Thalia Anthony on Indigenous Legal Rights

The United Nations Committee for the Elimination of Racial Discrimination (CERD) has noted with concern the suspension of the Racial Discrimination Act 1975 (Cth) to enact the Northern Territory Emergency Response (Intervention) laws.

The Committee oversees the International Convention on the Elimination of All Forms of Racial Discrimination, which Australia ratified in 1975. Article 2 of the Convention states:
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

The Committee referred especially to Article 2(2) that special measures “shall in no case entail … unequal or separate rights for different racial groups." This signals to the government that its efforts to convey the Intervention as a special measure are actually a breach of international law.

The Committee has asked the Australian Government to report in four months time on the progress it has made to reinstate the Racial Discrimination Act and build a new relationship with Aboriginal Australia.

Barrister George Newhouse submitted the complaint on behalf of Indigenous peoples in the Northern Territory. My colleagues at Jumbunna Indigenous House of Learning, the University of Technology Sydney, undertook the research for the brief. I was happy to help them in a small way.

We'll now await the government response. Hopefully this report will expedite the reinstatement of the Racial Discrimination Act.

In mid 2008, shortly after the Federal Apology to the Stolen Generations, there was a Senate Inquiry into a Stolen Generation Compensation Bill. Despite overwhelming evidence in favour of the Bill, the majority report of the Senate Legal and Constitutional Committee did not support the Bill because of the government’s priority in implementing the Closing the Gap strategy.

The Report nonetheless stated that ‘governments are under an obligation to resolve this issue as a matter of priority’ and indicated that the reparations tribunal model proposed by PIAC offered a ‘valuable [framework] for consideration in the development of any reparations scheme’.

The Greens have since moved another Bill for compensation. However, the Federal Labor government continues to express its opposition.

Given that attempts to pass legislation at a Federal level have been unsuccessful to date, a number of state governments (including Queensland, Tasmania and Western Australia) have taken it upon themselves to introduce ‘compensation’ schemes. Although these schemes are limited (with Queensland and Western Australia requiring evidence of actual abuse), they suggest a national concern that some form of redress at a state level is necessary.

In this context, and through widespread consultation with NSW Indigenous groups, there is a strong sense that a NSW compensation scheme may be more viable. There are currently attempts among academics, the Public Interest Advocacy Centre and NSW Parliamentary advisers to establish a transparent and fair legislative process that meets the needs of Indigenous claimants, without incurring the expense and delay of establishing a distinct reparations infrastructure. One avenue that is being entertained is to establish a division of the NSW Victims Compensation Tribunal.

The forward path is to investigate the legal aspects of this scheme and communicate with Indigenous groups on this compensatory model. There is a keen willingness to get this proposal right in light of the weaknesses of the stolen wages scheme in NSW, which lacks legislative authority.

The Northern Territory Intervention continues to shed light on the flaws in our legal system to offer redress to those who experience the harshest discrimination. In the Northern Territory Indigenous people have been placed at the margins of the legal system. This perpetuates a history of legal exclusion. The Intervention legislation excludes the right to administrative review for decisions made in relation to quarantining an Indigenous person’s income. The High Court, through its narrow interpretation of ‘just compensation’, recently closed another legal avenue for Indigenous applicants opposing the leasing of their land. At the same time, the Federal Government has remained steadfast on its decision to suspend the Racial Discrimination Act (Cth) 1975. There are currently appeals to the United Nations Committee on the Elimination of Racial Discrimination. However, the announcement by the Federal government today that it will extend the Intervention for a further three years offers defies these appeals.

On 3 February a Warlpiri delegation (from north-west NT) on the Occasion of the Opening of Parliament 2009 made the following recommendations that seek not only a repeal of the Intervention legislation, but also substantive self-determination:

* The Commonwealth Racial Discrimination Act (1975) and the NT Anti-Discrimination Act should be restored straight away
* Don’t ignore the recommendations of the Report of Peter Yu’s NTER Review Board
* Put the Intervention money now being wasted to good use
* Fund our local organisations to employ more people on full wages
* Re-establish local leadership and decision making power
* Apologise for all the hurt and the lies and insults that have made us look so bad in the eyes of the rest of
Australia
* That Australia adopt the UN Declaration on the Rights of Indigenous Peoples. This declaration includes the right of people “providing education in their own languages”
* Above all give us back our respect and dignity and support us in running our own lives
* Don’t talk down to us and listen.