Thalia Anthony on Indigenous Legal Rights

This was published yesterday on ABC Unleashed http://www.abc.net.au/unleashed/stories/s2544942.htm

The United Nations Declaration on the Rights of Indigenous Peoples, which Australia adopted, may provide an avenue to transcend the paradox in the Labor Government's Indigenous policy.

The Government's policy on Indigenous affairs has traversed two divergent paths of symbolism and pragmatism. On the one hand, the Labor party has recognised wrongs of the past - most notably on 13 February 2008 when Prime Minister Kevin Rudd issued a formal apology to the stolen generations.

The Prime Minister said, "We apologise for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians". In expressing sorrow for "past mistreatment", the government acknowledged the discriminatory nature of that policy.

On the other hand, the Labor Government's Indigenous policy is shrouded in a pragmatism that undermines Indigenous peoples' rights to non-discrimination. This is clear in the Government's extension of the Northern Territory Intervention, which requires the ongoing suspension of the Racial Discrimination Act 1975 (Cth).

Northern Territory Indigenous leader, Irene Fisher, has pointed to the evidence-based rhetoric of the policy: "if you do a quick google search you will find Kevin Rudd is linked with the phrase 'evidence-based' some 21,300 times; and Jenny Macklin some 2,300". Despite this evidence-led Indigenous policy, there is little evidence to point to any positive practical outcomes of the Intervention.

The Government's pragmatism in Indigenous policy has led to a number of United Nations' Committee findings that Australia is in breach of its international obligations.

Last month the United Nations Committee for the Elimination of Racial Discrimination, in response to an urgent complaint by a group of Northern Territory Indigenous people, expressed serious concern that the Australian Government suspended the Racial Discrimination Act to enact the Northern Territory Intervention laws. Then on the exact day that Australia endorsed the Declaration, the United Nations Human Rights Committee reported that Australia had breached its obligations under the International Covenant on Civil and Political Rights. These breaches included a failure to establish a national representative Indigenous body, the failure to compensate the stolen generations and the racially discriminatory nature of the Intervention.

The Australian Government's support for the Declaration on the Rights of Indigenous Peoples could pave a path out of this quagmire of international criticism. The Declaration provides a vision for improving the conditions of Indigenous people in a non-discriminatory way and with respect to their human rights and right to self-determination.

Article 21 of the Declaration recognises that 'Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions'. In other words, the Declaration combines symbolic and pragmatic objectives in a way that is compatible rather than conflicting.

The Minister for Indigenous Affairs, Jenny Macklin, in a speech to Parliament on the Declaration signalled a break from past Indigenous policy. She stated that the adoption of the Declaration seeks to "resettle" the relationship between Indigenous and non-Indigenous Australians. Macklin referred to the fact the Labor Government was overturning Australia's vote against the Declaration in 2007 (under the Howard government) and moving "towards a new future".

But is the Government's support for the Declaration another step in the direction of empty symbolism or will it translate into policy that protects Indigenous peoples' rights?

Cynics argue that it is simply a gesture to win support for an Australian seat on the Security Council. Others suggest that it is meaningless without constitutionally guaranteed rights for Indigenous people. After all, the Declaration is a legally non-binding instrument of international law. Macklin has noted, "While it is non-binding and does not affect existing Australian law, it sets important international principles for nations to aspire to".

Proof of the Declaration's significance will lie in Australia's forthcoming Indigenous policy, particularly in relation to addressing the United Nations Committee concerns.

In her speech to Parliament, Macklin announced that legislation will be introduced to lift the suspension of the Racial Discrimination Act in the Northern Territory. This has been a major issue for the United Nations Committees.

However, the challenge for the Labor Government will be whether to retain the substance of the Intervention, given its inherently discriminatory provisions of welfare quarantining and forcible acquisition of land. The United Nations Committee for the Elimination of Racial Discrimination has cautioned against conceiving this policy as a special measure to get around its racially discriminatory provisions. This suggests that conformity with international human rights obligations requires more than tinkering with the Intervention at the margins.

For the adoption of the Declaration to be meaningful in law the government will need to take seriously the complaints to United Nations Committees and move towards a rights-based Indigenous policy agenda. If it does so, Australia's support for the Declaration could represent a shift in Indigenous policy towards both symbolic recognition of past wrongs and pragmatic future policy that does not replicate historical wrongs.

Macklin quoted in her speech on the Declaration the words of an Indigenous woman: "closing the gap is not just about bricks and mortar, it is about self esteem, pride, acceptance, and a recognition of the humanity of our peoples". The humanity of Indigenous people cannot be upheld as long as the Labor Government's discriminatory policies remain in place.

This piece was published today by ABC: http://www.abc.net.au/news/stories/2009/04/14/2541995.htm http://www.abc.net.au/news/stories/2009/04/14/2541995.htm?site=indigenous&topic=latest

Australia's endorsement of the United Nations Declaration on the Rights of Indigenous People, announced recently, comes in the midst of a number of United Nations Committee criticisms on Australia's record on Indigenous rights.

These criticisms point to Australia's failure to uphold Indigenous people's human rights and rights to equality and non-discrimination. The criticism has been directed primarily towards the Government's policy on the Northern Territory intervention. Despite such criticism, the Government has maintained its stance on the intervention. Is the endorsement of the Declaration, then, simply another act of symbolism or will it pave the way for change?

In March 2009, the United Nations Committee for the Elimination of Racial Discrimination (CERD) expressed serious concern that the Australian Government suspended the Racial Discrimination Act 1975 (Cth) to enact the Northern Territory Emergency Response (intervention) laws. In responding to the urgent complaint against the intervention brought by Indigenous leaders, the committee urged the Australian Government to report on the progress it has made to reinstate the Racial Discrimination Act and build a new relationship with Aboriginal Australia.

Last week, the United Nations Human Rights Committee reported that Australia had breached a number of its obligations under the International Covenant on Civil and Political Rights. It drew attention to the failure to establish a national Indigenous representative body, the insufficient consultation with Indigenous people in decisions affecting their rights, failure to grant reparations to the Stolen Generations and the discriminatory nature of the Northern Territory intervention. On the intervention measures, the committee stated that they were "inconsistent with the State party's obligations under the Covenant". The Committee was "particularly concerned at the negative impact" of the "measures on the enjoyment of the rights of Indigenous peoples and at the fact that they suspend the operation of the Racial Discrimination Act 1975 and were adopted without adequate consultation with the Indigenous peoples".

The Northern Territory intervention and Australia's stance on Indigenous rights will again be tested by a United Nations Committee next month, when a report will be handed down by the Committee on Economic, Social and Cultural Rights on Australia's performance under the International Covenant on Economic, Social and Cultural Rights. A number of legal centres and human rights law centres have already expressed to the committee in its submissions that the intervention violates this Covenant by virtue of its discriminatory nature. These centres claim that the intervention undermines rights to social security (particularly through its mandatory income quarantining for Indigenous people), rights to self-determination and cultural rights (especially through its provisions for compulsory acquisition of Indigenous land) and rights to Indigenous participation in decision-making (as a result of the lack of consultation on the intervention).

In light of its Indigenous scorecard on the international arena, Australia has a lot of answering to and a long way to catch up to meeting its treaty obligations. Nonetheless, Australia endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which "recognises the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world". The Social Justice Commissioner, Tom Calma, described the endorsement as a 'watershed moment' in Australia's relationship with Indigenous people. Australia supported the Declaration after being one of the four states (under the Howard government) that voted against its adoption. The other three states - New Zealand, Canada and the United States - have maintained their position.

Support for this non-legally binding Declaration may be seen as simply another act of symbolism. It may be analogised with the national apology to the Stolen Generations, which did nothing further to address the suffering of those victims. For example, the Australian Government continues to oppose consecutive bills for Stolen Generations' reparations before the federal Senate.

Perhaps preempting the empty symbolism of the gesture, the United Nations Special Rapporteur James Anaya commented after Australia's endorsement: "The main challenge for Member States is to ensure that the Declaration is implemented at national and regional levels, in consultation and cooperation with Indigenous peoples, including through the adoption of appropriate policies and legislation".

If Australia is to incorporate the articles of the United Nations Declaration into Australian law, it requires initially addressing the recent concerns of United Nations committees. Of immediate priority are the concerns relating to the discriminatory nature of the Northern Territory intervention. The intervention is a direct violation of the self-determination and equality provisions of the Declaration. This is evidenced by the ongoing suspension of the Racial Discrimination Act to enforce the intervention. In the longer term, the Australian Government will need to reinstate a peak Indigenous representative body to provide input into Indigenous policy. The Declaration provides the opportunity to pave a new path towards a rights-based Indigenous policy.

The NSW Government announced that it will extend the Stolen Wages Scheme for Indigenous people who were denied their wages under Aboriginal Protection Acts. This Scheme commenced in 2005 to provide full reimbursement of unpaid wages at prevailing rates.

Despite the initial promise that there would be no time limitations on claims so claimants would have sufficient time to have freedom of information requests processed and to develop cases in response to new records surfacing, the NSW Government sought to discontinue the Scheme in May 2009.

However, a report to Cabinet (which the Government refuses to disclose publicly) has led to the extension of the Scheme to June 2010. This will provide applicants with more time to collect evidence. To date, 60 per cent of claims have been knocked back for lacking in evidence, according to Joel Gibson's report in today's Sydney Morning Herald.

The Scheme has been criticised for lacking procedural transparency. The considerations behind awarding payments have not been stated categorically, nor has the procedure where written records are not found. The reasons for not awarding payments are not made public and are not able to be reviewed. The claims are made in closed rooms without external scrutiny.

In order for justice to be provided to Indigenous people deprived of their wages, the Scheme not only requires an extension, but a redesign to ensure transparency and procedural fairness.