A United Nations committee is adjudicating on a claim by 20 Indigenous Australians that the federal government’s intervention in the Northern Territory is racist. What will the Australian Government do when the UN finds the claim proven…as it most likely will? Professor George Williams comments.
What if UN decides Australia is racist?
By Professor George Williams*
There is little in the eyes of the international community more serious than a nation being found to have racist laws and policies. This was the claim made in February 2008 against Australia by 20 Aboriginal people.
Their complaint to the UN Committee on the Elimination of Racial Discrimination about the Northern Territory intervention has a strong prospect of success. If this proves correct, enormous pressure will be put on the Rudd Government to reform the intervention.
The complaint does not pull punches, describing the intervention as a ‘flagrant breach’ of Australia’s obligations under the Convention for the Elimination of All Forms of Racial Discrimination. While its authors acknowledge the legitimate aim of improving the well-being of Aboriginal people in the NT, they argue that Australian law breaches the convention on two grounds. Firstly, the law uses ‘punitive and racist measures’ that ‘have led to serious, massive and persistent discrimination’. Secondly, Australia has breached the convention by suspending the protections found in the Racial Discrimination Act.
The Howard government’s intervention laws were passed by the federal parliament in August 2007 to exclude the Racial Discrimination Act. The reason for this was clear. Parts of the intervention are racially discriminatory. For example, it quarantines 50% of welfare income to be used for food and other essentials only for people living in Aboriginal communities. There is no exception even for people who can demonstrate that they are responsible spenders of their income.
This and other problems are well known. After one year, the NT Emergency Response Review Board conducted an independent inquiry. Its October 2008 report found that the situation in the NT was a ‘national emergency’ and that the intervention should continue. However, it also found that the intervention needed to be ‘recalibrated to the principle of racial equality’.
Against this background, it will be no surprise if the UN Committee finds that Australia must take immediate action to end racial discrimination in the NT and restore the Racial Discrimination Act. The Committee need only follow the lead of the Australian Human Rights Commission, which has found that the intervention contains a number of provisions that are racially discriminatory and removes protections against that discrimination.
The Rudd government has acknowledged these problems. It has said that it will revise aspects of the intervention such as income quarantining and will restore the Racial Discrimination Act. The government has, however, been slow to act, with no sign yet of the laws needed to bring these changes about. Even when it does act, it may not go far enough to meet Australia’s international obligations. The complaint to the UN Committee argues that almost every significant measure of the intervention is racially discriminatory. If upheld, this will require far greater change than is currently proposed.
If the complaint succeeds, the government will be under pressure to rebuild the whole intervention. The starting point must be that the poverty, sexual abuse and other problems that afflict Aboriginal people and their children in the NT cannot be remedied by laws and programs that are themselves racially discriminatory. Australia accepted this principle when it signed the Convention for the Elimination of All Forms of Racial Discrimination. It was too easily forgotten in the heat of the moment when the intervention laws were rushed through parliament.
A loss in the UN committee will pose a major question of how much weight the Rudd government gives to Australia’s international obligations. The same question was asked in 2000 of the Howard government after the same committee found that the NT’s regime for mandatory sentencing had a ‘racially discriminatory impact’. That regime led to an alarming rise in the imprisonment rates of Indigenous people. One 21-year-old Aboriginal man was sentenced to a year in prison for the theft of $23 worth of cordial and biscuits, while a 15-year-old Aboriginal boy committed suicide after serving 24 of 28 days for stealing Texta colours and a can of spray paint.
Prime Minister John Howard rejected the international pressure for change, saying on Perth radio that ‘we are mature enough to make decisions on these matters ourselves, full stop’. NT Chief Minister and leader of the Country Liberal Party, Denis Burke, took this one step further in stating ‘This is designed to shame Australians. And to my mind [this is] an opportunity for Australians to tell them to bugger off.’
The UN committee is likely to find that the intervention is racially discriminatory. If it does, it can only be hoped that the Rudd government takes a different tack to its predecessor.
It will be bad enough for Australia to be again caught discriminating against its Aboriginal peoples. It will be even worse if, knowing this, we fail to remedy the situation.
George Williams is the Anthony Mason Professor of law at the University of New South Wales, a visiting Professor at ANU Law School, and a member of CLA. This article appeared first in the Sydney Morning Herald.