Indigenous Issues

International Instruments for the Protection of Indigenous Rights

1. Special Rapporteur of the Commission on Human Rights on the situation of human rights and fundamental freedoms of indigenous people

The Special Rapporteur has a mandate to:

Gather information and communications regarding violations of indigenous peoples’ human rights;
Formulate recommendations on measures to prevent and remedy these violations; and;
Work in close relation with other special procedures and other human rights bodies.

Link: http://www2.ohchr.org/english/issues/indigenous/rapporteur/ [1]

2. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

Was Adopted by General Assembly on 18 December 1992.

Note: declarations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct.

Link: http://www.unhchr.ch/html/menu3/b/d_minori.htm [2]

3. Declaration on the Rights of Indigenous Peoples [3]

Adopted by the General Assembly on 13 September 2007, The Declaration affirms the basic rights of indigenous peoples in a number of areas of special concern for these peoples, under the framework of the general principle or right to self-determination, including the right to equality and non-discrimination; the right to cultural integrity; the rights over lands, territories, and natural resources; the right to self-government and autonomy; the right to free, prior, and informed consent, and others.

Link: http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement [4]

4. ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169)

Adopted on 27 June 1989 by the General Conference of the International Labour Organisation and entered into force on 5 September 1991.

Note: Conventions only bind states that have ratified them (States Parties) – Australia has not ratified this Convention

Link: http://www2.ohchr.org/english/law/indigenous.htm [5]

5. Working group on indigenous populations [6]:

The Working Group has a two-fold mandate:

to review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous peoples
to give attention to the evolution of international standards concerning indigenous rights

Link: http://www2.ohchr.org/english/issues/indigenous/groups/groups-01.htm [7]

6. Open-ended inter-sessional Working Group on the draft declaration on the rights of indigenous peoples [8]:

The sole purpose of this group is to of elaborate a draft declaration on the rights of indigenous peoples. The draft is being prepared for consideration and adoption by the General Assembly during the International Decade of the World's Indigenous People.

Link: http://www2.ohchr.org/english/issues/indigenous/groups/groups-02.htm [9]

7. United Nations Voluntary Fund for Indigenous Populations [10]

Assists representatives of indigenous communities and organizations to participate in the deliberations of the Working Group on Indigenous Populations by providing them with financial assistance.

Link: http://www2.ohchr.org/english/about/funds/indigenous/ [11]

Australian Law to protect Indigenous Rights

Current bills, Families, Housing, Community Services and Indigenous Affairs portfolio [12]
Aboriginal and Torres Strait Islander Act 2005 [13]
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 [14]
Aboriginal Land Rights (Northern Territory) Act 1976 [15]
Australian Institute of Aboriginal and Torres Strait Islanders Studies Act 1989 [16]
Corporations (Aboriginal and Torres Strait Islander) Act 2006 [17]
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 [18]
Native Title Act 1993 [19]
Northern Territory National Emergency Response Act 2007 [20]
Racial Discrimination Act 1975 [21](gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Link to further details: http://www.aph.gov.au/library/INTGUIDE/law/indiglaw.htm#legislation [22]

Human Rights Issues in Indigenous communities

Indigenous peoples have 15 - 20 years lower life expectancy than non Indigenous Australians, and suffer higher rates of infant mortality. Life expectancy for Indigenous women is 63 years compared with the average of 82 years for all Australian women.

Indigenous peoples have higher unemployment rates.

Indigenous peoples are over-represented in custody and arrest figures and still experience much higher than average incarceration rates.

Around 2,000 children, or 20 per cent of indigenous school age students, were not enrolled. Rex Wild, who co-authored the ‘Little Children Are Sacred’ report, says one of his most important recommendations was to get children into preschool by the age of three and into school by five.

Following the abolition of their representative body, the Aboriginal and Torres Strait Islander Commission (ATSIC), Indigenous Australians now lack proper representation; can no longer elect their own representatives in this way; and will not have the same mechanisms for participation in governance and decision-making. ATSIC has been replaced by a national Indigenous Advisory Council appointed by the government, and lacking a legislative mandate.

Indigenous children and young people are over represented within the care and protection system. In Victoria it was found that Indigenous children are six times more likely to be removed from their family by Child Protection Services.

Link to 2005 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) Indigenous Shadow Report: http://www.wrana.org.au/WRC%20Project/Australian%20Indigenous%20CEDAW%20Shadow%20Report.pdf [23]

Link to 2005 Convention on the Elimination of all forms of Racial Discrimination (CERD) Shadow Report: http://www.naclc.org.au/multiattachments/2260/DocumentName/CERDAustralianNGOReport.pdf [24]

Link to Indigenous statistics (Australian Bureau of Statistic): http://www.abs.gov.au/Websitedbs/c311215.nsf/20564c23f3183fdaca25672100813ef1/0179c2b24398e077ca2570a8000945d2!OpenDocument [25]

‘Little Children Are Sacred’ Report

The Little Children are Sacred report was prepared by the NT Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse and released in May 2007.

It reported that child abuse in Indigenous communities throughout the Northern Territory was at crisis levels.

Link to ‘Little Children Are Sacred’ Report: http://www.nt.gov.au/dcm/inquirysaac/pdf/bipacsa_final_report.pdf [26]

Link to a summary of the ‘Little Children Are Sacred’ Report: http://www.nt.gov.au/dcm/inquirysaac/report_summary.html [27]

Important points made by the Inquiry included:

Child sexual abuse is serious, widespread and often unreported.
Most Aboriginal people are willing and committed to solving problems and helping their children. They are also eager to better educate themselves.
Aboriginal people are not the only victims and not the only perpetrators of sexual abuse.
Much of the violence and sexual abuse occurring in Territory communities is a reflection of past, current and continuing social problems which have developed over many decades.
The combined effects of poor health, alcohol and drug abuse, unemployment, gambling, pornography, poor education and housing, and a general loss of identity and control have contributed to violence and to sexual abuse in many forms.
Existing government programs to help Aboriginal people break the cycle of poverty and violence need to work better. There is not enough coordination and communication between government departments and agencies, and this is causing a breakdown in services and poor crisis intervention. Improvements in health and social services are desperately needed.
Programs need to have enough funds and resources and be a long-term commitment.
It is impossible to set communities on the path to recovery from the sexual abuse of children without dealing with the basic services and social ills. It is our hope that no Aboriginal child born from this year on will ever suffer sexual abuse. Rex Wild QC and Pat Anderson, Inquiry Co-Chairs.

What the Inquiry recommended:

The Inquiry urged the government to improve Aboriginal education systems, including local language development, to make education more effective for Aboriginal children.
A range of education campaigns to inform people about; child sexual abuse and what to do about it, mandatory reporting of child sexual abuse, the impact of alcohol, pornography and gambling on communities, families and children and the value of education, and encouraging a culture of parental and community commitment to sending children to school.
The Inquiry recommended urgent action be taken to reduce alcohol consumption in Aboriginal communities.
Family and Community Services (FACS) and the Police should work more closely with each other and with communities.
Family support services need to be improved, particularly in Aboriginal communities.
Empowerment of Aboriginal communities.
The Inquiry recommends that the government appoint a senior, independent person who can focus on the interests and wellbeing of children and young people, review issues and report to Parliament.

Legislation to Address Northern Territory Emergency Intervention

Northern Territory National Emergency Response Act, 2007
Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007
Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007-2008
Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007-2008

The Northern Territory Emergency Intervention

In June 2007 the Australian Government announced an Emergency Response to the ‘Little Children Are Sacred’ Report.

The Australian Government has implemented a range of measures to protect children and improve the communities in which they live, including:

introducing widespread alcohol restrictions on NT Aboriginal land.

introducing welfare reforms to direct income support and family assistance payments to basic necessities such as food, clothing and shelter.

enforcing school attendance by linking income support and family assistance payments to school attendance for all people living on Aboriginal land and providing meals for children at school.

introducing comprehensive health checks for all Indigenous children to identify and treat health problems, including any effects of identified abuse.

providing additional doctors, nurses, allied health professionals and specialist services.

acquiring townships prescribed by the Australian Government through five-year leases including payment of just terms compensation.

increasing policing levels in prescribed communities.

requiring intensified on-ground clean up and repair of communities by marshalling local workforces through Work for the Dole programmes.

improving housing and reforming community living arrangements in prescribed communities including repairing existing houses, building new houses, and the introduction of market based rents and normal tenancy arrangements.

banning the possession of X-rated pornography and introducing audits of all publicly-funded computers to identify illegal material.

improving governance by appointing managers for all government business in prescribed communities.

creating jobs in the delivery of Australian Government services, and

offering matched funding to create jobs delivering NT Government services.

The Northern Territory Emergency Response Taskforce (NTERT)

NTERT was formed to advise the Australian Government and oversee implementation of the emergency measures during their first year.

Dr Sue Gordon AM (Chair)
Major General Dave Chalmers AO, CSC (Operational Commander)
Dr William Glasson AO
Mr Roger Corbett AO
Ms Miriam Rose Baumann AM
Mr Mike Burgess
Mr Terry Moran AO

Link to ‘Northern Territory Emergency Response Taskforce - Final Report to Government’ (released on 21 June 2008): http://www.facsia.gov.au/nter/docs/reports/taskforce_report.htm [28]

Link to ‘Northern Territory Emergency Response – One Year On’ Report: http://www.facsia.gov.au/nter/docs/reports/one_year_on.htm [29]

Reactions to the Intervention

The measures of the Response which have attracted most criticism comprise the exemption from the Racial Discrimination Act 1975, the compulsory acquisition of an unspecified number of prescribed communities (Measure 5) and the partial abolition of the permit system (Measure 10). These have been interpreted as undermining important principles and parameters established as part of the legal recognition of indigenous land rights in Australia.

More generally, a lack of consultation with Aboriginal community leaders is often cited by critics of the Response, alongside the fact that the action addresses very few of the specific recommendations contained in the Little Children are Sacred Report, while introducing many measures not suggested in the Report.

Some key positions on the Intervention:

Aboriginal commentator Noel Pearson offered qualified support, criticising aspects of the Response while nevertheless believing it to be necessary and worthwhile.

The Aboriginal leader Galarrwuy Yunupingu initially opposed the Response, but eventually changed his position to one of support.

Former federal Indigenous affairs minister Mal Brough believes the intervention should be extended beyond the territory's borders.

Northern Territory's Anti-Discrimination Commissioner Tony Fitzgerald claims the intervention should be abandoned and the legislation underpinning it should be repealed. The intervention, he believes, has caused confusion, unfairness and inconvenience in remote Northern Territory communities.

Link to article on Noel Pearson’s position: http://www.abc.net.au/lateline/content/2007/s1962844.htm [30]

Link to an article on Galarrwuy Yunupingu’s change of position: http://www.theage.com.au/news/national/top-leader-now-backs-territory-intervention/2007/09/19/1189881595071.html [31]

UNIFEM’s Concerns

UNIFEM Australia is concerned

that Australia has not yet ratified the ILO Indigenous and Tribal Peoples Convention.

that not all of the ‘Children are Sacred’ report’s recommendations have been considered or implemented under the NT emergency intervention.

about elements of the intervention that seem unconnected to child health, such as:

- compulsory land acquisition by the federal government

- the abolition of entry permits for Indigenous communities and of Community Development Employment Projects programs

- the appointment of government business administrators to ‘run’ Indigenous communities

that the legislation covering the NT intervention places unparalleled control of Indigenous affairs in the hands of the Minister (or his designated delegate), and is largely discretionary and, in critical elements, poorly defined.

about the sustainability of these measures: whether the interventions will empower communities and support them appropriately, in a spirit of collaboration and respect, to adequately deal with the causes, triggers and consequences of abuse.

in implementing the intervention and its associated special measures the Government has had to suspend the Racial Discrimination Act (1975).

the Australian Medical Association has pulled out of the Commonwealth's intervention in the Northern Territory (June 2008), accusing the Federal Government of relying on the altruism of doctors to prop up the scheme.

Recommendations

Australia should ratify the ILO Indigenous and Tribal Peoples Convention.

The Government should work with Aboriginal political leaders and lay down strategies and programs which will alleviate problems.

The Government should continue to fund programs such as the Safe Families program, run by Tangentyere Council, focuses on reducing family violence and preventing children from becoming part of the child protection system.

Their status and rights should be defined and recognised in a lasting way. Two possible ways of doing this are:

- amendment of the 1901 Australian Constitution

- a Treaty between indigenous peoples and the Australian Government: The idea of a treaty was supported in principle by Prime Minister Bob Hawke in 1989, but opposed by John Howard