The Government says that Bills now before the Parliament fulfill its promise to reinstate the Racial Discrimination Act 1975 (Cth) so that the Northern Territory Emergency Response complies with Australia’s human rights treaty obligations. However, in reality, passage of these Bills would deliver business as usual: discrimination, disempowerment and disappointment.
The Bills currently up for discussion include the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 and the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill 2009.
These proposed laws perpetuate rather than end discrimination; they extend the process of disempowerment; and they reinforce powerful feelings of disappointment amongst Indigenous peoples.
In order to enact the Northern Territory Emergency Response, the Australian government suspended the Racial Discrimination Act (RDA). In depriving residents of “prescribed” Indigenous communities anti-discrimination protections, the Australian government showed contempt for the principle of fundamental equality and legitimised discrimination against Indigenous peoples of Australia.
In doing this, it excluded the essential power of the Racial Discrimination Act - that any Australian statute is invalid if it detracts from the equality of all before the law. The RDA incorporates the fundamental principle of equality into Australian law and it is this principle that underpins all other ideas about human rights. It is only because we recognise and respect the essential humanity of all people, regardless of attributes such as culture, language, ethnicity, gender or skin colour, that we can go on to recognise the rights and freedoms that should be accorded to all.
Such infringements of human rights standards have attracted criticism from the UN’s human rights monitoring bodies and have diminished Australia’s potential to champion the cause of human rights internationally.
Amnesty International has always supported action to protect the rights of the most vulnerable, particularly women and children, but holds governments accountable for doing this in a way that respects all human rights norms. It is not necessary to violate some rights in order to protect others.
The legislation now before the Parliament perpetuates discrimination by providing neither relief from, nor redress for, discriminatory action already taken under the intervention. It allows measures such as race-based compulsory income management to continue, unchanged, until mid 2011. Moreover, it provides no guarantee that the amended intervention legislation would be bound by the RDA, an important omission given that a constitutional power to make race-based law exists but entrenched protection against racial discrimination does not.
That the same government that delivered the Apology to the Stolen Generations and endorsed the Declaration on the Rights of Indigenous Peoples should still be developing and implementing policy without the free, prior and informed consent of those affected can only be a matter for profound disillusionment.
Notwithstanding its exclusion of the RDA, the original intervention legislation declared all of its measures to be “special measures”. The government has made a similar claim about intervention measures in its proposed new laws.
Under international law, special measures are intended to allow for affirmative action. They must be necessary, proportional to the problem, limited in scope, of a temporary nature, and implemented with the consent of the affected peoples. They must also be considered beneficial by those affected by them.
The government claims that it has now consulted with communities and is entitled to enact special measures on their behalf. However, that consultation process fell well short of the relevant human rights norm - that of free, prior and informed consent, set out in Article 19 of the Declaration on the Rights of Indigenous Peoples. The imposition of restrictions without consent, subjection to the extraordinary powers of government business managers, and the undermining of Indigenous health, employment and community governance initiatives, has further disempowered Indigenous communities and led to what one journalist at The Australian, Nicholas Rothwell, recently described as a “landscape of despondency”.
Government consultations and Amnesty International’s research in prescribed communities revealed that some people do consider measures such as compulsory income management, and alcohol and gambling restrictions to be beneficial. This is in the context of problems such as humbugging and alcohol and drug-fuelled violence.
But the fact remains that these measures curtail rights available to the rest of the Australian community. It is not clear that restrictions, such as compulsory income management, are improving the welfare of residents living in communities subjected to these measures, particularly women and children. From the evidence available - and the Australian Institute of Health and Welfare notes that it is of poor quality, in part due to the failure to set up baseline measurements - there has been no clear improvement in child welfare, rates of domestic violence or school attendance. There are no other indicators that the gap is being closed.
Above all, community members have not given their consent to being the subjects of extraordinary restrictions. As Amnesty International and the government’s own review of the intervention found, there is widespread community resentment of racially-targeted measures. For many Indigenous peoples these measures are a forcible reminder of the paternalistic, intrusive control and egregious discrimination of the past.
The Bills widen the already considerable discretions of the Minister for Families, Housing and Community Services in relation to prescribed areas, and compulsory welfare quarantining. It is proposed that some of these powers be exercised in a delegated instrument not subject to disallowance by the Senate.
Even the most liberalising reforms in the Bills - the possibility of obtaining exemptions from compulsory income quarantining or special benefits for submitting to it - have not been developed with the individuals who will be affected. They don’t meet UN human rights standards for ensuring that the marginalised enjoy the right to social security on the basis of equality with others.
Indigenous people in Australia need human rights protections. They need the government to fulfill its international human rights obligations to ensure equality before the law.
As the ALP 2007 Platform acknowledges, “historical policies are a fundamental cause of poverty and marginalisation today”. These proposed laws provide no assurance that the Australian community will not be faced with this reflection as it contemplates the current policy in some years’ time.