectionable aspects of the legislation, and much of the legislation underpinning that social policy, would have been liable to be struck down. A bill of rights would thus have acted as a real protection against the unwarranted seizure of power that has been involved.
However by cloaking itself in the guise of child protection, the government could brand those who opposed it as being in favour of child abuse. Because it controlled both houses of parliament it could also override the protection afforded by the Racial Discrimination Act, something that it could never have done if those rights had been enshrined in the constitution.
The power to restrict payment of social security benefits because a person lives in particular areas of the Northern Territory was clearly aimed at forcing Indigenous people to live in selected town areas that the government determined, rather than where the people themselves determined.
Sadly the present government has continued with this strategy. Such measures are intolerable in a democratic society and would never be tolerated in the broader Australian community.
Similarly, benefits may be withdrawn in the event of unsatisfactory school attendance. Again this would be unacceptable in the wider community. Further, it involves a complete lack of appreciation of Indigenous culture, which does not necessarily involve a child living with the birth parents.
Wholesale compulsory acquisition of land for unstated purposes is another measure that would not be tolerated by the Australian community as a whole.
The situation was exacerbated by the then government's (and the present government's) inability or failure to give any sufficient explanation as to why all of these measures were necessary to protect the children.
I think that as time passes it becomes clear that the intervention was an exercise in social engineering to destroy Aboriginal culture and Aboriginal attachment to their traditional lands and to force Aboriginal people into suburban agglomerations to adopt a white lifestyle.
From the point of view of the then opposition, now government, one of the most shameful aspects of this affair was its failure to oppose the legislation. In government it has not abandoned the intervention, although several of its aspects have been alleviated in a cosmetic way.
The intervention has proved to be a costly failure in the object of protecting Indigenous children. None of the recommendations of the original report that sparked the intervention have been put into effect. The plight of Aboriginal children remains serious, despite countless reports and other interventions.
The Rudd government had promised to reinstate the Racial Discrimination Act, yet the deeply flawed legislation to reinstate it will not take effect until 31 December this year. It is flawed because it attempts to preserve many of the racist and discriminatory aspects of the intervention.
The current government has shown a single-minded determination to continue with most of the objectionable aspects of the intervention, seeking to characterise them as "special measures" under the reintroduced Act.
The 2010 legislation preserving income management continues to provide for an arbitrary subjection of all affected people within particular geographical areas to income management. Although this purports to be a non-discriminatory measure, in practice it continues to discriminate against Aboriginal people, who form the bulk of the welfare recipients in the affected areas.
The remainder of the 2010 legislation covering alcohol and pornography restrictions, compulsory five year leases, licensing of community stores, extended powers to the Australian Crime Commission and the like are sought to be justified as special measures. These do not qualify as special measures as a matter of law.
A special measure as defined under the United Nations Committee on the Elimination of Racial Discrimination (CERD) has also been defined by Australian courts as containing four elements:
- it must confer a benefit on some or all members of a class;
the membership of the class must be based on race, colour, descent, or national or ethnic origin;
it must be for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and freedoms; and
the circumstances must provide protection to the beneficiaries which is necessary in order that they may enjoy and
exercise human rights and freedoms equally with others. Furthermore a special measure must not be continued after the objectives for which it was taken have been achieved.
The United Nations Committee on the Elimination of Racial Discrimination and the Declaration of the Rights of Indigenous people now require that consultation and consent must occur before a special measure can be introduced and it is probable that this is also a requirement of Australian law. None of the present government's measures satisfy this requirement. Therefore the legislation appears to be inconsistent with the Racial Discrimination Act.
The government claims it has consulted the Aboriginal people about these measures but this claim does not stand up to examination. The only hard evidence of the government's so called consultation makes it clear that the so-called consultation was not consultation at all.
Further, a June 2010 survey of thirty-five Aboriginal elders from twenty-four communities revealed that 97 per cent believe they have not consented to the current intervention measures in their communities. Eighty-eight per cent of them did not believe they had been genuinely consulted. Two of these elders presented a report to the UN Committee on the Elimination of Racial Discrimination at Geneva in August 2010.
That committee has since reported in highly critical terms of Australia in relation to this issue. Despite this, the government is currently engaged in policies towards traditional owners of Aboriginal land that are little short of blackmail, requiring leases of 40 years and upwards over Aboriginal land as the price of discharging what should be its own obligation to provide the inhabitants with decent housing.
This is unconscionable behaviour on the part of government; it makes me feel ashamed to be an Australian. We should no longer tolerate this conduct by our government and we must act to create a new era in which we take pride in our Indigenous people and their achievements.
What needs to be done as a matter of urgency is:
withdraw the present flawed legislation purporting to reinstate the Racial Discrimination Act and reintroduce it in an unqualified form;
bring the intervention to an end;
- cease forcing traditional Aboriginal owners into executing lengthy and unconscionable leases and, with their consent,
cancel existing leases that were forced on them in this way;
provide proper housing and education services without tying them to land tenure;
return control of Aboriginal lands to Aboriginal people;
restore ATSIC or an equivalent body to take Aboriginal and Torres Strait Islander people into partnership as part of this nation and give them proper representation;
provide proper health and education services to all Australians regardless of race or location;
end the mistreatment of Aboriginal children and reduce family violence and alcoholism and enlist the Aboriginal people to help achieve these ends;
amend the constitution in a meaningful way to recognise the rights of Aboriginal and Torres Strait Islander people;
introduce human rights legislation to protect the rights of all Australians, including Aboriginal and Torres Strait Islander people.
How can we achieve these results?
We must inform ourselves and others of the real situation in the Northern Territory. We must tell our elected representatives this behaviour will no longer be tolerated. Organisations like Reconciliation Australia deserve support. Groups like "Concerned Australians" and "Stop the Intervention Now" are working to bring these abuses to public attention and also deserve support.
Above all we must not sit passively and let our fellow Australians continue to be treated as they have been since white settlement in this country.
The Honourable Alastair Nicholson AO, RFD, QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.