Addressing Indigenous Exclusion and Discrimination through Self-Determination

The plight of many Indigenous communities in Australia is the most significant and pressing human rights issue in this country.  Indigenous communities continue to be subjected to both direct and systemic discrimination, with the result that they remain particularly disadvantaged in their enjoyment of other fundamental human rights.  During her recent visit to Australia, Amnesty International Secretary-General, Irene Khan, observed that ‘the longstanding failure of Australian governments to turn this tide of human tragedy demands much more than condemnation’. The denial of basic human rights for many Indigenous peoples is not just a matter that affects Indigenous Australians themselves, but is also a matter that should be of serious concern to the entire Australian community.  As a society, we all suffer when the poor, the dispossessed, the oppressed and the vulnerable are unable to assert their basic human rights.  Inequalities waste human potential, often lead to social instability, and rob our nation of the opportunity for all of us to benefit from the richness of diversity.

Discrimination is both a cause and consequence of poverty and social exclusion.  Discrimination often traps marginalised individuals and communities in a downward spiral.  Discrimination, marginalisation and exclusion often lead to poverty and economic under-development, which in turn leads to further discrimination.

The result of this cycle of poverty and discrimination is that minorities, such as Indigenous Australians, are often left behind because they do not have the opportunity to have their voices heard.  When it comes to policy making and decision making about matters which directly affect them, often the unique circumstances of their exclusion are not taken into account.  This leads to isolated communities, a lack of basic services, lack of education, distrust of government, violence and immense and lasting psychological damage.

Discrimination is not only caused by laws and policies.  Discrimination also manifests by feeding deep-seated social prejudices, which perpetuate feelings of disempowerment, marginalisation and social exclusion.

The key to addressing the situation faced by many Indigenous communities is the empowerment of those communities.  Many Indigenous Australians are often unable to speak for themselves and to assert their basic human rights.  Human rights promote political participation, empowerment, and addressing the key causes that lead to poverty in the first place.  Rather than a top-down paternalistic approach, addressing disadvantage requires engaging with affected people, and involving them in the design and implementation of community based approaches to achieve substantive equality.

If I were Attorney-General, I would take the following first steps to address Indigenous disadvantage in Australia.

First, I would immediately reinstate the operation of the Racial Discrimination Act 1975 in full and in respect of all aspects of the Northern Territory Intervention.  Instead of looking to implement technical, legal amendments in an attempt to characterise Northern Territory Intervention measures as ‘special measures’ under the Racial Discrimination Act, the RDA must be fully reinstated to enable scrutiny of whether the measures properly constitute ‘special measures’.

The fact that the legislation was suspended in the first place is a matter of great concern, and clearly breaches Australia’s international human rights obligations.  The result of the suspension of the Act is that, both practically and symbolically, the measures designed to ‘Close the Gap’ will simply not work.

Practically, suspension of the Racial Discrimination Act has meant that the Intervention’s measures cannot be scrutinised for whether they do actually meet the criteria required to be classified as ‘special measures’ for the benefit of Indigenous communities.  Symbolically, the wholesale brushing aside of rights of non-discrimination, and the implementation of draconian, racially-based policies, is particularly damaging to the relationship between Australian governments and Indigenous Australians.  Such measures have contributed to strong feelings among Indigenous communities of disempowerment, disillusionment, voicelessness and distrust of government.

Of course, reinstatement of the Racial Discrimination Act would require that particular aspects of the Northern Territory Intervention be redesigned.  In this respect, and as a crucial second step, it is clear that many of the Northern Territory Intervention measures, as currently constituted, must be scrapped.  In their place, appropriate measures must be designed that involve the full, meaningful and effective participation of affected Indigenous communities.

In this respect, listening to the voices of affected communities and involving them in working out ways to address their disadvantage is crucial to ensuring that measures designed to Close the Gap and address Indigenous disadvantage are effective, culturally appropriate and, most importantly, have the buy-in and support of those communities.  Particularly in the context of the significant investment of public funds by Government – over $1 billion – there is therefore also a very real public interest in ensuring that such programs are effective.

Thirdly, I would ensure the establishment of an effective, adequately resourced national Indigenous representative body.  Significant steps have been taken in the last 12 months towards the establishment of such a body.  However, it is noteworthy that the Northern Territory Intervention measures were designed and implemented – and continue to operate – at a time when there has been no representative body for Indigenous Australians.  A representative body would enable Indigenous Australians to participate meaningfully in policy formulation and public debate about matters that directly affect them.

Fourthly, I would move to amend the ‘race power’ contained in the Australian Constitution, which has been interpreted by the High Court of Australia to enable measures to be passed to the detriment of Indigenous Australians.  The human rights issues which have resulted from the Northern Territory Intervention are evidence that an entrenched guarantee against racial discrimination that would override the law of the Commonwealth is required.

Finally, I would ensure that all of the proposals above were further developed and implemented in close, ongoing and respectful engagement with Indigenous Australians, consistent with their fundamental right of self-determination.

Ben Schokman is a Senior Lawyer with the Human Rights Law Resource Centre