Australia should comply with human rights: UN

Tent EmbassyAs the Australian Government gears up to implement a second version of the NT Intervention, the proposed laws should be considered by the federal parliament’s new Human Rights Committee, says the UN’s Matilda Bogner. That would be a strong signal that the government is committed to its human rights obligations.

NT intervention law must comply with Australia’s human rights obligations

By Matilda Bogner*

There is a path that the Australian Government can take to reassure its critics that it wants the Stronger Futures legislation to comply with human rights standards – putting it up for review by the Parliamentary Joint Committee on Human Rights would be a strong signal.

The Stronger Futures legislation seeks to continue the NT intervention. Concerns regarding the Australian Government’s interventions in the NT, dating back to 2007, have been expressed loudly and repeatedly by affected indigenous communities and their supporters, the international human rights system, and international and domestic human rights groups. The latest iteration of the intervention is now before the Australian Senate as the Stronger Futures in the Northern Territory Bill (2012) and it is worrying to see a number of measures and provisions in it are similar to the highly-criticised previous response.

If we listen to the critics of the proposed Stronger Futures legislation, it would seem that mistakes are being repeated and lessons have not been learned in trying to tackle serious issues of safety and disadvantage of indigenous communities in the NT. The National Congress for Australia’s First Peoples, the body established by the current Government to represent indigenous voices at the national level, has expressed deep concern about the draft legislation, assessing that it will have a discriminatory impact on indigenous people, and that its formulation was not based on credible consultation with indigenous communities.

‘Intrusive and limiting’

The Australian Human Rights Commission considers “the measures contained within the Stronger Futures Bills are intrusive and limiting of individual freedoms and human rights.” Australia’s Human Rights Law Centre said that the proposed legislation will “undermine democracy, further damage the Government’s relationship with Aboriginal peoples and be ineffective in addressing Aboriginal disadvantage.”

The UN’s global human rights watch-dogs, the Human Rights Committee, the Committee on Economic, Social and Culture Rights, the Committee on Racial Discrimination, and the Special Rapporteur on the Rights of Indigenous Peoples, have all expressed concern about provisions in the previous legislation that will remain in place under the proposed Stronger Futures legislation. Measures such as income management and withdrawal of social security for entire families if one child does not attend school can appear punitive and may have a disproportionate and discriminatory impact on indigenous communities. As the Special Rapporteur pointed out, such measures undermine the key principle of self-determination of the UN Declaration on the Rights of Indigenous Peoples, which Australia endorsed in 2009.

There have been improvements this time around in designing the new legislation for the NT. The government has invested heavily in carrying out consultations and changes have been made to reduce the discriminatory impact of the original NT National Emergency Response legislation. Significant programs have been funded in health, education, employment and housing in these communities. However, concerns remain that the consultations may not have been sufficient to guarantee meaningful participation of indigenous communities as stipulated by the Declaration.

Guiding principles

The right to self-determination and the principles of free, prior and informed consent are key guiding principles in this context. Legislation that seeks to empower and improve the situation of indigenous peoples must be based on extensive and meaningful consultation with affected communities. It must ensure that a high degree of control over decision-making is given to indigenous communities. Compliance with these principles will also increase the likelihood that measures taken will be effective, and supported by communities.

There is a path that the government can take to reassure its critics that it wants the Stronger Futures legislation to comply with human rights standards. The Parliamentary Joint Committee on Human Rights can review any Bill or Act of Parliament and provide a “statement of compatibility” with Australia’s international human rights obligations. The passing of legislation for this committee in late-2011 was a welcome step that brings Australia closer to complying with its international obligations for legislative compliance with human rights norms. The Stronger Futures legislation was introduced to parliament before this new system, but putting it up for review by the Parliamentary Joint Committee on Human Rights would be a strong signal that the government is committed to bringing it fully in line with its human rights obligations.

*  Matilda Bogner is the Regional Representative for the United Nations Office of the High Commissioner for Human Rights (OHCHR) Regional Office for the Pacific, based in Suva, Fiji.

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  • OHCHR leads global Human Rights efforts and works to promote and protect human rights guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948.
  • OHCHR is headed by the High Commissioner for Human Rights, Navi Pillay, who coordinates Human Rights activities throughout the UN System and supervises the Human Rights Council.
  • OHCHR Regional Office for the Pacific covers 16 countries: Australia, Cook Islands, Fiji, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.

One comment

  1. As Senior Legal Officer with the Australian Law Reform Commission for the ARC Report 117 on ‘Commonwealth Laws and Family Violence’, launched this year by Hon Roxon, the research and recommendations I had completed as an Issues Paper, Discussion Paper and for the chapter of the Final Report is significant for debate on Stronger Futures and IM as policy. As an Indigenous Solicitor (NSW) and senior researcher I believe there needs to be more debate on the issues of domestic and international law in regard to Income Management. The RDA suspension showed the fragility of statutory law, in relation to Intervention laws. UNDRIP should be incorporated into Australia’s domestic law and inform IM and other areas of Indigenous policy in Australia.

    Virginia Marshall

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