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Kevin Rudd addressing the UN General Assembly before his government endorsed the UN Declaration on the Rights of Indigenous Peoples. The ALP's nation-wide human rights consultations does not mention the declaration as one that the government should promot |
THE POINTED VIEW: More wrongs than rights
ISSUE 188 - 16 Oct 2009
ISSUE 188, October 15, 2009: There was a lot of hope in the ALP's national human rights consultations, but once again the losers are Indigenous people, writes PROF LARISSA BEHRENDT*.
After a nation-wide consultation process, the National Human Rights Consultation Committee has produced its report. It recommends that there be a Charter of Rights for Australia.
But what does it say on the rights of Indigenous people?
Given the historical vulnerability of Aboriginal rights - dispossession, the Stolen Generations, stolen wages, lack of protection of cultural heritage and language, overrepresentation in the criminal justice system - you would think that the protection of these rights would get special attention.
They do. But not in a way that will provide any comfort for Indigenous people concerned about rights protection.
Indigenous rights attracted two specific recommendations.
One is that a "statement of impact" be provided by the Federal Government when it intends to suspend the Racial Discrimination Act (RDA) or to implement a special measure.
The recommendation is that the statement "should explain the object, purpose and proportionality of the legislation and detail the processes of consultation and the attempts made to obtain informed consent from those concerned".
This wouldn't stop the Federal Government from suspending the protection against racial discrimination.
It would simply mean that the government would have to say something like, "we are suspending the Racial Discrimination Act because we care about women and children. I saw some women at Alice Springs and they said they liked the intervention".
That would be that. There would be nothing we could do to challenge the statement if it fell short, was misleading or was untruthful.
Stopping racial discrimination needs something more.
This recommendation would not stop further racially discriminatory legislation being passed depriving Aboriginal and Torres Strait Islander people of their rights to equality.
Protection from racial discrimination requires something more.
The only time the Racial Discrimination Act has been suspended has been so that it does not extend to protect the rights of Indigenous people - as part of the Northern Territory intervention, to allow the Hindmarsh Island bridge to go ahead and as part of the Wik amendments to the Native Title Act.
It requires entrenchment.
So it is disappointing there is no consideration of constitutional protection of the right to be free from racial discrimination.
It is even more disturbing that freedom from racial discrimination is not one of the rights specifically listed for inclusion in the recommended national charter.
The other recommendation related to the development of a "framework for self-determination, outlining consultation protocols, roles and responsibilities (so that communities have meaningful control over their affairs) and strategies for increasing Indigenous Australians' participation in the institutions of democratic government."
This is a framework with no legal underpinnings. There is no recommendation within the report to give this any teeth. There is no suggestion about monitoring or implementation. And there would be no consequences if such a framework were overlooked.
This is an attempt to reference self-determination in the report and it is a pretty poor one.
The Victorian Charter process recommended that the right to self-determination be considered for inclusion and that process is currently underway. The National Human Rights Consultation Committee did not recommend any inclusion.
And there were many other ways in which the report fell short of Aboriginal and Torres Strait Islander inclusion in other human rights documents. For example:
There is no suggestion that Aboriginal and Torres Strait Islander people be included in the preamble to a Human Rights Act but they are included in the preambles of both the ACT and Victorian legislation.
Both the ACT and Victorian legislation recommended reviews that would look specifically at the impact on Indigenous people and their rights. In Victoria, that included looking at the right to self-determination.
The ACT committee recommended the inclusion of the right to self-determination but it was not included in the legislation that went through parliament.
The Victorian charter included protection of cultural rights. There is no mention of cultural rights within any of the recommendations of the national charter.
A further disappointment is the omission of the UN Declaration on the Rights of Indigenous Peoples in the list of the human rights instruments that it recommends the government protect and promote (at recommendation 17).
The committee may have taken the view that the Declaration on the Rights of Indigenous Peoples was not a Convention so therefore did not have the same weight but I think this is a cop out.
There was nothing stopping them from recommending that the federal government take the rights under the Declaration seriously or from recommending that they take some action in integrating those rights into Australian law.
The omission of a recommendation about the implementation of the Declaration on the Rights of Indigenous People is a serious flaw in work of the committee.
How could a committee that was focused on improving human rights protections in Australia do so poorly on the implementation of the specific rights of the most vulnerable people within the community, the ones who have endured the most serious and systematic human rights abuses? The committee did have Indigenous representation.
Tammy Williams, an Aboriginal lawyer, was a member of the National Indigenous Council (NIC) that supported the Northern Territory intervention and also endorsed the policy of compulsorily acquiring Aboriginal land.
But another answer is also found within the report in the chapter dealing specifically with Indigenous rights.
When discussion the recognition of Indigenous-specific rights in legal instruments, the committee noted that while there was a view from Indigenous people and some non-Indigenous people about the need to better protect Indigenous rights, "the Consultation terms of reference require the Committee to consider, among other things, the level of community support for each option".
The report notes that: "Indigenous Australians did not put forward a significant number of recommendations about which specific Indigenous rights should be recognised and within what type of legal system."
So it is our fault that we did not respond to the consultation.
Maybe the lack of information should have provoked the Committee to think about (a) why Aboriginal people were not responsive to the consultation and (b) go out and actively seek some answers.
Maybe the Committee would realise that when people are worried about overcrowding in their homes, sewerage is running through their town and their BasicsCard isn't working that they do not have time to put in submissions to just another review.
And with the lowest levels of education in Australia, perhaps the dialogue needs to understand and communicate better.
Also, why weren't human rights groups more active in putting forward Indigenous rights protections as part of their submissions?
The Committee goes on to say that: "participants in focus groups were cautious, if not resentful, about Indigenous specific-rights, offering only minimal support for their recognition."
So now we only get our human rights protected if it is popular? We are really stuffed then.
The vulnerability of Indigenous human rights has been that it is so dependent upon the benevolence of government.
We are already held hostage to popular opinion about whether Indigenous rights are vote-winners or not.
And the answer is always that we are not. There are no votes in blacks. In fact, there are votes in beating up on blacks.
Look at Howard and the Wik election.
The report concludes:
In view of the lack of support from the broader Australian community for different rights for different people, and the limited response from the Indigenous community at this point, the Committee is unable to recommend that specific Indigenous rights be recognised in a Human Rights Act, treaty, or other legal instrument."
So not only do we not get included in the Human Rights Act, the Committee took the issue of a treaty, of constitutional reform and any other legal protection of rights off the table. Thanks very much.
I have always said that a Bill of Rights would have benefits for Aboriginal and Torres Strait Islander people even if our rights weren't specifically mentioned.
The rights of Aboriginal people like due process before the law and equality before the law have always been more vulnerable.
So even if the recommendations are implemented as they stand, there will arguably been some positive benefits for the improvement of the protection of the rights of Aboriginal and Torres Strait Islander people.
At least when it comes to rights like freedom of movement, due process before the law and equality before the law.
But the framework proposed by the National Human Rights Consultation Committee completely misses the opportunity to better protect Indigenous rights and falls far short of the levels of protections in the human rights legislation in both the ACT and Victoria.
It leaves us with crumbs.
The Northern Territory intervention has been amongst the greatest human rights violations in Australia.
It is occurring right now under the watch of the human rights organisations and advocates that have put so much energy and effort into this human rights consultation.
This would have been an opportune time to better address the protection of Indigenous rights and it is a missed opportunity.
Aboriginal and Torres Strait Islander people miss out again.
And with the report of the National Human Rights Consultation Committee providing the way forward for the Rudd government on human rights protection, Indigenous rights have taken another step back.
larissa@nit.com.au
* Larissa Behrendt is a Professor of Law at the University of Technology Sydney. She is an award-winning author and a fortnightly columnist with NIT. She is this year's NAIDOC Person of the Year.
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