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35. As part of its commitment to closing the gap on indigenous disadvantage, COAG
has established the following benchmarks in the area of education: within five years,
provide all indigenous 4 year olds in remote indigenous communities with access to a good
quality early childhood education; within a decade, halve the gap in reading, writing, and
numeracy achievements among indigenous children; and by 2020 at least halve the gap for
indigenous retention through grade 12.
36. In addition, the Special Rapporteur recognizes Government efforts to include a
cross-cultural perspective in the national curriculum. Nevertheless, sources consulted by the
Special Rapporteur identified problems with the curriculum currently used and the day-today
operations of schools across Australia that are attended by indigenous children, as well
as a lack of adequately trained teachers for bilingual and culturally appropriate education
and a lack of resources to sustain such programmes. There are very few examples of
Aboriginal children being taught in their own languages. Of particular concern is the
information the Special Rapporteur received from numerous sources that, as of January
2009, the Northern Territory government requires that school activities be conducted in
English for the first four hours of each school day. The Special Rapporteur is aware of the
value of and need to improve literacy in the national language, but emphasizes that the
Northern Territory government must make greater effort to respect cultural diversity and
find a better approach to addressing the challenges of bilingual education.
37. The remote character of many indigenous communities is another major challenge
for the provision of education, which is well-documented and analysed in the 2008 Social
Justice Report.14 Providing schooling to children in remote areas by placing them in
boarding schools away from their communities raises further complex considerations. The
inadequacy of current educational opportunities has resulted in indigenous children in
remote areas exhibiting low rates of attendance, achievement, and retention.15 Recognizing
the complexities in delivering services, including education services, to remote areas, the
Special Rapporteur urges the Government to give adequate focus and priority to this issue,
as discussed in more detail in part VI (B).
D. Employment and income
38. COAG has identified the target of halving the gap in employment outcomes between
indigenous and non-indigenous Australians within a decade. In furtherance of this goal, the
National Partnership on Indigenous Economic Participation seeks to improve opportunities
for indigenous people to engage in private and public sector jobs through a number of
programmes.
39. The Special Rapporteur commends this initiative. However, he is concerned that
recent welfare reform efforts have had the effect of abruptly cutting off income and jobs
upon which indigenous individuals have relied, leaving them with no adequate alternatives
for income generation. For example, as a result of welfare reform initiatives, the Yarrabah
community in Queensland reported losing AUD 7 million in assistance previously received
under the Community Development Employment Projects programme, although according
to the Government, this funding merely shifted to other employment service and job
14 Aboriginal and Torres Strait Islander Social Justice Commissioner (Sydney, Human Rights and Equal
Opportunity Commission, 2009), report No. 1/2009, chap. 3.
15 Overcoming Indigenous Disadvantage, chap. 6.
A/HRC/15/37/Add.4
12 GE.10-13887
assistance programmes, such as Job Services Australia and the Indigenous Employment
Programme, and has not been eliminated altogether.
40. The Special Rapporteur would also like to emphasize that increasing indigenous
peoples’ control over their lands and resources, self-determination and self-government is
an essential component of advancing economic development and employment
opportunities.
E. Housing
41. In 2006, the former Special Rapporteur on adequate housing as a component of the
right to an adequate standard of living, and on the right to non-discrimination in this context
visited Australia and noted that indigenous peoples face a “severe housing crisis, evidenced
by the lack of affordable and culturally appropriate housing, the lack of appropriate support
services, the significant levels of poverty and the underlying discrimination”.16 Such
problems persist and contribute to overcrowded living conditions and homelessness in
indigenous communities at rates exceeding those of the mainstream population.
42. Primarily through its National Partnership on Remote Indigenous Housing, the
Closing the Gap campaign promises to address the key issues of overcrowding,
homelessness, poor housing conditions and severe housing shortages. However, the new
policy envisages the indigenous communities handing over control of their community
lands to the Government for housing to be provided and managed. Long-term leases,
arranged with indigenous landowners or traditional owners, are becoming a precondition
for delivering housing and upgrade services. These leases grant the Government access to
and control over the indigenous land for a term of at least 40 years. Tenancy management is
to be undertaken by state and territory housing authorities, thus removing tenancy
management from indigenous control. The Government argues that this leasing
arrangement ensures clear ownership of fixed assets and therefore responsibility to maintain
those assets for the benefit of residents. It further asserts that lease agreements are
voluntary, although it will not provide housing without an agreement.
43. Almost everywhere, the Special Rapporteur heard concerns about the Government’s
approach. Numerous indigenous people, especially community leaders, expressed that they
felt pressured or even “bribed” into handing over ownership and control of their lands to the
Government in exchange for much-needed housing services. The Special Rapporteur heard
these concerns even in communities that have negotiated leases with the Government, such
as in the Groote Eylandt communities of Angurugu, Umbakumba and Milyakburra. In
addition, the Special Rapporteur heard concerns that housing construction and upgrade
services have, by and large, been delivered in a manner that bypasses locally run Aboriginal
construction companies, missing the opportunity to provide jobs and training to indigenous
peoples for the delivery of these services, although it is worth noting that under the
National Partnership Agreement on Remote Indigenous Housing, 20 per cent of “local
employment” is required for all new housing construction.
44. The Special Rapporteur is concerned that this leasing scheme, in conjunction with
other initiatives such as the 2006 amendments to the Aboriginal Land Rights Act (Northern
Territory) 1976 (referenced in paragraph 22), promotes individual land tenure to the
detriment of traditional indigenous communal land tenure and diminishes indigenous
control over lands that traditionally have been held collectively. In this regard, the
16 A/HRC/4/18/Add.2, para 80.
A/HRC/15/37/Add.4
GE.10-13887 13
individualization of lands could implicate threats to indigenous peoples’ cultural integrity
and way of life, in addition to affronting their property rights.
F. Women, children and families
45. Aboriginal and Torres Strait Islander women and children continue to suffer
distressingly high rates of violence and poor living conditions. The Australian Bureau of
Statistics found that 18.3 per cent of indigenous women experienced physical or threatened
abuse in a 12-month period, compared with 7 per cent of non-indigenous women. Further,
according to the Overcoming Indigenous Disadvantage report, 41 out of every 1,000
indigenous children were under care and protection orders, compared to 5.3 per 1,000 nonindigenous
children.17 Concern was expressed that some children under these care and
protection orders are placed in environments outside of their communities and cultures.
46. Additionally, the findings of the 2007 report Ampe Akelyernemane Meke Mekarle
“Little Children are Sacred”, issued by the Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse and commissioned by the government of the
Northern Territory, and other studies, such as the National Aboriginal and Torres Strait
Islander Social Survey, indicate high incidence of child sexual abuse in Aboriginal
communities. These reports provide the backdrop for many of the policy initiatives of the
Government of Australia related to indigenous peoples, most notably the aggressive
measures under the Northern Territory National Emergency Response (NTER) programme.
47. While specifically oriented towards the eradication of child sexual abuse in the
Northern Territory, the NTER in fact addresses a range of economic and social issues that
confront the Northern Territory. The Special Rapporteur acknowledges the importance of
many parts of the NTER programme; however, he also notes with concern that many of its
aspects are characterized by extreme measures that single out indigenous peoples and
communities for separate treatment, a strategy that involved the Government’s decision in
2007 to suspend the protections of the Racial Discrimination Act in relation to NTER
provisions. The NTER measures that are of particular concern to the Special Rapporteur are
addressed further in appendix B to this report.
48. A number of mainstream programmes are in place to address the key issues of
protection and safety both in the Northern Territory and elsewhere. Notably, the Family
Violence Prevention Legal Services programme provides community-controlled justice,
advisory and referral centres for victims of family violence. In addition, the National
Council to Reduce Violence Against Women and their Children, established in 2008,
operates at a national level to design and implement the National Plan to Reduce Violence
Against Women and their Children. The Commonwealth Government also administers the
Indigenous Parenting Support Service programme and the Indigenous Women’s
programme.
49. The Special Rapporteur commends the Government for attaching urgency and
priority to the issue of protecting vulnerable groups and abating violence against women
and children. However, despite the NTER initiative and other Government responses,
violence and other problems persist. In this connection, the Special Rapporteur heard
reports of a lack of access by Aboriginal and Torres Strait Islander women, especially
women in remote communities, to legal assistance. In addition, the Special Rapporteur
heard expressions of concern that government authorities fail to engage in a real dialogue
with Aboriginal and Torres Strait Islander women to formulate practical and culturally
17 Overcoming Indigenous Disadvantage, p. 260.
A/HRC/15/37/Add.4
14 GE.10-13887
appropriate strategies to protect women and children at risk. The Special Rapporteur also
received information alleging that mainstream domestic violence and child protection
models are inconsistent with Aboriginal and Torres Strait Islander cultures.
G. Administration of justice
50. There are alarmingly high levels of incarceration of Aboriginal and Torres Strait
Islander persons, including women and minors. According to figures reported by the
Government, indigenous prisoners represent 24 per cent of the total prisoner population and
the average rate of indigenous imprisonment is 13 times higher than the non-indigenous
rate.18 Disturbingly, indigenous youth comprise 54 per cent of persons in juvenile detention
and are 21 times more likely than non-indigenous juveniles to be detained.19 Other major
concerns that were brought to the Special Rapporteur’s attention are limited access to
justice in remote areas and inadequate provision of culturally appropriate justice services,
including translation services for criminal defendants.
51. A high rate of deaths in custody was another concern expressed to the Special
Rapporteur, an issue that is explored in the report of the Royal Commission into Aboriginal
Deaths in Custody, completed in 1991, and exemplified by the disturbing case in Western
Australia of the death of Ian Ward while being transported in police custody. The
Government affirms that it has taken steps to address the concerns raised in that report,
although the Special Rapporteur notes information that many of the recommendations of
the Royal Commission have still not been fully and adequately addressed.
52. Though criminal justice matters are primarily the responsibility of Australia’s state
and territory governments, there have been some noteworthy efforts funded by the
Commonwealth to provide legal services to indigenous peoples, including the Aboriginal
and Torres Strait Islander Legal Services and the delivery of indigenous-specific legal
services in 116 permanent locations. Further, the Government is developing some new
initiatives within the framework of the Closing the Gap campaign to reduce the
overrepresentation of Aboriginals and Torres Strait Islanders in the criminal justice system.
Clearly, though given the extremity of this situation, much work remains to be done.
VI. Cross-cutting concerns regarding government programmes
A. Self-determination
53. The Special Rapporteur acknowledges the significant commitment of the
Government to advancing the rights of Aboriginal and Torres Strait Islander peoples and to
shrink the comparative disadvantage that indigenous people suffer vis-à-vis non-indigenous
people across the range of socio-economic indicators. However, there is a need to
incorporate into government programmes a more integrated approach to addressing
indigenous disadvantage across the country, one that secures for indigenous peoples not just
social and economic well-being, but in doing so also advances their self-determination and
their rights to maintain their distinct cultural identities, languages and connections with
their traditional lands.
18 CCPR/C/AUS/Q/5/Add.1, para. 27.
19 Ibid.
A/HRC/15/37/Add.4
GE.10-13887 15
54. The right to self-determination, which is affirmed for indigenous peoples in article 3
of the Declaration on the Rights of Indigenous Peoples, is a foundational right, without
which indigenous peoples’ other human rights, both collective and individual, cannot be
fully enjoyed. Enhancing indigenous self-determination is also conducive to successful
practical outcomes. As noted in the Overcoming Indigenous Disadvantage Report, “when
make their own decisions about what approaches to take and what
resources to develop, they consistently out-perform decision-makers”.20
55. Although the Government recognizes the importance of collaboration with
indigenous peoples, there is a continuing need to empower indigenous peoples to take
control of their own affairs in all aspects of their lives. The Government should seek to
decidedly include in its initiatives the goal of advancing indigenous self-determination, in
particular by encouraging indigenous self-governance at the local level, ensuring
indigenous participation in the design, delivery and monitoring of programmes, and
developing culturally-appropriate programmes that incorporate and build on indigenous
peoples’ own initiatives.
1. Local self-governance
56. Of concern to the Special Rapporteur is the apparent increased centralization of
governance institutions in several states and the Northern Territory, at the expense of local,
indigenous-run governance institutions. Most notably, starting in July 2008, the Northern
Territory government consolidated 73 community-based governance councils into 9 larger
shire governments. Given that the transition to the shire system in the Northern Territory is
fairly recent, its impacts are not yet completely known. However, the Special Rapporteur
received information related to several concerns, including: a potential loss of
representation and control at the local level; the employment of shire staff without
knowledge of local issues; the channelling of formerly community-based programmes and
services through shires; the location of shire offices in urban centres; and the
implementation of an electoral system that may result in communities with low populations
being either under or unrepresented in the shire political structures.
57. The Special Rapporteur was particularly disturbed by situations in which the
Government has revoked self-governance powers of Aboriginal people when communities
have displayed shortcomings in managing their own affairs. The clearest example of this
practice is the NTER, discussed in appendix B to this report. In addition, the Special
Rapporteur visited the Swan Valley Nyungah community in Perth, Western Australia,
where, because of supposed rampant alcoholism and abusive behaviour, including among
the community’s principal leadership, the state of Western Australia legislatively revoked
the management authority of the community, and placed it with the Aboriginal Affairs
Planning Authority, a state entity, and evicted the community from its location.21 According
to reports received by the Special Rapporteur, some of the community’s women and
children, astoundingly, are now homeless and living on the streets while their community
remains under lock and key, although the Government insists that all women and children
were moved into state government housing. While emphasizing the need to take measures
to address the extreme social problems faced by the Swan Valley community, the Special
Rapporteur considers that the expulsion of all community members from their homes and
community and revoking the community’s decision-making authority, is a troubling and
ineffective approach to resolving the concerns, and is at odds with international standards.
20 Overcoming Indigenous Disadvantage, p. 653, citing Harvard Project on American Indian Economic
Development 2003–04 (referring to the case of indigenous peoples in the United States of America).
21 See Reserves (Reserve 43131) Act 2003.
A/HRC/15/37/Add.4
16 GE.10-13887
58. Another example of this trend of undermining indigenous decision-making and
governance structures is found in the Government leasing scheme, as well as the 2006
amendments to the Aboriginal Land Rights Act, discussed in paragraphs 22 and 44, which
also remove management and oversight authority from indigenous leadership structures.
The Government has stated that, in the past, traditional owners of indigenous land were
rarely consulted in investment and administrative decisions, and that the Government
leasing system is intended to address this failure by defining responsibilities and standards
for housing maintenance, in consultation with traditional landowners and others. The
Special Rapporteur acknowledges that this is a worthy objective, but believes that this
objective is achievable without restricting the rights of the indigenous communities to
decision-making about land tenure through a scheme by which they are pressed to lease
their land to the Government for a minimum 40-year period.
59. The Special Rapporteur notes that replacing or undermining indigenous decisionmaking
structures feeds into a mistaken conception of indigenous peoples as responsible for
their present disadvantaged state and unable to change. At the same time, the Special
Rapporteur echoes the statements he heard from indigenous leaders about the need for
indigenous peoples themselves to continue to strengthen their own organizational and local
governance capacity, in order to meet the challenges faced by their communities and, in this
connection, notes the importance of restoring or building strong and healthy relationships
within families and communities.
2. Participation in the design, delivery and oversight of programmes
60. Also required is that Aboriginal and Torres Strait Islander peoples participate
effectively in the design, delivery, and oversight of development programmes on an
ongoing basis. As affirmed by the Declaration, “indigenous peoples have the right to
determine and develop priorities and strategies for exercising their right to development. In
particular, indigenous peoples have the right to be actively involved in developing and
determining health, housing and other economic and social programmes affecting them and,
as far as possible, to administer such programmes through their own institutions” (art. 23).
61. Clearly, an important overarching aspect of the Closing the Gap campaign is the
Government’s expressed commitment to redefine its relationship with indigenous peoples
through close collaboration and partnership within a context of mutual respect and
understanding. However, despite this, it is hard to ignore the fact that indigenous peoples
have not been included as a party to any of the national inter-governmental partnership
agreements developed under the Closing the Gap initiative and no national consultations
took place in relation to the development of these agreements. However, the Government
notes that certain partnership provisions, specifically under the Remote Service Delivery
National Partnership Agreement, discussed in paragraph 67, are designed to boost
indigenous engagement and participation in programme activities.
3. The need to support and build on indigenous-controlled initiatives
62. Developing programmes that are effective and culturally-appropriate requires
innovation and flexibility, and is not free from challenges of all kinds. As a preliminary
matter, it requires consultation with the affected indigenous groups about community needs
and programme design, as well as openness to varied models. In particular, it is essential to
provide continued support to programmes, especially those designed by indigenous people
themselves that have already demonstrated achievements. The Special Rapporteur observed
numerous successful indigenous-controlled programmes already in place to address issues
of alcoholism, domestic violence, health, education and other areas of concern, in ways that
are culturally appropriate and adapted to local needs.
A/HRC/15/37/Add.4
GE.10-13887 17
63. For example, in the health sector, the National Aboriginal Community Controlled
Health Organization (NACCHO) represents over 140 Aboriginal health services across the
country. A central objective of the organization is to deliver holistic and culturally
appropriate health and health-related services to the Aboriginal community. NACCHO and
its partners have achieved many noteworthy successes. The vast majority of NACCHO
funding is through the Commonwealth Department of Health and Ageing, although its
operations require supplemental funds which come from non-governmental sources.
64. In another example, the Mount Theo programme was created in 1993 to address
chronic petroleum-sniffing in Yuendumu, Northern Territory. It is comprised of culturallybased
youth programmes, including its core programme where at-risk youth are sent to the
Mt. Theo Outstation, located 160 km from Yuendumu, where they are cared for by
community elders and provided cultural healing and empowerment, for at least one month.
The programme has achieved significant success, and Yuendumu is now, according to
community leaders, a community that is free of petroleum-sniffing. The Little Children are
Sacred report (p. 146) commended the Mt. Theo programme and identified it as a potential
model to address other problems facing indigenous communities, including the problem of
child sexual abuse.
65. The Overcoming Indigenous Disadvantage report, the annual Social Justice reports
and other sources document numerous other examples of indigenous good practices in a
variety of areas. Supporting and promoting precisely these types of programmes furthers
the rights of indigenous peoples with regards to self-determination, consultation and
participation, and cultural integrity, while at the same time serving as a practical strategy
for addressing indigenous disadvantage. The Special Rapporteur encourages the
Government to pursue such an approach across its various programme areas.
B. Remote service delivery and homelands
66. Twenty-four per cent of indigenous Australians live in remote and very remote
Australia compared to 2 per cent of non-indigenous Australians.22 While there are
complexities involved in delivering services such as health, schooling, employment and
housing to remote areas, special efforts are required to ensure that indigenous peoples
living in these areas, including homelands (also called outstations), can enjoy the same
social and economic rights as other segments of the Australian population, without having
to sacrifice important aspects of their cultures and ways of life.
67. COAG has entered into the Remote Service Delivery National Partnership
Agreement to ensure that indigenous people living in selected remote communities receive
services. The national partnership has identified 26 priority locations in remote areas with
concentrated indigenous populations across several states to be expanded to additional
locations in the future, which were identified according to a set of “practical criteria”
including significant concentration of population; anticipated demographic trends and
pressures; and the potential for economic development and employment. In addition, the
Northern Territory’s A Working Future – A New Deal for the Remote Territory, released on
20 May 2009, outlines its proposal to develop 20 “Territory Growth Towns” as services
centres for surrounding homelands.
68. This “hub approach” to service delivery has caused concern among many indigenous
people, who fear that communities that do not fall within one of these key priority or
22 National Aboriginal and Torres Strait Islander Survey, 2008; Australian Bureau of Statistics,
Population Characteristics, Aboriginal and Torres Strait Islander Australians, 2006.
A/HRC/15/37/Add.4
18 GE.10-13887
growth areas, in particular sparsely-populated homeland communities, will be forced to
move to larger communities to receive basic services. In fact, the Northern Territory
government states that it “will not financially support the establishment of new outstations
and homelands” and that “government services to outstations/homelands will in most cases
involve a form of remote delivery, based from the closest or most accessible hub town”.23
This policy further provides that residents of homelands are expected to contribute
financially to the installation of basic services, such as water, electricity and sanitation.
69. For its part, the Commonwealth Government has communicated to the Special
Rapporteur that it does not intend to abandon homelands or to relocate residents, that it is
committed to maintaining current levels of funding for the maintenance of occupied
outstations and for key government services and that it has committed AUD 60 million over
three years to fund essential services to homelands. Nevertheless, members of homeland
communities visited by the Special Rapporteur and other sources indicated weakening
support from the Commonwealth Government for the homelands in practice.
70. The Special Rapporteur observed the profound connection that many Aboriginal
people in Australia have to their homelands, many of which began to be repopulated in the
1970s when elders took their people back to ancestral lands from larger communities run by
missions, and the importance of these lands to the lives and culture of Australia’s
Aboriginal people. Further, homelands are widely understood to have lower levels of social
problems, such as domestic violence and substance abuse, than more populated
communities. According to reports, the health of indigenous people living on homelands is
significantly better than of those living in larger communities, with the death rate among
indigenous peoples living in homelands being 40 to 50 per cent lower than the Northern
Territory average for indigenous adults.24 Homelands are also used effectively as part of
substance abuse and other programmes for at-risk Aboriginal youth living in more
populated or urban centres, such as the Mt. Theo programme discussed above.
VII. Conclusions and recommendations
Overarching conclusions
71. The Government of Australia is to be commended for the advancements made
in addressing the human rights of Aboriginal and Torres Strait Islander peoples over
recent years and for enacting reforms to redress historical negative policies and
actions. The Special Rapporteur particularly notes the many instances of commitment
made by the Government to reconcile with indigenous peoples, including the National
Apology of 2008, and its support for the Declaration on the Rights of Indigenous
Peoples. He is also pleased to note the important goal set to eliminate significant social
and economic disadvantages faced by the Aboriginal and Torres Strait Islander
peoples by the year 2020 and the resources committed thereto by the Government.
The Special Rapporteur welcomes the numerous policies, programmes and studies in
place to address indigenous issues, many of which he was unable to detail in the
present report, as well as the significant funding the Government has dedicated for
the purpose.
23 Northern Territory Government, Headline Policy on Homelands/Outstations (May 2009).
24 K.G. Rowley et al., “Lower than expected morbidity and mortality for an Australian Aboriginal
population: 10 year follow up in a decentralized community”, Medical Journal of Australia, vol. 188,
No. 5 (2008), pp. 283–287.
A/HRC/15/37/Add.4
GE.10-13887 19
72. Despite the Government’s attention to indigenous issues, there is a continued
need to develop new initiatives and reform existing ones, in consultation and in real
partnership with indigenous peoples, to conform to international standards requiring
genuine respect for cultural integrity and self-determination. Ownership and control
of their lands and territories continues to be denied to many indigenous communities
in Australia. Indigenous institutions and community governance structures also are
subject to high levels of control by the State, and are often devoid of genuine
opportunity to generate social, cultural and economic development. Accusations of
past shortcomings of indigenous self-governance unfairly assign blame to indigenous
peoples and at the same time ignore Government failures in this regard.
73. The Special Rapporteur is concerned about ongoing effects of historical
patterns of racism within Australian society and that their negative consequences
continue to severely undermine the dignity of Aboriginal and Torres Strait Islander
peoples and individuals. Additional efforts, beyond the recent laudable efforts of the
Government to advance reconciliation and reset the relationship with indigenous
peoples is needed to address negative perceptions within society and to generate
greater confidence and self-respect amongst the indigenous population, to create a
healthy environment conducive to the enjoyment of rights and freedoms.
Legal and policy framework
74. The Commonwealth and state governments should review all legislation,
policies, and programmes that affect Aboriginal and Torres Strait Islanders, in light
of the Declaration on the Rights of Indigenous Peoples.
75. The Government should pursue constitutional or other effective legal
recognition and protection of the rights of Aboriginal and Torres Strait Islander
peoples in a manner providing long-term security for these rights.
76. In consultation with the Aboriginal and Torres Strait Islander peoples, the
Government should look to ratify the International Labour Organization Convention
concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169).
77. The Commonwealth Government should ensure that state, territory and local
governments are aware of their obligations to promote and protect the human rights
of indigenous peoples. The Government should promote a consistent approach to
these rights across all levels of government authority.
78. The Special Rapporteur considers the position of Aboriginal and Torres Strait
Islander Social Justice Commissioner within the Australian Human Rights
Commission to be an exceptional model for advancing the recognition and protection
of rights of indigenous peoples. The Commissioner’s reports should be given greater
attention in government administration to promote a higher level of accountability
and sensitivity to human rights commitments.
79. All efforts should be made to increase the number of indigenous peoples’
representatives in legislative, executive, and judicial institutions at all levels. The
Special Rapporteur welcomes the Government’s support in establishing a national
indigenous representative body and emphasizes the importance of indigenous
participation in the ongoing design, development and functioning of this mechanism.
80. The Council of Australian Governments should look to integrate the proposed
national representative indigenous body into its structure for decision-making and
design of strategic initiatives, for the purpose of coordinating policies and strategies
relating to Aboriginal and Torres Strait Islander peoples.
A/HRC/15/37/Add.4
20 GE.10-13887
81. The Commonwealth and state governments should, in cooperation with the
indigenous peoples concerned, enhance efforts to strengthen Aboriginal and Torres
Strait Islander peoples’ own governance structures, and increase the capacity of
indigenous leadership at all levels.
82. Any government decision that has the effect of limiting or removing indigenous
decision-making authority should be reconsidered and evaluated in light of
Australia’s human rights obligations.
83. The Government should collaborate with the Australian Human Rights
Commission to ensure that adequate remedies, including compensation, are provided
as a matter of urgency to the Stolen Generation victims.
Lands, territories and resources
84. The Special Rapporteur recognizes the efforts of the Commonwealth and state
governments in recent decades to advance the rights of Aboriginal and Torres Strait
Islander peoples to their lands, territories and resources. Continued efforts should be
made to uphold the rights of indigenous peoples over their lands and resources and
guarantee for these peoples a sustainable basis for economic, social and cultural
development.
85. The Commonwealth and state governments should ensure that all laws and
administrative practices related to lands and natural resources align with
international standards concerning indigenous rights to lands, territories and
resources. To this end, the Government should establish a mechanism to undertake a
comprehensive review at the national level of all such laws and related institutions and
procedures, giving due attention to the relevant reports of the Australian Human
Rights Commission and the Committee on the Elimination of All Forms of Racial
Discrimination.
86. Legislative and administrative mechanisms that allow for the extraction of
natural resources from indigenous territories should conform to relevant
international standards, including those requiring adequate consultations with the
affected indigenous communities, mitigation measures, compensation and benefitsharing.
87. The Government should increase the availability and effectiveness of technical
and financial resources to support indigenous representation and participation in the
procedures to identify and protect indigenous peoples’ native title.
88. The Commonwealth and state governments should revise existing legislation
that vests ultimate decision-making authority over Aboriginal and Torres Strait
Islander heritage sites or objects in government entities, to ensure indigenous
participation in decision-making and full respect for indigenous rights in relation to
cultural heritage. In this connection, the Special Rapporteur welcomes information
from the Government that it has proposed national reforms to improve indigenous
participation in decision-making over traditional sites and objects.
89. The Queensland state government should review and revise as necessary the
Wild Rivers Act of 2005 to ensure its conformity with international standards
concerning the rights of the traditional owners to control and manage their lands,
territories and resources. The review of the legislation should engage the traditional
owners to achieve an agreed arrangement.
90. The Commonwealth Government and state governments should embrace a
long-term vision for social and economic development of homeland communities,
especially bearing in mind the practical, social and cultural benefits that the
A/HRC/15/37/Add.4
GE.10-13887 21
homelands provide to Aboriginal and Torres Strait Islander peoples, as well as to the
society at large.
Overcoming indigenous disadvantage
91. The Government should be commended for efforts to address the socioeconomic
disadvantage of Aboriginal and Torres Strait Islander peoples. As part of
this process, the Government should seek to include in its initiatives the goal of
advancing indigenous self-determination, in particular by encouraging indigenous
self-governance at the local level, ensuring indigenous participation in the design,
delivery and monitoring of programmes and developing culturally appropriate
programmes that incorporate or build on indigenous peoples’ own initiatives.
92. The Aboriginal and Torres Strait Islander peoples should be fully consulted
about all initiatives being developed to overcome indigenous disadvantage, including
the national partnership agreements, at the earliest stages of the design of those
initiatives. In particular, adequate options and alternatives for socio-economic
development and violence prevention programmes should be developed in partnership
with affected indigenous communities.
93. Relevant government agencies should facilitate greater decision-making power
by indigenous peoples over the design and delivery of government services in their
communities. The Government should support, both logistically and financially,
indigenous programmes already in place that have demonstrated success and should
also support the development of new indigenous service-delivery programmes. In this
regard, the Government should look to establish a national focal point for skills
training for the purpose of increasing the capacity of indigenous individuals and
communities to be self-sufficient and to manage their own affairs, including their
social and economic development.
Health
94. While the Government has taken important steps to improve indigenous health,
it should strengthen efforts to ensure that indigenous Australians have equal access to
primary health care and that the basic health needs of indigenous communities are
met, especially in remote areas. Every effort should be made to enhance indigenous
peoples’ participation in the formation of health policy and delivery of services. The
Government should ensure and strengthen support for health-care initiatives by
indigenous communities and organizations as a matter of priority. All medical
professionals should be provided with comprehensive, culturally appropriate medical
training, and health services in the language of the community should always be
available.
Education
95. The Special Rapporteur recognizes the efforts of the Government to close the
gap of indigenous disadvantage in the area of education. However, indigenous systems
of teaching, cross-cultural curricula and bilingual programming should be further
incorporated into the education of indigenous children and youth. In addition,
indigenous communities and their authorities should have greater participation in
educational programming.
96. Equal educational opportunities should be provided in remote areas, including
Aboriginal homelands, in accordance with the recommendations contained in the 2008
Social Justice Report.
A/HRC/15/37/Add.4
22 GE.10-13887
97. The Northern Territory government should reform its policy that school
activities be conducted in English only for the first four hours of each school day and
provide bilingual and culturally appropriate education to Aboriginal children.
Employment and income
98. In recent years, the Government has taken noteworthy steps to promote
economic development and employment opportunities for indigenous peoples. As part
of this process, the Government should work with Aboriginal and Torres Strait
Islanders and their organizations to determine goals and priorities for economic
development and should build the capacity of indigenous peoples to take control over
their own economic development.
99. The Government should ensure that adequate and, at a minimum, equivalent
funding and employment opportunities are in place before reforming or abolishing
existing welfare and social security programmes for Aboriginal and Torres Strait
Islander communities. Any reforms to welfare and social security programmes should
be carried out in consultation with indigenous peoples and their organizations.
Housing
100. The Special Rapporteur welcomes the Government’s long-term funding
commitments on housing and essential infrastructure. However, Government
initiatives to address the housing needs of indigenous peoples should avoid imposing
or promoting housing arrangements that would undermine indigenous peoples’
control over their lands. Housing programmes for the benefit of indigenous
communities, especially within indigenous territories, should be administered by
indigenous community-controlled institutions.
Women, children, and families
101. The Special Rapporteur commends the Government for attaching urgency and
priority to the issue of protecting vulnerable groups and abating violence against
women and children. However, efforts should be made to intensify consultations with
indigenous women at the community level to amplify and adapt services and solutions
to violence and other problems in their own communities. Special emphasis should be
placed on providing access to culturally appropriate, community-based legal and
support services to victims of domestic violence in remote areas.
Administration of justice
102. The Government should take immediate and concrete steps to address the fact
that there are a disproportionate number of Aboriginal and Torres Strait Islanders,
especially juveniles and women in custody.
103. The Government should take further action, in addition to action already
taken, to ensure the recommendations of the Royal Commission into Aboriginal
Deaths in Custody are being fully implemented.
104. Additional funds should be immediately provided to community-controlled
legal services to achieve, at a minimum, parity with mainstream legal aid services. In
particular, culturally appropriate legal services should be available to all Aboriginal
and Torres Strait Islander peoples, including those living in remote areas, and
interpreters should be guaranteed in criminal proceedings and, where necessary, for a
fair hearing in civil matters.
A/HRC/15/37/Add.4
GE.10-13887 23
105. Greater effort should be made to reform the civil and criminal justice system to
incorporate Aboriginal and Torres Strait Islander customary law and other juridical
systems, including community dispute resolution mechanisms.
Northern Territory Emergency Response
106. The legislative and administrative measures that relate to the Northern
Territory Emergency Response should be revised so that those measures are in
conformity with Australia’s international human rights obligations, and the Special
Rapporteur acknowledges the initiatives of the Government in this regard. Specific
observations and recommendations of the Special Rapporteur concerning the
initiative are contained in appendix B to this report.
To Aboriginal and Torres Strait Islander peoples and their organizations
107. Indigenous peoples should endeavour to strengthen their capacities to control
and manage their own affairs and to participate effectively in all decisions affecting
them, in a spirit of cooperation and partnership with government authorities at all
levels, and should make every effort to address any issues of social dysfunction within
their communities, including with respect to women and children.
A/HRC/15/37/Add.4
24 GE.10-13887
Appendix A
Details of the visit to Australia of the Special Rapporteur
from 17 to 28 August 2009
1. In Canberra, the Special Rapporteur held meetings with various members of the
Government, including the Minister for Families, Housing, Community Services and
Indigenous Affairs (FaHCSIA); the Attorney-General; the Minister for Indigenous Health,
Regional and Rural Health, and Regional Service Delivery; and representatives of the
Department of Education, Employment and Workplace Relations, the Department of Health
and Ageing, and the Department of Foreign Affairs and Trade. The Special Rapporteur also
met with various members of Parliament from diverse political parties. Additionally, he met
with the Aboriginal and Torres Strait Islander Social Justice Commissioner of the
Australian Human Rights Commission. In other parts of Australia, he met with
representatives of state governments, including in Western Australia, New South Wales,
and Queensland, and he also met with representatives of the Northern Territory
government.
2. The Special Rapporteur held consultations with indigenous individuals and groups,
including traditional owners, in Canberra, Adelaide, Perth, Alice Springs, Darwin, Cairns,
and Brisbane. Indigenous communities visited included those at Swan Valley (Western
Australia), La Perouse (New South Wales), Yarrabah (Queensland), Angurugu (Groote
Eylandt, Northern Territory), and Bagot, Yuendumu, Yirrkala, Gamgam and Raymangirr
(Northern Territory). The Special Rapporteur also consulted with representatives of the
Goldfields Land and Sea Council, Central Land Council, Anindiyakwa Land Council,
Northern Land Council, North Queensland Land Council, New South Wales Aboriginal
Land Council, and Cape York Land Council, as well as with the Torres Strait Regional
Authority, Yarrabah Shire Council, and Tangentyere Council.
3. The Special Rapporteur met with representatives of various indigenous peoples’
organizations and non-governmental organizations, including the Foundation for Aboriginal
and Islander Research Action (FAIRA), National Aboriginal Community Controlled Health
Organizations (NACCHO), Aboriginal Legal Rights Movement, National Native Title
Council, Aboriginal Legal Service of Western Australia, Coalition of Aboriginal Peak
Organizations (Sydney), Aboriginal Health and Medical Research Council, Ngaayatjarra
Pitjantjatjara Yankunytjatjara (NPY) Women’s Council, and several other community
organizations, church groups and indigenous support agencies at various locations during
the Special Rapporteur’s visit. In Perth, Western Australia, the Special Rapporteur met with
representatives of extractive industries and the Chamber of Minerals and Energy.
4. During the visit, Professor Anaya also participated in an academic symposium at the
Australian Institute of Aboriginal and Torres Strait Islander Studies in Canberra, and in a
conference of the United Nations Association on the United Nations Declaration on the
Rights of Indigenous Peoples in Brisbane.
5. The Special Rapporteur expresses his appreciation to members of the indigenous
peoples’ organizations of Australia for their indispensable support in organizing and
carrying out the visit, and to the Government of Australia, especially FaHCSIA, for the
support provided before, during, and after the visit. The Special Rapporteur would also like
to thank the United Nations Information Centre, for their support in the preparation and
execution of the visit, and the Support Project for the Special Rapporteur, at the University
of Arizona Indigenous Peoples Law and Policy Program, for its help in all aspects of
preparation of the visit and this report.
GE.10-13887 (E) 240610
Appendix B
Observations on the Northern Territory Emergency
Response in Australia
I. Introduction
1. This report presents the observations of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous people, James Anaya, on the
Northern Territory Emergency Response (“NTER”) programme in Australia, in advance of
reforms to the NTER that are anticipated in 2010. These observations follow an exchange
of information and communications with the Government of Australia, indigenous peoples,
and other stakeholders, including during the visit of the Special Rapporteur to Australia
between 17 and 28 August 2009, during which he visited, with the cooperation of the
Government, numerous Aboriginal communities in the Northern Territory, including Alice
Springs (as well as the Alice Springs town camps), the Bagot community in Darwin,
Yuendumu, Yirrkala, Angurugu, Gamgam, and Raymangirr. The observations included in
parts I–V of the report were submitted initially to the Government by a note of 2 December
2009. These parts of the report appear here with only minor changes that do not alter
substantively the observations previously submitted to the Government. Part VI of the
report includes a summary of the Government’s comments on the observations previously
submitted, comments the Special Rapporteur received on 16 February 2010; and part VII
provides final observations by the Special Rapporteur.
2. The NTER is a suite of legislation and related Government initiatives implemented
in 2007, which are aimed at addressing conditions faced by indigenous peoples in the
Northern Territory, but that contain several problematic aspects from an indigenous human
rights standpoint. Although many of the concerns related to the NTER are being addressed
in the Special Rapporteur’s main report on the situation of Aboriginal and Torres Strait
Islander peoples in Australia — including with respect to self-determination, selfgovernance,
participation in the design, delivery and oversight of programmes, and cultural
match — the Special Rapporteur would like to devote special attention to the matter of the
NTER, given its extraordinary nature and its deep implications for a range of fundamental
human rights, especially the right to non-discrimination, and for what it may represent for
the direction of indigenous-State relations in Australia.
3. The Government of Australia is correct to endeavour to ensure the security of
Aboriginal women and children as a matter of urgency and priority, and to improve the
well-being of Aboriginal people in the Northern Territory. Affirmative measures by the
Government to address the extreme disadvantage faced by indigenous peoples and issues of
safety for children and women are not only justified, but they are in fact required under
Australia’s international human rights obligations, including under the Convention on the
Rights of the Child and the Convention on the Elimination of All Forms of Discrimination
against Women. The NTER programme, however, in several key aspects limits the capacity
of indigenous individuals and communities to control or participate in decisions affecting
their own lives, property and cultural development, and it does so in a way that in effect
discriminates on the basis of race, thereby raising serious human rights concerns.
4. It is the opinion of the Special Rapporteur that, as currently configured and carried
out, provisions of the NTER are incompatible with Australia’s human rights obligations.
The present document sets forth the reasoning behind this assessment. In this regard, the
Special Rapporteur also takes note of the analysis contained in the 2007 Social Justice
A/HRC/15/37/Add.4
26 GE.10-13887
Report by the Aboriginal and Torres Strait Islander Social Justice Commissioner. The
Special Rapporteur understands that the NTER is currently undergoing a process of reform,
and he hopes that the following observations are helpful in revising NTER measures to
diminish or remove their discriminatory aspects and adequately take into account the rights
of indigenous peoples to self-determination and cultural integrity, in order to bring this
Government initiative in line with Australia’s international obligations.
II. Background
5. In 2006 the Northern Territory government established the Board of Inquiry into the
Protection of Aboriginal Children from Sexual Abuse, following a number of media reports
on the subject. The work of the board resulted in the report, Ampe Akelyernemane Meke
Mekarle – “Little Children are Sacred”, which drew national attention to the problems of
child abuse in the Northern Territory and made numerous specific recommendations for
addressing these issues, in relation to Government leadership; family and children’s
services; health crisis intervention; police; prosecutions and victim support; bail; offender
rehabilitation; prevention services; health care as prevention of abuse; family support
services; education; alcohol and substance abuse; community justice; employment;
housing; pornography; gambling; and cross-cultural practices.
6. Six days after the report was issued, on 21 June 2007, the Commonwealth
Government announced that there would be a “national emergency intervention” into
Aboriginal communities in the Northern Territory. On 17 August 2007, the Senate
approved a package of legislation, which was composed of the Northern Territory National
Emergency Response Act 2007 (“NTER Act”); the Social Security and Indigenous Affairs
and Other Legislation Amendment (Northern Territory National Emergency Response and
Other Measures) Act 2007; and the Families, Community Services and Indigenous Affairs
and Other Legislation Amendment Act 2007. Reportedly, the proposed legislation was
introduced by the Government in the House of Representatives on 6 August 2007, 47 days
after the announcement of the Government’s emergency plan and less than 24 hours after
drafts of the proposed legislation were shared with opposition parties and relevant
stakeholders. No consultations with indigenous peoples in the Northern Territory were
carried out prior to the adoption of the NTER.
7. While specifically oriented towards the eradication of child sexual abuse in a
number of indigenous communities and town camps within the Northern Territory, the
NTER in fact addresses a diverse cross section of economic and social issues that confront
the Northern Territory, including: law and order; family support; welfare reform and
employment; child and family health; education; housing and land reform; and coordination
for service delivery. The Northern Territory Emergency Response Taskforce was
instrumental in the design of the NTER, and the Department of Families, Housing,
Community Services and Indigenous Affairs has been the primary government agency
responsible for its implementation.
8. Since its adoption, the NTER measures have sparked widespread criticism both
domestically and internationally. Concerns were brought to the attention of the Government
of Australia by the previous Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Professor Rodolfo Stavenhagen. On 10
October 2007, Professor Stavenhagen sent a communication to the Government, together
with the Special Rapporteur on violence against women, its causes and consequences, and
the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia
and related intolerance. In the letter, the Special Rapporteurs commended the Australian
Government on the national emergency response to the “critical situation” and its expressed
A/HRC/15/37/Add.4
GE.10-13887 27
commitment to tackle the issue of sexual abuse of indigenous children in the Northern
Territory as a matter of urgency and priority.
9. At the same time however, the Special Rapporteurs expressed concern about the
numerous reports received alleging potential or actual contradiction between the new
legislation and international human rights standards that are binding upon Australia. In
particular, they expressed concern that the NTER measures “include restrictions on the
exercise of individual rights of the members of Aboriginal communities, including for
alcohol consumption or use of pornographic materials, as well as a number of limitations to
vested communal rights. It was alleged that these measures would arbitrarily limit the
exercise of their individual rights on an equal basis with other sectors of the national
population, thus amounting to discrimination prohibited under international and domestic
law/legislation”.1
10. In a letter of 22 November 2007 responding to the Special Rapporteurs, the
Australian Government stated that it considered that the measures of the NTER are
necessary to ensure that indigenous people in the Northern Territory, and in particular
indigenous women and children in relevant communities, are able to enjoy their social and
political rights on equal footing with other Australians. The Government added that the
NTER includes both exceptional and necessary measures to enable all, particularly women
and children, to live their lives free of violence and to enjoy the same rights to
development, education, health, property, social security and culture that are enjoyed by
other Australians. In this regard, the Government noted that many of the provisions are time
limited and designed to stabilize communities so that longer-term action can be taken.
11. United Nations treaty monitoring bodies have also expressed concern over the
NTER. The Human Rights Committee and the Committee on Economic, Social and
Cultural Rights have expressed concern that NTER measures are inconsistent with
Australia’s obligations under the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights, respectively, in
particular with respect to the right to non-discrimination.2 Specifically, the Human Rights
Committee recommended that Australia “redesign NTER measures in direct consultation
with the indigenous peoples concerned, in order to ensure that they are consistent with the
1995 Racial Discrimination Act and the [International Covenant on Civil and Political
Rights]”.3 Further, the NTER is currently being examined under the urgent action and early
warning procedure of the Committee on the Elimination of Racial Discrimination.
12. During his visit to Australia in August 2009, the Special Rapporteur heard
complaints about the NTER through multiple oral statements by numerous indigenous
individuals and leaders, not just in the Northern Territory but in all the places he visited in
Australia. He also received written petitions against the NTER signed by hundreds of
indigenous individuals. Several other indigenous individuals with whom the Special
Rapporteur met did speak in favour of the NTER in general and the need for Government
action to address the problems it targets.
1 A full summary of the communication sent and response received is available in the 2008
Communications Report of the Special Rapporteur (A/HRC/9/9/Add.1) (15 August 2008).
2 CCPR/C/AUS/CO/5, para. 14 (2009) and E/C.12/AUS/CO/4, para. 15 (2009).
3 CCPR/C/AUS/CO/5, para. 14 (2009).
A/HRC/15/37/Add.4
28 GE.10-13887
III. Incompatibility with international human rights standards
A. Racially discriminatory treatment of indigenous individuals and
communities
13. No doubt the NTER represents a substantial commitment of human and financial
resources on the part of the Government to overcome immediate problems and improve the
conditions of indigenous peoples, with particular attention to the needs of indigenous
women and children. The NTER, however, has an overtly interventionist architecture, with
measures that undermine indigenous self-determination, limit control over property, inhibit
cultural integrity and restrict individual autonomy. These measures include the following:
• Under Section 31 of the NTER Act, the Government compulsorily acquired fiveyear
leases to the lands of over 64 communities, in order to provide access to the
Government over these areas to improve housing. The leases give the
Commonwealth exclusive possession and quiet enjoyment of the land while the
lease is in force.4 Such five-year leases came into effect at the entry of force of the
NTER, without consultation or consent by the relevant Aboriginal associations.
Further, these leases were acquired without any compensation to the indigenous
owners.
• Under Section 47, the NTER Act allows the Government to take control of
Aboriginal town camps, which are held under leases in perpetuity by Aboriginal
associations under the Special Purposes Act and the Crown Lands Act of the
Northern Territory. The Commonwealth has the option of vesting in itself all rights,
titles and interests in town camps merely by giving notice, with a similar
consequence as the compulsory five-year leases.
• Section 51 suspends the “future act” provisions of the Native Title Act over areas
held under leases granted under sections 31 and 47, and in some other
circumstances. The future acts provisions allow indigenous communities to
negotiate arrangements with third parties, including natural resource extraction
companies, while native title claims are pending.
• Part 5 of the NTER Act vests broad powers in the Minister for Families, Housing,
Community Services and Indigenous Affairs to intervene in the operation of
representative Aboriginal community councils and associations, including with
respect to service delivery and management of funds. Section 67 grants the Minister
broad discretion to decide when to intervene in service delivery, including if “a
service is not being provided in the area to the satisfaction of the Minister”. Further,
the Minister can unilaterally determine how Commonwealth funding is to be used,
managed or secured, within declared “business management areas”; and any area
within the Northern Territory may be declared a business management area by the
Minister, through a legislative instrument. The Government placed in many
indigenous communities in the Northern Territory its own “Government Business
Managers” to oversee and coordinate the delivery of services.
• The NTER introduces a regime of compulsory income management that involves
severe limitations on the use of social security benefits received by indigenous
individuals. Fifty per cent of individuals’ income support and 100 per cent of
advances and lump sum payments made to them are diverted to an “income
4 Sect. 35 (1).
A/HRC/15/37/Add.4
GE.10-13887 29
management account”. The quarantined funds can only be spent in specially licensed
stores on “priority needs”, such as food, clothing, and household items, using a
bright green “BasicsCard” that clearly identifies its holder as someone subject to
income management. This regime applies to all those living in prescribed areas
inhabited by indigenous peoples, regardless of whether or not they have
responsibilities over children or have been shown to have problems managing
income in the past. By contrast, outside of the prescribed areas, income quarantining
applies only on a case-by-case basis in demonstrated situations of neglect, abuse, or
inadequate school attendance. Further, the NTER terminated the Community
Development Employment Project (“CDEP”), under which the Commonwealth
provided funding to employers to hire Aboriginal peoples who otherwise would
have received unemployment support. Since termination of the CDEP, payments are
now classified as unemployment payments, and are therefore subject to compulsory
income management.5
• The NTER imposes bans on alcohol consumption and pornographic materials within
Aboriginal communities in prescribed areas (with limited exceptions to the alcohol
ban), and in connection with the pornography ban requires policing of the use of
publicly funded computers. Mandatory signs are prominently placed at the entrances
to the communities, announcing the alcohol and pornography bans (“it is an offence
to bring, possess, consume, supply, sell or control liquor in a prescribed area without
a liquor permit or license” and “it is an offense to bring, possess, supply, sell and
transport certain prohibited material in a prescribed area”) and outlining serious
fines, up to AUD 74,800 and/or 18 months in jail for failure to abide by the
restrictions.6
• Part 6 of the NTER Act limits the consideration of indigenous customary law or the
cultural practice of an offender in criminal proceedings for all alleged offences (not
just those involving domestic or sexual violence), in bail applications and
sentencing.
• The Australian Crime Commission is accorded special powers, approved for use by
the National Indigenous Violence and Child Abuse Intelligence Taskforce, to
enhance its ability to collect information on alleged crime affecting indigenous
communities. These include secrecy and witness confidentiality provisions, and
special access to individuals’ records.
14. The Special Rapporteur cannot avoid observing that, on their face, these measures
involve racial discrimination. Under the International Convention on the Elimination of All
Forms of Racial Discrimination (“Convention to Eliminate Discrimination”), to which
Australia is a party, “the term ‘racial discrimination’ shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life” (art. 1.1).
5 The Special Rapporteur heard reports that the termination of the CDEP has had both negative effects
on Aboriginal employees who are left to seek work into the formal labour market without adequate
alternative employment options or training, and on employers, who have lost funds with which to hire
Aboriginal employees thereby, abruptly reducing their potential workforce.
6 These maximum fines are, with respect to alcohol restrictions: AUD 1,100 for the first office, $2,200
for the second or subsequent offences, and $74,800 and/or 18 months in jail for supplying/intending
to supply over 1,350 ml quantity of pure alcohol in liquor to a third person; and with respect to the
prohibited materials restrictions, $5,500 for “level 1 material and” $11,000 for “level 2 material”.
A/HRC/15/37/Add.4
30 GE.10-13887
15. First, the above measures of the NTER, like the NTER overall, distinguish on the
basis of race, because they are intended to and in fact do apply specifically to indigenous
individuals and communities in the Northern Territory and not to others. The NTER
measures specifically target indigenous people or apply to people and land within
“prescribed areas” which, pursuant to section 4 (2) of the NTER Act, are specified
“Aboriginal land” and other designated areas that are populated almost entirely by
indigenous people. These areas cover some 600,000 square kilometres and encompass more
than 500 Aboriginal communities and over 70 per cent of Aboriginal people within the
Northern Territory (approximately 45,500 Aboriginal men, women, and children).7
16. Second, the differential treatment of indigenous peoples in the Northern Territory
involves impairment of the enjoyment of various human rights, including rights of
collective self-determination, individual autonomy in regard to family and other matters,
privacy, due process, land tenure and property, and cultural integrity. These rights are
recognized, inter alia, in the International Covenant on Civil and Political Rights (ICCPR)
(especially arts. 1, 14, 17, 27) and in the United Declaration on the Rights of Indigenous
Peoples (especially arts. 3, 5, 7, 8, 11, 15, 18, 19, 20, 23, 26, 32). The Declaration places
special emphasis on the right of indigenous peoples to self-determination and selfgovernment
(arts. 3, 4), to be actively involved in the design and implementation of
development initiatives in their communities (art. 23), to control the disposition of their
lands and territories (arts. 26, 32), and to be consulted for “legislative or administrative
decisions that may affect them” (art. 19). Significantly, by all accounts, the NTER was
initiated without any consultation with the affected indigenous communities. Additionally,
especially in its income management regime, the NTER imposes discriminatory treatment
of indigenous peoples in relation to their right to social security, which is protected by the
International Covenant on Economic, Social and Cultural Rights (ICESCR) (art. 9).
17. As a party to both the ICCPR and the ICESCR, Australia must respect the human
rights protected by these treaties, in addition to being bound to the provisions of the
Convention to Eliminate Discrimination; and, having declared its support for the
Declaration on the Rights of Indigenous Peoples, it should also adhere to the principles of
that instrument.
18. Under the Convention to Eliminate Discrimination (art. 2.1), and various other
human rights instruments, including the ICCPR (art. 2.1) and the ICESCR (art. 3), States
are obligated to avoid and prevent discriminatory treatment on the basis of race that impairs
the enjoyment of human rights. The proscription against racial discrimination is a norm of
the highest order in the international human rights system. Even when some human rights
are subject to derogation because of exigent circumstances, such derogation must be on a
non-discriminatory basis. Under article 4 (1) of the ICCPR, “n time of public emergency
which threatens the life of the nation” a State party may derogate certain rights of the
Covenant “to the extent strictly required by the exigencies of the situation” and only
“provided that such measures ... do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin”.8 Similarly, the Declaration states in article
46 that “ny such limitations shall be non-discriminatory
and strictly necessary solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and for meeting the just and most compelling requirements of
a democratic society”.
7 Northern Territory Emergency Response – Report of the NTER Review Board (October 2008), p. 9
(“Report of the NTER Review Board”).
8 Emphasis added.
A/HRC/15/37/Add.4
GE.10-13887 31
B. Special measures
19. Provisions of the NTER legislation identify the operative parts of the NTER
programme as “special measures” for the purposes of the Commonwealth Racial
Discrimination Act of 1975. With this “special measures” designation, related provisions of
the NTER legislation suspend the prohibition of discrimination of the Racial Discrimination
Act and of the racial discrimination laws of the Northern Territory.
20. Notwithstanding the effect of this legislative arrangement on the domestic norms
dealing with discrimination, the NTER measures must be evaluated autonomously in regard
to Australia’s international obligations, particularly under the Convention to Eliminate
Discrimination. In the opinion of the Special Rapporteur, the discriminatory aspects of the
NTER discussed above have not been shown to qualify as “special measures” that may be
deemed not to constitute racial discrimination for the purposes of the Convention. Article 1
(4) of the Convention to Eliminate Discrimination provides, “Special measures taken for
the sole purpose of securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection … shall not be deemed racial discrimination.”9
21. As already stressed, special measures in some form are indeed required to address
the disadvantages faced by indigenous peoples in Australia and to address the challenges
that are particular to indigenous women and children. But it would be quite extraordinary to
find consistent with the objectives of the Convention, that special measures may consist of
differential treatment that limits or infringes the rights of a disadvantaged group in order to
assist the group or certain of its members. Ordinarily, special measures are accomplished
through preferential treatment of disadvantaged groups, as suggested by the language of the
Convention, and not by the impairment of the enjoyment of their human rights.
22. The Committee on the Elimination of Racial Discrimination has advised that,
“Special measures should be appropriate to the situation to be remedied, be legitimate,
necessary in a democratic society, respect the principles of fairness and proportionality, and
be temporary ... States should ensure that special measures are designed and implemented
on the basis of prior consultation with affected communities and the active participation of
such communities.”10
23. Being racially discriminatory on their face, the rights-impairing aspects of the NTER
measures should be presumed to be illegitimate. That presumption might possibly be
overcome only if there is a strong showing that the measures are proportional and necessary
in regard to a valid objective, and that adequate consultations have been undertaken. As
pointed out above, no such consultations preceded enactment of the NTER programme;
and, apart from that, the discriminatory measures cannot be viewed in the considered
opinion of the Special Rapporteur, as proportional or necessary to the stated objectives of
the NTER, valid as those objectives are.
24. Indigenous people with whom the Special Rapporteur met in various communities in
the Northern Territory, including numerous women expressed anguish over not just the
immediate impacts of various aspects of the NTER, but also about a deepening sense of
indignity and stigmatization that is brought about by the entire scheme. In addition,
9 Further, article 2 (2) requires States “when the circumstances so warrant” to take “special and
concrete measures to ensure the adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing” the full enjoyment of their human
rights.
10 Committee on the Elimination of Racial Discrimination, general recommendation No. 32: The
meaning and scope of special measures in the International Convention on the Elimination of Racial
Discrimination (2009), paras. 16, 18.
A/HRC/15/37/Add.4
32 GE.10-13887
according to the information received by the Special Rapporteur, the NTER measures have
had the effect of generating or heightening racist attitudes among the public and the media
against Aboriginal people. Concern has been expressed especially about the stigmatizing
effects of the large signs at the entrance to prescribed areas announcing the alcohol and
pornography bans, and of the special government-issued BasicsCard that is mandatory for
purchasing essential household items.
25. The Special Rapporteur finds credible assertions that, in general, the design of the
NTER provisions animates perceptions of indigenous peoples as being somehow
responsible for their present disadvantaged state. The special government-appointed
independent board established to evaluate the NTER, the NTER Review Board, noted that
“there is a strong sense of injustice that Aboriginal people and their culture have been seen
as exclusively responsible for problems within their communities that have arisen from
decades of cumulative neglect by governments in failing to provide the most basic
standards of health, housing, education and ancillary services enjoyed by the wider
Australian community”.11
26. After considered evaluation of the totality of circumstances, and with the objectives
of the relevant international human rights instruments in mind, the Special Rapporteur is
not convinced that the particular aspects of the NTER that limit or impair rights are justified
by and proportional to the legitimate aims of the NTER. When government measures not
only apply differential treatment to indigenous peoples, but also limit or condition their
enjoyment of human rights and cast a stigmatizing shadow upon them, the most exacting
inquiry must apply. To find the rights-limiting, discriminatory measures of the NTER to be
justified would require a careful assessment that they are strictly necessary to the
achievement of the legitimate NTER objectives, that those objectives somehow override the
rights and freedoms being limited, and that there is an absence of suitable alternatives.
27. At this stage, after more than two years of the NTER being operative, such an
assessment would have to be based, at a minimum, on clear evidence that the NTER is in
fact yielding results in terms of its stated objectives and that the rights-limiting aspects of
the programme are in fact necessary contributing factors to those results. To date, the
evidence in this respect is at best ambiguous.12 The Government has reported certain
improvements in access to food and in safety for indigenous women and children, on the
basis of consultations with indigenous individuals subsequent to the adoption of the NTER
measures.13 However, even assuming such improvements, there is no evidence that the
rights-impairing discriminatory aspects of the NTER have been necessary.
28. The Special Rapporteur is of the view that there must be better alternatives to the
current NTER scheme that could incorporate a holistic approach to advancing the security
and well-being of indigenous women and children along with the well-being and rights of
all indigenous individuals and of the communities that they constitute. Several indigenous
women with whom the Special Rapporteur met pleaded for such a holistic approach while
explaining that their rights as indigenous women are inextricably bound to their capacity to
11 Report of the NTER Review Board, p. 9.
12 For example, in its report monitoring NTER activities for the period January 2009 to June 2009, the
Government identified data showing significant increases during that period in reported incidents of
alcohol-related and domestic violence, and of child abuse, although it could be that these increases are
at least in part due to an increase in reporting to the police of such incidences. FaHCSIA, Closing the
Gap in the Northern Territory: January 2009 to June 2009, Whole of the Government Monitoring
Report – Part One, Overview of Measures, pp. 31–33.
13 See Australian Government, Report of the Northern Territory Emergency Response Redesign
Consultations (2009).
A/HRC/15/37/Add.4
GE.10-13887 33
make choices for themselves and to the self-determination and cultural integrity of their
communities. In this regard, the NTER Review Board aptly observed:
Not surprisingly, there was a convergence among official commentaries and
submissions to the Board around the fundamental principle of international human
rights law that different classes of rights cannot be traded off against each other ... .
It is important to note that criticisms over the exclusion of the [Racial
Discrimination Act] do not simply reflect an “academic” debate. Throughout the
Board’s community visits and consultations with various organizations and
representatives, it was made abundantly clear that people in Aboriginal communities
felt humiliated and shamed by the imposition of measures that marked them out as
less worthy of legislative protections afforded other Australians ... .
The fact that different sets of human rights are not to be traded off against
one another is particularly critical in the context of addressing specific concerns in
Aboriginal communities. The indivisibility and interdependence of human rights in
this context means that addressing issues of violence and abuse ... cannot be done by
enacting racially discriminatory measures. Indeed, the critical point to be made here
is that addressing the safety and well-being of children, women and families requires
the strengthening of human rights frameworks. Such strengthening cannot occur in
the context where different categories of rights are considered to be inherently
inconsistent – which is not the case.14
29. While overall the NTER is surrounded by controversy, many of the programme’s
components are undoubtedly legitimate and important efforts to address indigenous
disadvantage. Most notably, the NTER has brought an influx of funds and new initiatives to
improve the conditions of indigenous peoples, including women and children in key areas
such as housing, health, education, employment and police protection. However, the
Special Rapporteur is of the conviction that these efforts can move forward without the
racially discriminatory aspects of the NTER and that, indeed, they can best succeed without
them and by ensuring as the NTER Review Board has counselled, that the broader human
rights framework is strengthened for Aboriginal peoples in the Northern Territory.
IV. Anticipated reform
30. Amidst a number of criticisms of the NTER, the Government committed to a
process of review of the programme after a year of its operation. The NTER Review Board
issued its report to the Government on 12 October 2008, making a number of
recommendations in each of the programme areas of the NTER, as well as three
overarching recommendations: (1) that “he Australian and Northern Territory
Governments recognize as a matter of urgent national significance the continuing need to
address the unacceptably high level of disadvantage and social dislocation being
experienced by Aboriginal Australians living in remote communities throughout the
Northern Territory”; (2) that “n addressing these needs both governments acknowledge
the requirement to reset their relationship with Aboriginal people based on genuine
consultation, engagement and partnership”; and (3) that “Government actions affecting the
Aboriginal communities respect Australia’s human rights obligations and conform with the
Racial Discrimination Act 1975”.15
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