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Human rights and the Northern Territory intervention

By Alastair Nicholson - posted Monday, 20 December 2010


The current government has shown a single-minded determination to continue with most of the objectionable aspects of the intervention, seeking to characterise them as "special measures" under the reintroduced Act.

The 2010 legislation preserving income management continues to provide for an arbitrary subjection of all affected people within particular geographical areas to income management. Although this purports to be a non-discriminatory measure, in practice it continues to discriminate against Aboriginal people, who form the bulk of the welfare recipients in the affected areas.

The remainder of the 2010 legislation covering alcohol and pornography restrictions, compulsory five year leases, licensing of community stores, extended powers to the Australian Crime Commission and the like are sought to be justified as special measures. These do not qualify as special measures as a matter of law.

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A special measure as defined under the United Nations Committee on the Elimination of Racial Discrimination (CERD) has also been defined by Australian courts as containing four elements:

  • it must confer a benefit on some or all members of a class;
  • the membership of the class must be based on race, colour, descent, or national or ethnic origin;
  • it must be 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 freedoms; and
  • the circumstances must provide protection to the beneficiaries which is necessary in order that they may enjoy and exercise human rights and freedoms equally with others. Furthermore a special measure must not be continued after the objectives for which it was taken have been achieved.

The United Nations Committee on the Elimination of Racial Discrimination and the Declaration of the Rights of Indigenous people now require that consultation and consent must occur before a special measure can be introduced and it is probable that this is also a requirement of Australian law. None of the present government’s measures satisfy this requirement. Therefore the legislation appears to be inconsistent with the Racial Discrimination Act.

The government claims it has consulted the Aboriginal people about these measures but this claim does not stand up to examination. The only hard evidence of the government’s so called consultation makes it clear that the so-called consultation was not consultation at all.

Further, a June 2010 survey of thirty-five Aboriginal elders from twenty-four communities revealed that 97 per cent believe they have not consented to the current intervention measures in their communities. Eighty-eight per cent of them did not believe they had been genuinely consulted. Two of these elders presented a report to the UN Committee on the Elimination of Racial Discrimination at Geneva in August 2010.

That committee has since reported in highly critical terms of Australia in relation to this issue. Despite this, the government is currently engaged in policies towards traditional owners of Aboriginal land that are little short of blackmail, requiring leases of 40 years and upwards over Aboriginal land as the price of discharging what should be its own obligation to provide the inhabitants with decent housing.

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This is unconscionable behaviour on the part of government; it makes me feel ashamed to be an Australian. We should no longer tolerate this conduct by our government and we must act to create a new era in which we take pride in our Indigenous people and their achievements.

What needs to be done as a matter of urgency is:

  • withdraw the present flawed legislation purporting to reinstate the Racial Discrimination Act and reintroduce it in an unqualified form;
  • bring the intervention to an end;
  • cease forcing traditional Aboriginal owners into executing lengthy and unconscionable leases and, with their consent, cancel existing leases that were forced on them in this way;
  • provide proper housing and education services without tying them to land tenure;
  • return control of Aboriginal lands to Aboriginal people;
  • restore ATSIC or an equivalent body to take Aboriginal and Torres Strait Islander people into partnership as part of this nation and give them proper representation;
  • provide proper health and education services to all Australians regardless of race or location;
  • end the mistreatment of Aboriginal children and reduce family violence and alcoholism and enlist the Aboriginal people to help achieve these ends;
  • amend the constitution in a meaningful way to recognise the rights of Aboriginal and Torres Strait Islander people;
  • introduce human rights legislation to protect the rights of all Australians, including Aboriginal and Torres Strait Islander people.

How can we achieve these results?

We must inform ourselves and others of the real situation in the Northern Territory. We must tell our elected representatives this behaviour will no longer be tolerated. Organisations like Reconciliation Australia deserve support. Groups like "Concerned Australians" and "Stop the Intervention Now" are working to bring these abuses to public attention and also deserve support.

Above all we must not sit passively and let our fellow Australians continue to be treated as they have been since white settlement in this country.

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This is an edited extract of a speech given by the Hon Alastair Nicholson AO RFD QC at the annual general meeting of the Social Policy Connections Forum on 1 December 2010. Visit the SPC website for the full text.



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About the Author

The Honourable Alastair Nicholson AO, RFD, QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.

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