VISIT TO AUSTRALIA: UNITED NATIONS HUMAN RIGHTS RAPPORTEUR PROFESSOR JAMES ANAYA - UPDATE 3

This is the 3rd post on Prof Anaya's

Australian visit

and the associated letter campaign.

See Updates 1 and 2 for further details.

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Dear Professor Anaya,

Being aware of your forthcoming visit to Australia, it is hoped that you may consult with the Australian Government to ensure that the proposed reinstatement of the Racial Discrimination Act (RDA) with regard to Aboriginal peoples living in the Northern Territory be an authentic reinstatement of human rights.

Many Australians are delighted that the Government plans to reinstate the Racial Discrimination Act (RDA) in the Northern Territory in October. The Act was suspended specifically to enable certain ‘special measures’ to be imposed on Aboriginal people living in the Northern Territory. Those ‘special measures’ would have been illegal had the RDA not been suspended. That suspension of the RDA and those ‘special measures’ are known as the Northern Territory Intervention.

The Northern Territory Intervention has been widely condemned on the ground that it was not proceeded by or based upon the outcome of any consultation or negotiation with the 73 affected communities.

The current Government is to be commended for attempting to have appropriate input from the affected communities before completing the reinstatement process. However there is deep concern that the procedures designed to obtain that input and / or the implementation of those procedures is deeply flawed.

The Government has indicated that these “special measures”, with a few minor adjustments, are expected to remain in place after the reinstatement of the Act. As was previously the case, those measures would be illegal in the absence of either other legislative changes or the concurrence of the affected Aboriginal people. In order to obtain such concurrence a process of ‘consultations’ has been rolled out across the Territory.

The consultation process has been progressed on the basis of a discussion paper, “Future Directions” which itself is simply a series of developed policies. Objections to these policies have been regularly and frequently aired by Aboriginal, as well as human rights groups throughout the last two years.

The ‘Future Directions’ paper is written in the English language. It is long, complex and in parts, confusing... Inadequate provision has been made for its translation or interpretation. There has not been an open process and no records of meetings have been provided to communities or to the public. Some communities have indicated a failure to provide any real opportunity to express views, especially in the ‘first tier’ consultations.


There is grave concern that this flawed process will preclude implementation of the Government’s articulated principle that”one size does NOT fit all”. It appears that some communities support some ‘special measures’ while others do not.

The National Aboriginal and Torres Strait Islander Ecumenical Commission states, “As Aboriginal and Torres Strait Islander Christians, representing many different denominations and backgrounds, we are united against the NT Intervention in its current form” and asks government to, ‘Recognise the right of Aboriginal and Torres Strait Islander Peoples to negotiate agreements with governments. We stress negotiation as distinct from consulting with Aboriginal and Torres Strait Islander Peoples about the implementation of policy and programs which have already been already been developed and decided on”. (4 June 2009)


The Report of the ninety-fifth session of the UN Human Rights Committee contains the following

"14. The Committee notes with concern that certain of the Northern Territory Emergency Response (NTER) measures adopted by the State party to respond to the findings of the report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse in the Northern Territory ("Little Children are Sacred" of 2007) are inconsistent with the State party's obligations under the Covenant. It is particularly concerned at the negative impact of the NTER measures on the enjoyment of the rights of indigenous peoples and at the fact that they suspend the operation of the Racial Discrimination Act 1975 and were adopted without adequate consultation with the indigenous peoples. (art. 2, 24, 26 and 27)

"The State party should redesign NTER measures in direct consultation with the indigenous peoples concerned, in order to ensure that they are consistent with the Racial Discrimination Act 1995 and the Covenant."

The Report from the UN Committee on Economic, Social and Cultural Rights of its forty-second session at Geneva, 4 to 22 May 2009, includes:

The Committee recommends that the State party: a) address the human rights violations identified in the 2007 Little Children are sacred report bearing in mind the recommendations of the 2008 report of the Northern Territory Intervention Response Review board in this regard; b) conduct formal consultations with the indigenous peoples concerned regarding the operation and impact of the Northern Territory Intervention; c) establish a national indigenous representative body with adequate resources; and d) ratify ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989

It is requested that you strongly encourage government to:
 disregard any ‘findings’ from the current and flawed consultation process
 re-engage in genuine negotiation with Aboriginal elders and their representatives
 ensure that such processes are transparent and include the services of interpreters and independent facilitators
 provide choice to individuals and communities by re-committing to the understanding of the recently articulated principle by government that ‘one size does NOT fit all’.
 employ human rights principles in the development of just policies not compulsory, blanket measures based on race.

Your consideration of these matters will be very gratefully appreciated.

Yours sincerely,