BY AMY MCQUIRE, JUNE 1, 2011
Originally published in Tracker Magazine.
INTERNATIONAL: The Australian government has rejected recommendations to discuss a treaty, provide compensation to the Stolen Generations and reform Native Title to reverse the burden of proof, all made in an extensive international review of our human rights record.
The Gillard government this month handed down its response to the Universal Periodic Review (UPR), conducted by the United Nations Human Rights Council.
UN member states are required to undertake the review every four years, in which their human rights record is put under the international microscope.
Last year, member states handed down 145 recommendations, expressing concern over Australia’s treatment of asylum seekers and people with disabilities. But a large percentage of the recommendations also targeted Australia’s treatment of Aboriginal people, ranging from the bypassing of the Racial Discrimination Act in the Northern Territory, to skyrocketing Indigenous incarceration rates, along with the pressing need for compensation for Stolen Generations victims.
Canada and Norway both recommended Australia fully implement the Racial Discrimination Act, bypassed to enable the NT intervention laws, with Slovenia also calling on Australia to consult with Aboriginal people before suspending the RDA again.
Slovenia also took Australia to task over compensation for the Stolen Generations, calling on Australia to establish a National Compensation Tribunal, as outlined in the Bringing Them Home report.
A large number of member states called for Australia to investigate deaths in custody, and take action to curb Indigenous incarceration rates.
Iran also called on Australia to investigate the use of “Tasers” and curb any excessive use of the devices by police officers.
In addition, the United Kingdom recommended reforming the Native Title Act 1993 to amend the requirements that prevent Indigenous Australians from exercising their right to their traditional lands and customs.
Attorney General Robert McClelland said last week that Australia had accepted “in full or in part” 90 percent of the recommendations outlined by the UPR.
But there was no word in Australia’s response on compensation to the Stolen Generations, or mention of any reform to the Native Title Act to reverse the burden of proof on Native Title claimants. The government also remained silent on whether it would discuss a treaty.
Ben Schokman from the Human Rights Law Centre says that while he welcomed Australia’s response, and the consultation process with community groups, it still could have done more.
“The small percentage of recommendations rejected outright are also recommendations relating to the most significant human rights issues in Australia,” Mr Schokman told Tracker.
Mr Schokman says the Australian government had been “slippery” in its acceptance of some of the recommendations.
“There are a large number of recommendations that were accepted on the basis either that they are already incorporated as part of domestic law and policy or that they were accepted in part by giving further consideration to them.
“We think the way in which Australia has done this is a little bit slippery, and it doesn’t actually reflect exactly how the law and policies actually are, or doesn’t reflect a genuine commitment to necessarily consider them further.”
One example is the issue of deaths in custody. In its response, Australia claims it has endorsed a National Indigenous Law and Justice Framework in order to tackle Indigenous justice issues, but does not outline the results of this framework, or any further action to curb the problem.
“The international community regarded the disadvantage and marginalisation faced by Aboriginal and Torres Strait Islanders as one of the most important issues in Australia, yet the way Australia has responded to a lot of those recommendations has been essentially to brush them aside and dismiss them on the basis they are included as part of domestic law and practice,” Mr Schokman said.
“I think that’s particularly concerning, especially given the evidence that makes it abundantly clear that Aboriginal and Torres Strait Islander people are among the most disadvantaged people in Australia.”
Recommendations from around the world
Continue to implement its efforts to attain the constitutional recognition of Indigenous peoples.
Ensure effective implementation of the Declaration on the Rights of Indigenous People, including in the Northern Territory,and provide adequate support to the National Congress of Australia’s First Peoples to enable it to address the needs of Indigenous people.
Continue to engage with the Aboriginal population and Torres Strait Islanders and ensure the equal protection of their fundamental rights.
Intensify ongoing efforts to close the gap in opportunities and life outcomes between Indigenous and non-Indigenous peoples, especially in the areas of housing, land title, health care, education and employment.
Incorporate international obligations under human rights instruments into domestic law.
Carry out, in consultation with the communities concerned, a comprehensive assessment of the effectiveness of actions and strategies aimed at improving socio-economic conditions of Indigenous peoples and if necessary correct these actions.
Continue efforts to increase the representation of Indigenous women in decision-making posts.
Launch a constitutional reform process to better recognize and protect the rights of Indigenous people, taking into account the UN DRIP.
Take the necessary measures to fully incorporate into Australian legislation its international obligations in the field of human rights.
• Continue in particular the process of constitutional reform in order to better recognize the rights of Indigenous peoples.
• Continue the implementation of policies aimed at improving the living standards of Indigenous peoples and take all the necessary measures to eradicate discrimination against them.
Fully implement the Racial Discrimination Act and the revision of federal laws to be compatible with the UN Declaration on the Rights of Indigenous Peoples.
• Implement the recommendations made by the United Nations Special Rapporteur on the rights of Indigenous peoples after his visit in 2009.
Consider reinstating, without qualification, the Racial Discrimination Act into the arrangements under the Northern Territory Emergency Response and any subsequent arrangement.
Consult with Aboriginal and Torres Strait Islander people, and take into consideration the guidelines proposed by the Australian Human Rights Commission before considering suspension of the Racial Discrimination Act for any future intervention affecting the Aboriginal and Torres Strait Islander people.
• Establish a National Compensation Tribunal, as recommended in the Bringing Them Home report, to provide compensation to Aboriginal and Torres Strait Islander people that are negatively affected by the assimilation policy, particularly as it applies to children unfairly removed from their families and the parents of those children.
• Institute a formal reconciliation process leading to an agreement with Aboriginal and Torres Strait Islander people.
Increase the provision of legal advice to Indigenous peoples with due translation services reaching especially Indigenous women of the most remote communities.
• Include in its national norms recognition and adequate protection of the culture, values and spiritual and religious practices of Indigenous peoples.
• Revise its Constitution, legislation, public policies and programmes for the full implementation of the United Nations Declaration of Indigenous Peoples.
• Promote the inclusion and participation of Indigenous peoples and Torres Strait Islanders in any process or decision-making that may affect their interests.
Take effective legal measures to prohibit the use of excessive force and “Tasers” by the police against various groups of peoples.
• Take immediate legal measures to remove restrictions against access of Indigenous women and children to appropriate health and education services and employment opportunities.
Strengthen efforts to combat family violence against women and children with a particular focus on Indigenous communities.
Ensure that its legislation allows for processes of consultations in all actions affecting Indigenous peoples.
Implement specific steps to combat the high level of deaths of Indigenous persons in places of detention.
All deaths in custody be reviewed and investigated by independent bodies tasked with considering prevention of deaths and implement the recommendations of Coronial and other investigations and enquiries.
Implement measures in order to address the over-representation of Indigenous communities in prison.
• Examine possibilities to increase the use of non-custodial measures.
• Increase the participation of the Aboriginal and Torres Strait Islander communities in the process of closing the gap in opportunities and life outcomes.
Reform the Native Title Act, amending strict requirements which can prevent the Aboriginal and Torres Strait Islander peoples from exercising the right to access and control their traditional lands and take part in cultural life.