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Dealing with a national tragedy - failure is not an option

By Tom Calma - posted Monday, 3 September 2007

Since taking office in July 2004, I find myself as the sole independent statutory watchdog on Indigenous affairs in Australia. And what a roller coaster ride it’s been trying to keep track of the constant shifts in policy as new ministers seek to make their mark on this portfolio.

The most recent shift in policy, that arguably started 12 months ago, is best compared to an earthquake. In fact, since Rex Wild QC and Pat Anderson’s Little Children are Sacred report was released in April this year, followed by the government’s legislative package of measures to address “child abuse” in the Northern Territory which is now law, it seems like Indigenous affairs in this country has been shaken up, turned upside-down and flipped over again.

There has been much debate about the raft of measures introduced by the government to improve the well-being of certain communities in the NT. There has been just as much contention about their far-reaching implications, their lack of scrutiny and the haste with which they are being implemented. In the midst of this uncertainty there is one thing we can be sure of - this new bi-partisan focus on Indigenous issues presents a historic opportunity to deal with the national tragedy in Indigenous affairs.


The Northern Territory national emergency response package and action taken under it must seek to achieve its goals consistently with fundamental human rights, in particular, the right of racial equality.

These laws plainly impact to a significant extent - almost entirely in most instances - on Indigenous communities. As such, it is inevitable that there will be discriminatory effects. The laws generally must, therefore, be justifiable as “special measures”, taken for the advancement of Indigenous peoples, to be consistent with human rights principles and for exemptions from discrimination law to be lawful. If the measures cannot be justified as benefiting this disadvantaged group, they should not be enacted.

To understand what is at stake for Indigenous Territorians you need to put yourself in their shoes. How would you feel if your land was taken over against your will and you were told for the next five years that you had no right to be on it?

Or ask yourself the question posed by the Chairwoman of the Secretariat of National Aboriginal and Islander Care Muriel Bamblett this week: “How would you feel if there was a law which made it OK for you to be discriminated against because of your race?”

It is clear the situation of Indigenous Territorians is a case where urgent action is necessary. However, the success of the action, both immediately and in the long term, will depend on effective consultation, monitoring and review. Success will also depend on involving Indigenous peoples every step of the way. Measures taken with neither consultation nor consent cannot meaningfully be said to be for the “advancement” of a group of people, as is required by the legal definition of “special measures”.

To take any other approach contemplates a paternalism which can only undermine the wellbeing of the group. Such an approach in the context of Indigenous peoples is contrary to their right to self-determination and undermines their dignity.


Ideally, to justify the legislation as a “special measure” there should have been comprehensive consultation beforehand and significant input from the communities concerned. That has not happened - but it is never too late to embark upon a consultation process.

Development and human rights experience, both in this country and worldwide, shows that unless those people most affected by policy are most involved, those policies will not succeed. We don’t need to re-invent the wheel - simply know our history.

While it is appropriate to consider the effect of the package as a whole when determining whether it is a “special measure”, it is still necessary for its parts to be “appropriate and adapted” to this purpose. Widespread concern is being expressed by Indigenous communities that some of the measures are not appropriate and adapted to the issue of child protection. These include the compulsory acquisition of property, the abolition of the CDEP employment scheme and changes to the permit system.

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This piece forms part of a chapter in a forthcoming book Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal Australia edited by Jon Altman and Melinda Hinkson and to be published by Arena Publications next month.

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About the Author

Mr Tom Calma is the Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner.

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