Indigenous Rights and the debate over a Charter of Rights in Australia

Indigenous Rights and the debate over a Charter of Rights
in Australia

Tom Calma, the National Race Commissioner and
Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

Human Rights Law Resource Centre’s Annual Human Rights
Dinner

 

Friday, 4 April 2008, from 7.00 – 10.30pm

Victorian Bar’s Essoign Club, Level 1, 205 William St,
Melbourne

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Good evening distinguished guests, my Indigenous brothers and sisters and
human rights friends and colleagues,

May I begin by acknowledging the Wurundjeri people of the Kulin Nations, the
traditional owners of the land where we meet today.

My thanks to the Human Rights Law Resource Centre, in particular to Phil
Lynch, for inviting me to address this important gathering of human rights
advocates and supporters about what I consider vital for the implementation and
promotion of human rights in Australia.

I would also like to begin by acknowledging the presence of our international
distinguished guest Gay McDougall and commending her on her tireless effort to
promote the rights of minority groups around the world. Gay has had a long and
fruitful relationship with the Human Rights and Equal Opportunity Commission, in
her capacity as a member of the Committee on the Elimination of Racial
Discrimination and through her efforts at the World Conference Against Racism.
And we welcome her as a friend.

I would also like to pay my respect to the dignitaries at this gathering,
particularly to the Honourable Malcolm Fraser for his unwavering support of
Indigenous rights and human rights in this country.

Today I would like to speak about Indigenous human rights in the context of
the emerging debate on an Australian Charter of Rights.

A few weeks ago I was honoured and humbled to be entrusted by the national
stolen generations representative groups with the responsibility to participate
in and later to speak in response to the Prime Minister’s Apology to the
Stolen Generations.

I was touched by the Apology in all imaginable ways: as the Aboriginal and
Torres Strait Islander Social Justice Commissioner; the National Race
Discrimination Commissioner and most importantly as the great grandchild of a
Stolen Generations woman.

‘Her mother will not part with her’. This was the
chilling account of the officer who reported on my great grandmother in 1899.
When I recalled this at the Apology ceremony I had in mind not solely the pain
of the past, but also the responsibilities of the present, and the demands upon
the future to prevent the violation of basic human rights and dignity, such as
the right of a mother to care for her child.

Yet, despite our knowledge of these past events, the spectre of human rights
violations remains vivid to many people living in Indigenous communities today.
Most recently, we have seen the introduction of the NT intervention that, in the
name of protecting children and women from abuse and violence, involves
violations of the rights of Indigenous peoples.

The intervention adopts an approach that is entirely inappropriate from a
human rights perspective by seeking to justify measures which breach basic human
rights on the basis that they are taken to advance other, ‘superior’
human rights.

No one wants to see children abused, families destroyed, and the aspirations
for a bright future dulled because hope has been overwhelmed by despair.

Ultimately, the sustained scrutiny and national debate on issues of violence
and abuse in our Indigenous communities creates a momentum for change, and for
action.

Clearly we need such action.

Such change should, however, be considered, evidence based, capable of being
achieved and systemic.

In my latest Social Justice Report to the federal Parliament I argue
that measures that violate the human rights of the intended beneficiaries are
more likely to work in ways that undermine the overall well being of the
communities in which they live in both the short and the longer term.

For example, the Government has clearly stated that the NT intervention seeks
to address a breakdown in law and order in Aboriginal communities. And yet it
involves introducing measures that undermine the rule of law and do not treat
Aboriginal citizens equally.

This places inequality at the heart of the NT intervention measures. Such
inequality will inhibit the building of relationships, partnerships and trust
between the Government and Indigenous communities. It will also undermine the
credibility of the measures, and ultimately, threaten the sustainability and
long-term impact of the measures.

Human rights law is clear that any measures must be non-discriminatory in
their application and their impact. This obligation is non-negotiable and unable
to be deviated from.

Put simply, all measures to address family violence and child abuse should
themselves respect human rights. It would be outrageous to suggest that it is
not possible to achieve this.

What I want to see is a change to the current model for the intervention so
that it is consistent with human rights, and draws on the strengths of
communities so they are part of the solution and not just treated as if they are
the problem.

My latest Social Justice Report to federal Parliament sets out a
ten-point plan for making the intervention compliant with human rights.
Ultimately, this is about the workability of the NT intervention and enabling it
to shift so that it can become a shared ambition, and a partnership with
Indigenous communities.

The Ten Point Action Plan for modifying the NT intervention, outlined in
detail in the Social Justice Report 2007, includes:

Action 1: Restore all rights to procedural fairness and external
merits review under the NT intervention legislation.

Action 2: Reinstate protections against racial discrimination in the
operation of the NT intervention legislation.

Action 3: Amend or remove the provisions that declare that the
legislation constitutes a ‘special measure’. This includes by adding
provisions to the legislation that require decision makers to exercise their
discretion consistent with the beneficial ‘special measures’ purpose
of the legislation.

Action 4: Reinstate protections against discrimination in the Northern
Territory and Queensland.

Action 5: Require consent to be obtained in the management of
Indigenous property and amend the legislation to confirm the guarantee of just
terms compensation.

For these measures, I challenge anyone to explain how
providing these basic democratic protections could possibly hinder the goal of
protecting children. The only possible answer is ‘short term
expedience’ prevailing over guarantees of access to justice. And that is
not a good enough, and is not a good enough answer.

Action 6: Reinstate the CDEP program and review the operation of the
income management scheme so that it is consistent with human rights.

Action 7: Review the operation and effectiveness of the alcohol
management schemes under the intervention legislation.

Actions 6 and 7 seek to address the arbitrariness of the existing regimes for
income management and alcohol restrictions provided for under the intervention
legislation. The report states that some form of quarantining and some form of
alcohol restrictions can be justified consistently with human rights. The
sweeping and discriminatory approach adopted through the legislation, however,
is not that approach. The report recommends that the government seek to
implement voluntary community based schemes in place of the blanket bans
currently provided for.

Action points 8 - 10 then look to how the intervention can transition back to
a process that is a partnership with Indigenous communities and where the
ambitions are shared rather than imposed. They are as follows.

Action 8: Ensure the effective participation of Indigenous peoples in
all aspects of the intervention – by developing Community Partnership
Agreements.

Action 9: Set a timetable for the transition from an
‘emergency’ intervention to a community development plan. And

Action 10: is to Ensure stringent monitoring and review
processes.

The most revealing indicator that the NT intervention was not
consistent with human rights principles was the provision at the centre of the
legislative machinery used to support the intervention, namely suspending the
operation of Racial Discrimination Act. Further, immunity is provided for any
act of discrimination that occurs under the provisions of the intervention
legislation. This includes decisions made by bureaucrats or other agents –
such as storeowners – in communities. This provides an extraordinarily
broad exemption from the protection of discrimination.

In the current government’s review of the intervention measures the
first priority should be to reinstate the Racial Discrimination Act. In so doing
the government also needs to consider how in the longer term Australia’s
Federal anti-discrimination laws can be made more resilient to the exigencies of
political manipulation and more effective in achieving their goals of equality
and non-discrimination.

There is a need for the Federal Racial Discrimination Act to evolve if it is
to remain relevant to contemporary Australian society. Because of this, the Human Rights and Equal Opportunity Commission will shortly be releasing
the first of a series of research papers aimed at assessing the effectiveness of
the Act, and highlighting the need for future reform.

For instance the ability of the Racial Discrimination Act to deal with
systemic discrimination, as well as individual complaints, needs to be improved.
In addition, the burden of proof in race discrimination cases is so onerous that
many incidents of racism occur without legal redress. This needs to be
reviewed.

The first research paper about to be released seeks to contribute to an
analysis of the continuing usefulness and effectiveness of the RDA by placing it
in context with contemporary race discrimination legislation in Canada, the
United Kingdom (U.K.), the United States (U.S.) and the European Union (E.U.).
By looking at the way in which other similarly placed nations have responded to
the problems of racial discrimination and inequality, we are presented with a
series of alternative models against which the current Australian legislation
may be compared. Recent developments in these jurisdictions may suggest
potential directions for legislative reform.

History tells us that neither democracy nor laws stop politicians and public
authorities from pursuing a course of action simply because it overrides the
collective or individual rights of minority groups. Anna Katzmann, president of
the NSW Bar Association, in the context of the debate about the bill of rights
in NSW, rebuffed the common argument that says our political structure has
served us well since federation and that the founding fathers themselves
didn’t recommend a bill of rights. As Katzmann rightly observes;
‘Yet, these are the same men who did not think that Aborigines should be
counted as members of the Australian populations. These are the same men who
were determined to ensure that governments could discriminate against
‘coloured aliens’.

The NT intervention among other examples (such as native title amendments in
1993) show us that the issue of basic human rights should not be left solely in
the hands of a particular government or be subject to the exigencies of a
particular set of circumstances. We need to have a more comprehensive legal net
to protect human rights in Australia.

In the environment created by the Prime Minister’s Apology, I believe
that a Charter of Rights in Australia — which specifies those fundamental
rights that should never be compromised other than in grave exceptional
circumstances — will assure all Australians, Indigenous and
non-Indigenous, that their basic rights are protected.

Some would say that a Charter of Rights in general terms protects the rights
of individuals not the collective, so how would it aid Indigenous people in our
struggle to have our collective rights recognised. I have in mind a few
responses:

1. Yes a Charter of Rights is not adequate by itself to deal with Indigenous
   issues but is nevertheless an important element of a holistic approach that
   includes: capacity building; governance measures, and effective participation in
   government policy and service delivery.
   
2. Indigenous people - as individuals - should have the protection of a Charter
   of Rights as a supplement to, rather than a substitute for, their collective
   rights to self-determination and cultural identity.
   
3. The protection of equality and non-discrimination through a Charter of
   Rights may not necessarily exclude the recognition of peoples’ collective
   right to enjoy their culture. A Charter that protects economic, social and
   cultural rights, as well as political and civil rights, would contribute
   positively to the much-needed recognition of Indigenous rights.
   

The enactment of a Charter of Rights does not mean that we no
longer demand the recognition of the distinct status of Indigenous Australians.
Indigenous peoples are the First Peoples of this land not simply a dispersed
collection of disadvantaged communities or a minority group with special needs.
The unique status of Indigenous peoples should be recognised in the Constitution
as a prerequisite for a genuine process of reconciliation and the promotion of a
human rights culture. In addition, and at the same time, Constitutional change
will be necessary to ensure that recognition, once it comes, is not whittled
back in the eternal swings and roundabouts of politics.

I have called on the government to consider the Canadian constitutional
precedent of recognising and affirming Aboriginal rights in Section 35 of the
Canadian Constitution. Such a provision in the Australia Constitution might read
as follows:

The pre-existing rights of Aboriginal peoples in Australia are hereby
recognised and affirmed, consistent with international human rights
standards.

I strongly support the introduction of an Australian Charter of Rights
because it provides protection to all Australians. I also think a Charter would
provide a convivial environment to progress the struggle of Indigenous people
towards the more substantive rights pertaining to our status as a people.

The issues I raise this evening may appear to some to be essentially
‘Australian’. One of the great benefits of bringing people like
our esteemed guest, Gay McDougall to Australia, is that we are provided with a
broader perspective that sees these domestic issues as part of global trends,
patterns and protections.

A few years ago many of us here tonight turned on the evening news to become
spectators of a race riot that was taking place in a local municipality of
Sydney but could’ve been taking place in London, Paris or anywhere in
Europe.

The underlying forces of discontent and conflict being played out in Cronulla
in 2005 were not that different to those present in the social discontent
manifesting throughout the world then and today.

On behalf of everyone I thank Gay McDougall for her precious insights that
will enable us to understand and address these matters of common concern.

Thank you