Now that the federal government has rejected the findings of its own review board, Indigenous Australians like Barbara Shaw find themselves with no other recourse than to complain to the United Nations Committee on the Elimination of Racial Discrimination (“CERD”).

For three weeks between mid-February to March 2009, CERD will meet in Geneva. The committee, which was established by the United Nations to monitor the implementation of the Convention on the Elimination of All Forms of Racial Discrimination (the “Convention”), to which Australia is a signatory, is scheduled to discuss state reports from Bulgaria, Congo, Croatia, Finland, Montenegro, Pakistan, Turkey, Tunisia and Suriname.

But it is the conduct of the Australian Government that is likely to draw the attention of the United Nations.

A group of Aboriginal people from the Northern Territory recently formed the Prescribed Area Peoples Alliance (PAPA) with a plan to complain to CERD about the racially discriminatory suffering caused by the Howard government’s Northern Territory Emergency Response, commonly known as the intervention.

CERD has the power to urgently respond to problems which require “immediate attention to prevent or limit the scale or number of serious violations of the Convention” and Barbara Shaw of PAPA has every intention of placing the world’s spotlight on the Australian Government’s policies in prescribed areas in the Northern Territory.

Former Federal Court Judge, Ron Merkel QC and I have been instructed by Barbara Shaw to prepare a complaint to CERD. But Barbara is not afraid to approach international forums herself, having already spoken out against the intervention at the 7th United Nations Permanent Forum on Indigenous Issues at the United Nations in NY in April 2008.

Barbara Shaw knows that Kevin Rudd is a former diplomat who understands the damage to Australia’s standing internationally if our nation were to join the ranks of Ethiopia, Belize, Chile, Nicaragua, Philippines, Brazil and Peru which are currently subject to the CERD’s Early-Warning Measures and Urgent Procedures.

The intervention contains at least four potential breaches that could be made the subject of the complaint; the compulsory quarantining of income, the five-year lease regime and its incidents; Bail and Sentencing provisions excluding cultural factors; and the Australian Crime Commission’s extensive powers in relation to Aboriginal children. Of course the suspension of the Racial Discrimination Act in respect of Aboriginal Australians is of its own right an appalling breach of our International obligations.

The Government has acknowledged that the impact of the intervention is racially discriminatory by suspending the operation of the Racial Discrimination Act, but argues that these discriminatory measures are “Special Measures” which are permitted under the Convention.

The direct and indirect discrimination against Aboriginal people under the intervention cannot be characterized as a ‘special measure’. The actions are so broad that they are not connected to the intended outcome, which is ostensibly the safety of women and children. In addition, the measures do not meet the standards set by the High Court (Gerhardy v Brown), let alone standards upheld by international jurisprudence.

There has been very little case law on what constitutes ‘special measures’. The primary decision is that of Gerhardy v Brown.

Justice Brennan in Gerhardy v Brown identified four indicia of a special measure as follows:

  1. A special measure confers a benefit on some or all members of a class;
  2. Membership of that class is based on race, colour, descent, or national or ethnic origin;
  3. The special measure is for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others, human rights and fundamental freedoms; and;
  4. The protection given by the special measure is necessary in order that they may enjoy and exercise equally with others, human rights and fundamental freedoms.

A fifth criterion is that the measure must not lead to the maintenance of separate rights for different racial groups nor “be continued after the objectives for which [it was] taken are achieved”. The convention also requires consultation with the affected parties before a special measure is implemented, which was not the case in circumstances of the intervention.

Despite the government’s rhetoric, none of the identified breaches could be characterized as a special measure under the High Court’s definition.

Unless you live and shop in the Northern Territory, you’re unlikely to have any idea about the intervention’s impact on Indigenous Australians.

The imposition of income management provisions is widely regarded as an insult to Aboriginal people in the Territory. The feeling of being stigmatised and restricted on the basis of race is having a deeply negative psychological impact.

The system is creating segregated service delivery, leading to deep feelings of shame and an increased experience of racism in daily life. For example, in some supermarkets, there are separate Aboriginal only queues for people using the “basics card”.

Far from improving access to ‘essential items’ for families, income management has created extensive layers of bureaucracy for Aboriginal people to negotiate before they are able to access their Centrelink entitlements.

This has made dealing with all the demands on families such as travel, health care, food, rent etc much harder.

The Australian Government has recently responded to a review of the intervention and announced that measures will be introduced that will allow the suspension of the Australian Racial Discrimination Act to be lifted and certain measures are to be made compliant with the Act.

Whilst this is to be encouraged there is no guarantee that these actions will satisfy Australia’s treaty requirements under the Convention. In fact, given the practical problems of having the legislation passed in the Senate, it is most unlikely that the legislation could be reformed in a manner that satisfies both the requirements of the convention and the political exigencies of conservative Senators.

It is clear from the impacts being felt by those living in Prescribed Areas, and from the complaints made to the NTER Review Board, that the intervention is failing Aboriginal People.

As a result, it is not surprising that Aboriginal Australians who have been denied justice in Australia will now embark upon a complaint to the United Nations in order to achieve change.

*George Newhouse is a human rights lawyer with Surry Partners. He has represented Vivian Alvarez and Cornelia Rau in their cases of wrongful deportation and wrongful detention by the Commonwealth.

Peter Fray

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