Thalia Anthony on Indigenous Legal Rights

This statement was released today, as part of the presiding UN Permanent Forum on Indigenous Issues. It is very timely given recent Government policy developments in the Northern Territory with regard to outstations and Tangentyere Council. It stresses the obligation of the Australian Government under international law to negotiate with Indigenous peoples and traces the recent UN decisions that raised grave concern over Australia's record in relation to Indigenous peoples.

Joint Statement by the Indigenous Peoples Organisations of Australia attending the eighth session of the Permanent Forum on Indigenous Issues, New York, 18 to 29 May 2009

On 24 May 2009 the Minister for Indigenous Affairs announced the Australian Government is taking steps towards compulsory acquisition of the Alice Springs town camps ‘to give children in the camps a better chance at a safe, healthy and happy life’. The Minister described the conditions in the camps as appalling, referring to acute overcrowding, sub-standard housing, alcohol abuse, despair, hopelessness and horrific crimes. The Minister announced intentions to implement a comprehensive plan to transform the town camps and provide intensive support services.

We the Indigenous Peoples Organisations of Australia attending the eighth session of the United Nations Permanent Forum on Indigenous Issues decide as follows:

• We strongly oppose the proposal by the Government of Australia to compulsory acquire leases over Aboriginal and Torres Strait Islander lands or territories without their free, prior and informed consent.

• We call upon the Government of Australia to comply with its international obligations to respect the rights of the Indigenous Peoples of Australia by ensuring that the representatives of the Aboriginal people in the region of Alice Springs are able to make an informed decision regarding the provision of adequate housing and services for their populations.

• Specifically, we urge the Australian Government to re-open negotiations with Tangentyere Council, in concert with other relevant representative Aboriginal organizations, and facilitated by the Australian Human Rights Commission, with a view to concluding as soon as possible an agreement for urgent funding for suitable housing to meet the needs of the Aboriginal people of the region.

• We ask the Australian Government to withdraw their decision to compulsory acquire the lands held by the Tangentyere Council.

In regards to the international obligations of the Australian Government we note the following paragraphs regarding the rights of Indigenous Peoples and relevant recommendations by the human rights mechanisms of the United Nations and international human rights treaty bodies.

• The Declaration on the Rights of Indigenous Peoples was adopted two years ago by an overwhelming vote of the UN General Assembly. Australia was one of only four governments to vote against the adoption of this universal Declaration but on 3 April 2009 the Government announced its support for the Declaration.

• Article 23, UN Declaration on the Rights of Indigenous Peoples states, ‘Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.’

• In May 2007, following a visit to Australia during 31 July to 15 August 2006, the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, recommended to the United Nations in Paras 98 and 135 of his report that Aboriginal people should be given control to the greatest extent possible of our affairs and expressed his particular concern that removal of Aboriginal people as decision makers over the use and access of the land in the Northern Territory would undermine the right of self-determination. He advised that such action ‘may call into question Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights, including its provisions on self-determination’.

• Para 133, Report on Mission to Australia, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, UN Document A/HRC/4/18/Add.2, 11 May 2007: ‘Australian governments must urgently address the humanitarian tragedy of the lack of housing and basic services for the indigenous peoples of Australia, living on indigenous lands and elsewhere. To this end, the Special Rapporteur encourages relevant government staff to visit and reside in indigenous communities, including town camps, and rural and remote communities, in order to better comprehend the reality and the challenges faced by the populations and communities in these locations.’

• On 13 March 2009, the Committee on the Elimination of Racial Discrimination (CERD) wrote to the Australian Government expressing its concern that the Racial Discrimination Act was suspended in the Northern Territory and calling for a report to the Committee by 31 July 2009 on the progress made in redesigning its (the Government’s) approach in the Northern Territory in consultation with the Aboriginal communities. ‘… In order to continue a constructive dialogue with your Government, the Committee requests the State party to submit further details and information on the following issues no later than 31 July 2009 progress on the drafting of the redesigned measures, in direct consultation with the communities and individuals affected by the NTER, bearing in mind their proposed introduction to the Parliament in September 2009 [and] progress on the lifting of the suspension of the Racial Discrimination Act. The Committee welcomes the government's commitment to building a new relationship with Indigenous Australians based on mutual respect, mutual resolve and responsibility.’

• On 2 April 2009, the Committee on Human Rights released its findings on Australia’s obligations under the International Covenant on Civil and Political Rights. The Committee expressed its concern with the Northern Territory Emergency Response measures and particular concern about 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 State party should increase its efforts for an effective consultation with indigenous peoples in decision-making in all areas having an impact on their rights … The State party should redesign NTER measures in direct consultation with the indigenous peoples concerned, in order to ensure that they are consistent with the Racial Discrimination Act 1995 and the Covenant.’ (Concluding observations on Australia, Human Rights Committee, UN Document CCPR/C/AUS/CO/5, 2 April 2009)

• On 22 May 2009, the Committee on Economic, Social and Cultural Rights, in examining Australia’s periodic report under the International Covenant on Economic, Social and Cultural Rights, expressed its concern that some of the Northern Territory Intervention measures are inconsistent with the Covenant rights, in particular with the principle of non-discrimination, and have a negative impact on the realisation of the rights of indigenous peoples and noted ‘with regret’ that measures were adopted without sufficient and adequate consultation with the indigenous peoples concerned. ‘The Committee recommends that the State party take effective measures, in line with the Committee's general comment No.4 (1991) on the right to adequate housing (art. 11, para. 1, of the Covenant), to address homelessness in its territory. The State party should implement the recommendations of the Special Rapporteur on the Right to Adequate Housing contained in the report of his mission to Australia… The Committee calls on the State party to take immediate steps to improve the health situation of indigenous people, in particular women and children, including by implementing a human rights framework that ensures access to the social determinants of health such as housing, safe drinking water, electricity and effective sanitation systems.’ (Concluding observations on Australia, Committee on Economic, Social and Cultural Rights, UN Document E/C.12/AUS/CO/4, 22 May 2009)

We also appreciate that the Australian Government has presented to this session of the Permanent Forum on Indigenous Issues a joint statement with our delegations expressing a desire that Australia meet its human rights obligations, and we recognise that a critical factor in achieving this goal is the degree to which Aboriginal and Torres Strait Islander peoples can set the agenda, and affect policy and service delivery.

Our delegations are encouraged by the Australian Government’s decision to support the UN Declaration on the Rights of Indigenous Peoples.

Therefore, in conclusion to this statement, we support the view that the Government of Australia should establish and implement in conjunction with the Aboriginal and Torres Strait Islander peoples a fair, independent, impartial, open and transparent process to adjudicate the rights of the Aboriginal people in relation to our lands. This provision is stipulated in Article 27 of the Declaration on the Rights of Indigenous Peoples.

We strongly recommend that the Australian Government provide, as a matter of priority and urgency, extensive human rights training on how human rights apply to Aboriginal and Torres Strait Islander peoples in the areas of non-discrimination and civil, political, economic, social and cultural rights. The training should target all sectors of society, but particularly it should target State officials having a direct role in engagement of the Aboriginal and Torres Strait Islander peoples and the judiciary.

This was published on 21 May 2009 in The Age. Please note that the by-line should not indicate that I am an Indigenous person but that my research is in Indigenous legal issues.
http://www.theage.com.au/opinion/outstations-policy-a-fresh-attempt-at-assimilation-20090520-bfnt.html?page=-1

Evidence shows that indigenous wellbeing declines in townships.

On the eve of the Northern Territory Government announcing plans to, in effect, close down indigenous outstations, a report was released that showed indigenous people in Arnhem Land outstations and homelands had the most sustainable lives and communities.

The Healthy Country, Healthy People report shows the physical, emotional, social and cultural health benefits experienced by these people. It is therefore incongruous that while the Federal Government espouses a "closing the gap" agenda, the Northern Territory Government is undermining these health outcomes.

The Arnhem Land study finds that Aboriginal people participating in customary and contemporary land and sea management practices, particularly those living in traditional homelands, are much healthier than those in townships. The report's authors note that "pressure to centralise remote indigenous populations and services into townships has increased, despite evidence suggesting this would lead to worse health outcomes". Townships promote inactivity, malnutrition, social dysfunction and other social disadvantages.

The researchers from Charles Darwin University reveal that health outcomes associated with living on and managing traditional country include major reductions in risk of cardiovascular disease, diabetes and other chronic diseases. These diseases not only severely disrupt indigenous society, they also require large public expenditure for treatment.

Participants in natural and cultural resource management practices report a more nutritious diet and a greater degree of physical activity. Cultural management also provides potential markets for environmental investment.

Rather than foster and support these homeland communities and outstations, both the federal and Northern Territory governments have sought to undermine their existence. Under federal policy, there is a ban on expenditure for housing on Aboriginal outstations and homelands, apart from some repairs and maintenance. This policy was entrenched in the memorandum of understanding between the Australian and Northern Territory governments on indigenous housing, accommodation and related services, which was signed in the dying days of the Howard government in September 2007.

The Northern Territory Government's announcement this week furthers this understanding. The plan to consolidate services into 20 large communities will threaten up to 580 remote outstations. This will force indigenous people into townships, which will undermine their traditional, healthier lives and provoke social dysfunction in the townships.

The attempts to oust outstations also run against the Australian Government's recent endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, which supports self-determination.

Outstations resonate with aspirations of indigenous self-determination. According to Gregory Marks, who has been an adviser on Northern Territory policy for the past four decades, the outstations emerged in the 1970s in response to the assimilation policy and changes in pastoralism that pushed indigenous people into settlements and onto urban fringes.

Many of the outstations are a reaction to the confinement that settlement life imposed on indigenous people. Outstations allow indigenous people to nurture their economies and culture.

The only basis for the outstation policy is ideological: to push indigenous people into the mainstream and engender assimilation. It operates hand in hand with the Northern Territory intervention that focuses funding priorities on a limited number of prescribed communities.

The Northern Territory and federal governments are reimposing colonial forms of containment that prevent indigenous survival beyond government-regulated boundaries.

The policy of undermining outstations is a threat to indigenous wellbeing and is against evidence-based research that recommends the preservation of outstations.

Marks notes that the ideological campaign against outstations has provided an unproductive distraction from constructive policy development. Government investment needs to be measured in terms of health, cultural and natural resource management outcomes. The outstation policy exposes the "closing the gap" policy as mere rhetoric, with dangerous political prejudices.

This was published on the 12 May 2009 in the Sydney Morning Herald: http://www.smh.com.au/opinion/slurring-laws-will-criminalise-aborigines-not-stop-crime-20090511-b0ir.html?page=-1

New laws giving police the power to move on people who are slurring their words will cement a long tradition of criminalising Aboriginal people for public order offences. The recently announced powers will allow NSW police to direct those who are noticeably drunk away from a public place. Failure to comply can lead to arrest for a criminal offence.

History shows indigenous people are most likely to be caught by this type of legislation and incarcerated for the mere appearance of intoxication.

The move-on laws have the peculiar flavour of targeting people who are not committing a crime or even suspected of committing a crime. They are activated where people are deemed drunk.

The new law, which amends the Law Enforcement (Powers and Responsibilities) Act, lowers the threshold from "seriously" drunk to "noticeably" drunk. This significantly broadens the police move-on power and is likely to apply to a wide section of society.

If a person directed to move on returns to the area, he or she will be charged with a criminal offence. A study by the Aboriginal Legal Service of Western Australia found more than 75 per cent of people who were arrested for breaching their move-on notices did so simply by walking, standing or sleeping in the area prescribed by the move-on notice.
In one case, a direction that operated for 24 hours forbade young boys from going to school the next day. They were later arrested for going to a shopping mall accompanied by their mother to get their hair cut.

Move-on powers disproportionately affect indigenous people and communities. According to an ombudsman's review of the move-on powers, there was a very high incidence of police issuing such directions in parts of NSW with large Aboriginal populations.

Almost a quarter of all move-on directions were issued to indigenous people, particularly the young, far in excess of their proportion of the population. This trend goes hand in hand with the wide criminalisation of indigenous people for public order offences.

Western Australia has the most draconian move-on laws, with penalties of up to $12,000 or 12 months' imprisonment for failure to comply.

The state's Aboriginal Legal Service found police used the WA laws as a mechanism for the social control of Aboriginal people, limiting their access to welfare, health and legal services. The directions are difficult to understand and their targets are unsure of how far and for how long the directions apply.

In NSW the new laws will take another step towards recriminalising intoxication. In 1991 the royal commission into Aboriginal deaths in custody recommended that public intoxication be decriminalised because of the huge impact it had on the detention of Aboriginal people and consequent deaths in custody. This ushered in reforms to decriminalise intoxication in the 1990s and a shift in the approach to one of protective or therapeutic incarceration for drunks, including sobering-up shelters (often police cells).

The discriminatory policing of drunk Aboriginal people is blatant. Indigenous people are 42 times more likely than other Australians to be in custody for public drunkenness. In 2005 the Australian Institute of Criminology identified public drunkenness as a key issue relating to police custody. In October 2002 it found that of those detained by police there were 17 times more Aborigines than all other groups.

Through its move-on slurring powers, the NSW Government has provided another back-door means for incarcerating drunk Aboriginal people. The police will have wide discretion and will set the bar for public drunkenness as low as they deem appropriate. It is another sad attempt to criminalise indigenous behaviour rather than criminal activity.