It is official - 'Australia in breach of racial obligations'

SEE: Australian Human Rights Report 2009

"...Of particular concern is the Northern Territory Emergency Response, which by the Government's own account is an extraordinary measure, especially in its income management regime, imposition of compulsory leases, and community-wide bans on alcohol consumption and pornography. These measures overtly discriminate against aboriginal peoples, infringe their right of self-determination and stigmatize already stigmatized communities ..." by the UN Special Rapporteur James Anaya in 2009 24 February 2010

United Nations will hear that Australia has breached its international anti-race discrimination obligations in the September 2010 sitting.

George Newhouse
George Newhouse, Lawyer
representing NT Indigenous peoples affected by the intervention

Australia has been found to have breached its international anti-race discrimination obligations by continuing for almost three years it's intervention policies with indigenous communities of the Northern Territory. That's the formal finding of the United Nations special rapporteur on indigenous people, U-S law professor James Anaya, who visited Australia last year and has held extensive consultations with affected indigenous communities, as well as Australian governments. Radio Australia has received an advance version of an annex to the report dealing with the intervention.

Presenter: Linda Mottram
Speaker: Professor James Anaya, UN special rapporteur on indigenous people
AUDIO: Listen Windows Media

Intervention will cop international criticism: lawyer

Eric Tlozek 25th February, 2010

Australia will face strong criticism of the Northern Territory intervention when it appears before the UN Human Rights Commission in September, a human rights lawyer says.

The UN Special Rapporteur James Anaya found elements of the Northern Territory Emergency Response discriminated against Aboriginal people and breached Australia's international obligations.

The Federal Government wants to reinstate the suspended Racial Discrimination Act and then widen other measures like welfare quarantining to the general population.

But human rights lawyer George Newhouse says the UN's commission is unlikely to endorse the changes.

"For a number of reasons the Government's laws are set to fail the test of being special measures under the Racial Discrimination Act," he said.

"And if they keep going down this path, the laws will be challenged and the Government will be criticised internationally."

UN envoy demands changes to 'racist' intervention

Yuko Narushima Sydney Morning Herald February 25, 2010

James Anaya
UN special rapporteur on indigenous peoples

The government must purge the Northern Territory intervention of racist measures that stigmatise indigenous people, a United Nations representative says.

The UN special rapporteur on indigenous peoples, James Anaya, blasted Australia for breaching its international human rights obligations by imposing welfare restrictions and alcohol and pornography bans that targeted only Aboriginal communities.

''These measures involve racial discrimination,'' Professor Anaya said in a report handed to government. ''The differential treatment of indigenous peoples in the Northern Territory involves impairment of the enjoyment of various human rights.''

Professor Anaya visited communities in August last year. The Indigenous Affairs Minister, Jenny Macklin, has since announced plans to extend welfare quarantining and other restrictions to disadvantaged communities across the country.

Professor Anaya said government proof that alcohol and pornography bans were working was ''ambiguous at best''.

''I specifically asked for evidence showing whether or not the bans had helped,'' he said. ''The only evidence I've seen is that alcohol consumption levels, and associated problems, have gone up.''

Income quarantining confines 50 per cent of welfare to essentials such as food, clothing and rent. The government says applying it to more people and adding an avenue for them to apply to be excused makes the intervention comply with race discrimination laws suspended in 2007 for its introduction.

The opposition has labelled the changes a dilution. A senior lawyer at the Human Rights Law Resource Centre, Ben Schokman, said they were ''farcical'' and only partially restored the Racial Discrimination Act.

Professor Anaya also criticised compulsory land takeovers proceeded without consent, consultation or compensation, and the bright green BasicsCard indigenous people had to produce to use money in shops was humiliating, he said.

UN questions Labor's intervention plans

By Julian Drape AAP February 24, 2010

THE United Nations has questioned whether the federal government's proposed reforms to the Northern Territory intervention will ensure Australia meets its international human rights obligations.

Visiting Australia last August, UN special rapporteur on indigenous rights James Anaya labelled the intervention "overtly discriminatory".

Now, in a report to the UN's Human Rights Council, Prof Anaya says it's "open to question" whether Labor's proposed changes will comply with the UN Declaration on the Rights of Indigenous Peoples.

The former coalition government suspended Australia's Racial Discrimination Act (RDA) in order to roll out the more controversial aspects of the intervention, including income management, alcohol and pornography bans and compulsory leases

Labor has since introduced legislation to reinstate the RDA while maintaining many of the intervention measures. The draft laws do this in two ways.

First, by quarantining the welfare payments of all "vulnerable" people in the territory regardless of race. And second, by making the bans and compulsory leases more flexible and labelling them "special measures" for the benefit of indigenous people.

But Prof Anaya says any legislation that targets indigenous people "must be narrowly tailored, proportional and strictly necessary to achieve the legitimate objectives being pursued".

"Additionally, such limitations on rights should exist only on the basis of the free, prior and informed consent of the indigenous peoples concerned," he writes in his report released today.

The government insists it has obtained consent for its proposed changes by consulting extensively with affected communities.

But Prof Anaya notes there's been "significant criticisms" of that process.

Indeed, earlier this month the Australian Institute of Health and Welfare told a Senate estimates hearing it refused to collect data for one government study on the effectiveness of income management for ethical reasons.

"Thus, open to question is the extent to which the government's proposed (intervention) reforms can indeed be said to count on broad support among the affected indigenous people," the special rapporteur writes.

Prof Anaya said he welcomed Labor's efforts to reshape the intervention but greater engagement with Aboriginal people was needed.

"It's very rare that governmental measures or legislation that discriminates on the basis of race can be deemed consistent with international human rights standards," he said from the United States.

"They (Labor) need to get to the point where they can say that what they're proposing is based on a broad level of support by the affected indigenous communities."

Prof Anaya will release a more extensive analysis of the issues facing indigenous Australians in the next few weeks, before presenting it to the Human Rights Council in September. It will include the intervention observations.

The Rudd government's reform package is currently being debated in federal parliament.

The opposition has vowed to oppose the legislation, claiming it waters down income management for indigenous communities.

Some of the other articles currently circulating the globe

Australia: Sydney Morning Herald February 25, 2010
United Kingdom: 24 Feb 2010
Unites States of America: February 23, 2010
Netherlands: 24 Feb 2010

In retrospect

NT intervention: Aboriginal Australians take their case to the UN

George Newhouse 27 October 2008

Now that the federal government has rejected the findings of its own review board, Indigenous Australians like Barbara Shaw find themselves with no other recourse than to complain to the United Nations Committee on the Elimination of Racial Discrimination (“CERD”).

For three weeks between mid-February to March 2009, CERD will meet in Geneva. The committee, which was established by the United Nations to monitor the implementation of the Convention on the Elimination of All Forms of Racial Discrimination (the “Convention”), to which Australia is a signatory, is scheduled to discuss state reports from Bulgaria, Congo, Croatia, Finland, Montenegro, Pakistan, Turkey, Tunisia and Suriname.

But it is the conduct of the Australian Government that is likely to draw the attention of the United Nations.

A group of Aboriginal people from the Northern Territory recently formed the Prescribed Area Peoples Alliance (PAPA) with a plan to complain to CERD about the racially discriminatory suffering caused by the Howard government’s Northern Territory Emergency Response, commonly known as the intervention.

CERD has the power to urgently respond to problems which require “immediate attention to prevent or limit the scale or number of serious violations of the Convention” and Barbara Shaw of PAPA has every intention of placing the world’s spotlight on the Australian Government’s policies in prescribed areas in the Northern Territory.

Former Federal Court Judge, Ron Merkel QC and I have been instructed by Barbara Shaw to prepare a complaint to CERD. But Barbara is not afraid to approach international forums herself, having already spoken out against the intervention at the 7th United Nations Permanent Forum on Indigenous Issues at the United Nations in NY in April 2008.

Barbara Shaw knows that Kevin Rudd is a former diplomat who understands the damage to Australia’s standing internationally if our nation were to join the ranks of Ethiopia, Belize, Chile, Nicaragua, Philippines, Brazil and Peru which are currently subject to the CERD’s Early-Warning Measures and Urgent Procedures.

The intervention contains at least four potential breaches that could be made the subject of the complaint; the compulsory quarantining of income, the five-year lease regime and its incidents; Bail and Sentencing provisions excluding cultural factors; and the Australian Crime Commission’s extensive powers in relation to Aboriginal children. Of course the suspension of the Racial Discrimination Act in respect of Aboriginal Australians is of its own right an appalling breach of our International obligations.

The Government has acknowledged that the impact of the intervention is racially discriminatory by suspending the operation of the Racial Discrimination Act, but argues that these discriminatory measures are “Special Measures” which are permitted under the Convention.

The direct and indirect discrimination against Aboriginal people under the intervention cannot be characterized as a ‘special measure’. The actions are so broad that they are not connected to the intended outcome, which is ostensibly the safety of women and children. In addition, the measures do not meet the standards set by the High Court (Gerhardy v Brown), let alone standards upheld by international jurisprudence.

There has been very little case law on what constitutes ‘special measures’. The primary decision is that of Gerhardy v Brown.

Justice Brennan in Gerhardy v Brown identified four indicia of a special measure as follows:

A special measure confers a benefit on some or all members of a class;
Membership of that class is based on race, colour, descent, or national or ethnic origin;
The special measure is 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 fundamental freedoms; and;
The protection given by the special measure is necessary in order that they may enjoy and exercise equally with others, human rights and fundamental freedoms.
A fifth criterion is that the measure must not lead to the maintenance of separate rights for different racial groups nor “be continued after the objectives for which [it was] taken are achieved”. The convention also requires consultation with the affected parties before a special measure is implemented, which was not the case in circumstances of the intervention.

Despite the government’s rhetoric, none of the identified breaches could be characterized as a special measure under the High Court’s definition.

Unless you live and shop in the Northern Territory, you’re unlikely to have any idea about the intervention’s impact on Indigenous Australians.

The imposition of income management provisions is widely regarded as an insult to Aboriginal people in the Territory. The feeling of being stigmatised and restricted on the basis of race is having a deeply negative psychological impact.

The system is creating segregated service delivery, leading to deep feelings of shame and an increased experience of racism in daily life. For example, in some supermarkets, there are separate Aboriginal only queues for people using the “basics card”.

Far from improving access to ‘essential items’ for families, income management has created extensive layers of bureaucracy for Aboriginal people to negotiate before they are able to access their Centrelink entitlements.

This has made dealing with all the demands on families such as travel, health care, food, rent etc much harder.

The Australian Government has recently responded to a review of the intervention and announced that measures will be introduced that will allow the suspension of the Australian Racial Discrimination Act to be lifted and certain measures are to be made compliant with the Act.

Whilst this is to be encouraged there is no guarantee that these actions will satisfy Australia’s treaty requirements under the Convention. In fact, given the practical problems of having the legislation passed in the Senate, it is most unlikely that the legislation could be reformed in a manner that satisfies both the requirements of the convention and the political exigencies of conservative Senators.

It is clear from the impacts being felt by those living in Prescribed Areas, and from the complaints made to the NTER Review Board, that the intervention is failing Aboriginal People.

As a result, it is not surprising that Aboriginal Australians who have been denied justice in Australia will now embark upon a complaint to the United Nations in order to achieve change.

*George Newhouse is a human rights lawyer with Surry Partners. He has represented Vivian Alvarez and Cornelia Rau in their cases of wrongful deportation and wrongful detention by the Commonwealth.