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Using One’s Right of Inspection: Australia, the United Nations, Human Rights and Aboriginal People

Droit de regard : Australie, Nations Unies, Droits de l’Homme et Aborigènes
Ludivine Royer

Résumés

La candidature de l’Australie pour un siège au Conseil de Sécurité de l’ONU a fourni une occasion de faire le point sur la relation que ce grand pays des antipodes entretient avec l’Organisation, et plus particulièrement, au vu des tensions longtemps palpables, avec ses organes investis des Droits de l’Homme. L’Australie, qui revendique un rôle exemplaire en Asie-Pacifique et dans le monde, est-elle, chez elle, à la hauteur de ses pretentions ? La façon qu’elle a de traiter sa minorité autochtone, de lui reconnaître ou au contraire de lui ôter des droits, est sans doute un indicateur sérieux. Aussi convient-il d’examiner les politiques adoptées récemment par les différents gouvernements australiens, conservateurs et travaillistes, vis-à-vis des Aborigènes. De les confronter à la loi, la morale et les normes internationales, sachant que droits citoyens et droits spécifiques/collectifs sont désormais indissociables dans la pensée postcoloniale qui anime la réflexion sur les peuples autochtones. Et d’en tirer les conséquences, pour le présent et, idéalement, pour un meilleur avenir.

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Entrées d’index

Index géographique :

Australia, Australie
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Texte intégral

1Australia was a candidate for the United Nations Security Council 2013-14. This was no surprise as former Labor Prime Minister Kevin Rudd had announced as early as March 2008 that Australia would follow the advice of the Hon. Robert M. Hill, then Australian Permanent Representative to the UN, and compete for a non-permanent seat at the UNSC. Besides, given both her record of contribution to global issues and the leadership role she played in East Timor, the Solomon Islands, Bougainville and Afghanistan, Australia was certainly a good contender for a two-year seat.

  • 1 See for instance, Raoul Heinrichs, “There is no Compelling Explanation for Australia's UN Bid (...)
  • 2 Kevin Rudd, A Discerning Conversation with Kevin Rudd : Things that Matter (Conversation betw (...)

2However, considering that Australia had been absent from the UN Security Council since 1986, one may indeed wonder about her recent diplomatic priorities. Why was it suddenly important to be chosen by the General Assembly and weigh on UN resolutions related to international peace and security ? Why would Australia ever decide to put herself in a position which would leave her no choice but take sides in disputes between China, her most important economic partner, and the US, her long-standing ally ? How could it be in the nation’s interest to be caught in between Washington and Beijing on such contentious global issues as North Korea, Iran, Syria, Sudan and Zimbabwe ? Not being an expert on Sino-Australian relationships, or on American-Australian ones, I would not venture to answer this popular concern1, but, still, I believe one may aptly call to mind three of the great principles which former PM Kevin Rudd voiced when reflecting on “Things that Matter”2. The first of these principles is the interdependence of the economic, the diplomatic, the political, the humanitarian and the security spheres. The second is the impossibility of thinking most national issues apart from world issues in the new global era. The third is the necessity to think not only in terms of interests but also, equally and simultaneously, in terms of values. From Mr. Rudd’s viewpoint, being a key global actor is therefore what Australia needs to strive for from every perspective: not only would her “practical” and “informed” voice add in shaping a value-based order but it would help in shaping a world that serves Australia well.

3Accordingly, the Rudd government’s foreign policy very much favored Australia’s multinational agreements and international commitments, as did Julia Gillard’s Labor government after that, in sharp contrast with John Howard’s Coalition government from 1996 to 2007. In fact, as if to atone for a whole decade of politics driven by complete loyalty – if not obedience – to the US, selected bilateral relations, an “us and them” vision of the world and a marked wariness of the United Nations, the Labor Party was consistently anxious to send out numerous, clear signs of a directional change when it took office in December 2007. Surely then, Australia’s bid for a seat in the Security Council should be understood within this general framework. The world should know : Australia was determined to be a good international citizen and an actively committed UN member.

4From many points of view, including that of social workers and human rights activists, that Australia should prove willing to enter new global agreements and repair broken relations with the UN could only be a motive for satisfaction, relief and hope. Yet, as in the old chicken and egg story, one may ask what should come first. Should Australia be allowed to play a greater part in the Council before her relationships to other UN bodies – particularly human rights bodies – were completely normalized ? Australia having been several times condemned for her disrespect of basic human rights, should the United Nations not make sure that she fully complied with their most fundamental values before they granted her any further responsibility and power ?

5Whether the UN would have been better advised to use the carrot of encouragement rather than the stick it applied during John Howard’s premiership was a matter for speculation. But Australia’s application to the Security Council certainly offered an opportunity – and an appropriate time – to assess the way she complied with international standards of human rights. This paper endeavors to do this, and looks at her chaotic relationship with the UN, though one should immediately confess to a specific rather than a holistic approach: while the human rights of asylum seekers and other minorities are also very much in need of close scrutiny, the focus here is, for many reasons, on Australian Aboriginal people. The main points about Australia’s legal and moral standing in the world should however be made.

“I am proud of Australia’s record at the United Nations”

  • 3 Julia Gillard in “The 7.30 Report,” ABC News, ABC, October 5, 2010.

6Julia Gillard served as Minister for Education, Employment and Workplace Relations under Kevin Rudd before she came into office in June 2010, which may explain why she felt at ease confessing that “if [she] had a choice, [she]’d probably more be in a school watching kids learn to read in Australia than in Brussels at international meetings.”3 With the change of Labor prime ministers, Australia had changed a career diplomat passionate about foreign policies for a politician who admitted to the contrary. Those who had welcomed Kevin Rudd’s moves towards a renewed partnership with the United Nations were thus slightly worried – although human rights were never particularly threatened in the hands of a Labor woman who had proved quite conciliatory, while working in the Shadow Cabinet, in her handling of the Population, Immigration, Reconciliation and Indigenous Affairs portfolios. In any case, Julia Gillard soon put an end to the slight suspense around the lines of her foreign policy, by selecting her former leader Kevin Rudd as Foreign Minister and publicizing widely her commitment to a “three pillars” foreign policy, in line with her predecessor’s. Australia would give equal priority to her membership of the United Nations, her alliance with the United States and her engagement with Asia, thus there was no ambiguity that she would endorse Australia’s candidacy to the UN Security Council. Those who had favored a rapprochement between Australia and the international community breathed again. Still, that Labor should have had a lasting, coherent vision of the country’s foreign policy was a guarantee neither that the people in Australia would support their project for greater involvement in the UN, nor, in fact, that the UN would agree. Thus a long and sustained campaign started, both in Australia and abroad.

7As is commonly if not systematically done in Australia when a political and/or information campaign is launched, a booklet was published and distributed widely. “Australia – Candidate for the United Nations Security Council 2013-14,” its title read, yet the kangaroo drawn in dot painting on the cover suggested that the twenty-page document would come down neither to a formal list of explanations and motivations for candidacy, nor to an institutional, historical layout of Australia’s relations with the Security Council or other peacekeeping bodies. The truth is that the booklet and the whole campaign around Australia’s candidacy were wonderful opportunities to sell Australia’s greatness to the world and sing her praises. At last the Labor Party had a chance to feed Australians’ pride and call on their nationalism while making a comfortable international political move based on self-worth and self-congratulation.

8Of great significance are Julia Gillard’s first words in her introduction to the booklet : “I am proud of Australia’s record at the United Nations,” she said. Then, she went on to recall that Australia was a “founding member” of the UN, that she had a “long democratic tradition”, that she was “a long-standing, reliable and consistent contributor to the UN’s work on preventive diplomacy, peacekeeping and peacebuilding”, that she assisted countries and developing states “most vulnerable to the effects of climate change” and that she took “a lead role in advancing disarmament and non-proliferation efforts”. “Australia has the capacity, energy and experience to make a strong, positive contribution to the Council’s vital work,” she concluded, relying on the following nineteen pages to support her conviction. The Australian Prime Minister could have added that Australia had held the first Presidency of the Security Council in 1946, that she was currently “the 12th largest contributor to the UN regular and peacekeeping budgets” and “one of the top ten contributors” to major UN humanitarian programs, that she was resolutely working on the ground and through various agencies to improve standards of health and education in the world, that she was “always among the first countries to respond to calls for help following disasters”, that she “help[ed] developing countries to participate effectively in the multilateral trading system” or that she had quite significantly contributed to international efforts made to confront terrorism. Julia Gillard could indeed have made these assertions, for not only were they good for Australia’s standing but they were also quite true. Yet, she left them to the rest of the booklet, or else to the Department of Foreign Affairs and Trade, herself commenting on human rights instead.

9Had she stayed in the international realm, she would have taken few major risks, for, indeed, Australia has an “enduring commitment to human rights internationally”, is “actively engaged in the international human rights system” and is “a party to major human rights treaties”. She could have insisted more upon the fact that Australia has played a leading role in the development of human rights in the Asia-Pacific region and that she “funds non-government organizations and human rights institutions in developing countries to promote and protect human rights at the grassroots level.” She could even have dwelt on comments which cost and commit little, emphasizing again that Australia was “one of the eight countries that drafted the Universal Declaration of Human Rights,” that she held the presidency of the UN General Assembly when the Declaration was finally adopted, “respects good international citizenship” and places “the values of the UN Charter” at the “centre [of her] conduct on the world stage”. Instead, however, she, her advisors and other contributors to the booklet chose to make references to domestic as well as international issues. They perhaps felt that something had to be said about human rights in Australia given the context and objectives of the brochure. They perhaps thought that though the stakes were international, keeping silent about the human rights of Australian minorities – indigenous people in particular – could arouse suspicion. They perhaps felt that such silence would amount to denying them again, whereas their mention could be quite inspiring, or they perhaps wanted to send out the message that Australia would now face its responsibility as regards human rights, not only abroad but within her national frontiers as well. They were certainly eager to restore the tarnished image of Australia that John Howard had left behind, as well as to start building new bridges with human rights organizations, but even so, given Australia’s human rights record, any of their assertions was bound to be basically suspect to anyone familiar with modern Australian history.

10For her part, Mrs Gillard was satisfied with praising Australia for being “home to ancient, Indigenous cultures” and for “embracing millions of migrants and refugees” – neither of these two phrases being incidental, of course, Australia having been severely and regularly criticized for the treatment of both Aboriginal people and asylum seekers. While her further commentary on “the vital importance of development for human dignity” has the potential to irritate anyone who knows anything about Aboriginal people’s indecent living conditions, the Prime Minister’s references to domestic issues were kept courteous and short. However, these two adjectives do not easily apply to the booklet as a whole. Near the end, the brochure includes the Apology to Australian Indigenous Peoples that the House of Representatives adopted in 2008, a major “Reconciliation with First Peoples” heading and a series of extremely positive comments on Australia’s attitude towards indigenous peoples, at home and abroad. The problem is not so much what is being said, for all assertions are true. It is true that the Australian government supported the establishment of an indigenous national representative body as well as the creation of the UN Permanent Forum on Indigenous Issues. It is true that Australia adopted a formal policy of Reconciliation with her indigenous peoples from 1991 to 2000 and that she formally apologized to them for past mistreatment and injustices. It is equally true that the Australian government has been “working hard to close the gap between Indigenous and non-Indigenous Australians in key health, education and employment outcomes.” Nevertheless, the manner in which these statements are presented, formulated and associated would surely lead an uninformed audience to draw false conclusions.

11Self-praise may well be inevitable in a document that supports Australia’s bid to the Security Council, and it is only logical that every phrase should have been carefully weighed to suit the political exercise and ultimately serve the pursued objective. However, one cannot but be struck by the way indisputable facts are used – either strategically, emphatically or out of context – to paint an erroneous portrait of Aboriginal people’s status, well-being and human rights in Australia. Could it be that the contributors wanted to value what has been done and suggest inspiring ways for the future ? The confidence with which ongoing processes are presented as proud achievements and long-conflicting issues as obvious facts remains profoundly unsettling. Beyond an overwhelming determination to project an idyllic image of Australia to the world, one can even discern some intention to deceive. Considering the extent to which the document is publicized in Australia and abroad, some reminders about Australia’s human rights record and recent history with the United Nations may be appropriate at this point.

John Howard’s Policy : Aboriginal People’s Rights in Jeopardy

12Telling the truth has been a major principle in those Western democracies that adopted Reconciliation as a formal policy – and Australia is one of them. Recognition, acknowledgment, repentance and other such concepts have been consistently put forward as the cornerstones of new, reformed, reconciled, post-colonial societies, leading countries as reluctant as Australia to finally face their colonial past and openly confess their wrongdoings. Yet some issues resolutely remain silenced, ignored or toned down, and, in the case of Australia, they often belong to the recent rather than the distant past. Whereas New Historians have worked for old truths to emerge despite popular resistance and political denigration – John Howard even scornfully calling them “black-armband historians” –, more recent truths have had a hard time to exist in the open, public space, and even more so on the global stage. This should be no surprise as, of course, recent events are likely to have more extensive and more sensitive personal, societal and political consequences. For this very same reason, however, it is of importance to speak about the human rights of Australian Aboriginal people over the past quarter of a century.

13In a postcolonial world, everyone should know how indigenous people were abused, their lands stolen, their rights blatantly scorned, their families torn apart, their communities broken, their cultures despised, their dignity wounded and their future compromised – and in fact most people do know. However, many would spontaneously consign all the wrongs committed to the past, most often to the pre-WWII period, in any case to the pre-1972 period. The 1970s indeed marked the start of a whole new era in Australia, the introduction of a self-determination policy in indigenous affairs and thus, the beginning of a time characterized by Aboriginal political empowerment, land rights, treaty talks and positive discrimination. Surely then, these years marked a departure from previous policies and practices. But, for all that, did they put an end to all forms of denial or abuses of indigenous people’s rights in Australia ? With reference to the current framework of both human rights and indigenous people’s rights, clearly not.

  • 4 High Court of Australia, Mabo & Ors v State of Queensland [No.2] (1992) 175 CLR 1.

14The late 1980s were already showing a loss of impetus with regard to the rights of Aboriginal people though the bicentenary of colonization had been an inspiring landmark. The project of a National Land Rights Act modeled on the Aboriginal Land Rights (Northern Territory) Act 1976 had been abandoned, the concept of self-determination had very much disappeared from mainstream discourses and the promise of a treaty had been, finally, withdrawn from the political agenda. The momentum which had supported the recognition and development of Aboriginal people’s rights as both citizens and indigenous people had therefore clearly faded away when a ten-year national project of reconciliation between indigenous and non-indigenous people was introduced, in 1991, with in fact little certainty about its content and objectives. Everyone seemed to agree on a reconciliation process that would somehow settle history, create better interethnic relationships, foster greater understanding of Aboriginal cultures and help reduce socioeconomic inequalities between indigenous and non-indigenous people, but then, here the consensus ended. Disagreement and conflict now ruled over the rights agenda, which was finally sacrificed on the altar of social cohesion and national unity. Admittedly, the “big picture” which Prime Minister Paul Keating painted between 1991 and 1996 did not oppose minority or indigenous rights ; on the contrary, to him, Australia’s standing in Pacific-Asia and the world depended on her capacity to become a truly multicultural and postcolonial society. Yet, this very vision arguably played a very important part in his loss of popularity and ultimate deposition : Australia’s mainstream society increasingly resented minority rights, contrasting “special” rights and national interest, and its general resistance to indigenous rights was never so great as in the aftermath of the High Court’s ruling that Aboriginal people’s native title to land had not systematically been extinguished4. The time was not that of a popular endorsement of the rights of indigenous people therefore, but during the first half of the reconciliation decade, the dominant political will at least ensured that they would not be diminished.

  • 5 John Howard, “Practical Reconciliation,” in Michelle Grattan (ed.), Reconciliation: Essays (...)

15The possibility that Aboriginal people’s rights would go backwards rather than forwards only seriously arose in 1996 when power changed hands, from Labor to the Conservatives. Such a reverse process had seemed unlikely in a world that advocated respect for indigenous rights more and more forcefully, particularly in a Western country claiming to be conducting a reconciliation policy with indigenous people, but still, when John Howard came to power with a “For All of Us” slogan, it was manifest that the people who had fought against the formulation of specific rights for indigenous and migrant minority groups had found their champion. “My vision,” he had made clear, “is of all Australians working together under one set of laws to which all are accountable and from which all are entitled to an equal dispensation of justice. We all have rights and obligations as Australians. We cannot share a common destiny if these rights are available to some Australians, but not all.”5 John Howard’s electorate trusted him to put Australia back in line with that liberal tradition which advocated perfect equality of responsibilities, rights and treatments. By contrast, his opponents watched him reshape a “desethnicized” Australia with concern. Many of the funds and programs that had been created in support of a fair multicultural Australia were cut back or simply withdrawn, unity came to replace diversity in governmental discourses and priorities, and the idea or ideal of granting Aboriginal people special rights was presented as an assault on Australian egalitarianism or other core values. In the second half of the reconciliation decade, the current had visibly changed. Australia was now going against the global tide, revisiting indigenous rights with the intention of restricting or denying rather than expanding or implementing them. The scenario may have seemed incongruous but, after John Howard was elected to power, the question was no longer whether the reverse process could exist but how far it could go, and, after the Conservative leader was re-elected in 1998, 2001 and 2004, how much longer it would last. Eventually, Howard’s Coalition government was defeated in 2007 and it was time for an overall assessment.

Land rights

16Aboriginal people’s land rights were severely restricted under John Howard’s premiership. There had been considerable development of those rights in the years prior to his first administration, namely, after the High Court of Australia handed down the landmark Mabo decision in 1992 ; the doctrine of terra nullius had been rejected, the continuing existence of indigenous rights to land on the basis of traditional occupancy had been recognized and Australian laws and policies had subsequently been reframed to recognize Aboriginal peoples’ customary titles to land. The Parliament had passed the Native Title Act in 1993 to set up clear processes for determining rights and dealings on native title lands and, given that recognition in common law, Aboriginal people had felt confident that they would regain a significant number of their traditional lands. Confidence had even turned to incredulity – considering Australia’s long-established reluctance to recognize indigenous rights to land – when the High Court ruled in Wik Peoples v. The State of Queensland that statutory pastoral leases did not bestow rights of exclusive possession on the leaseholder, that is to say, did not necessarily extinguish native title rights. In December 1996, it seemed that Australia was finally heading towards the kind of meaningful recognition that could be found in Canada, New Zealand and elsewhere.

  • 6 Maureen Tehan, “The Allure of ‘Certainty’ : Wik, the Ten-Point Plan and the Nat (...)
  • 7 John Howard in “The 7.30 Report,” ABC News, ABC TV, September 4, 1997.
  • 8 United Nations – Committee on the Elimination of Racial Discrimination, Concluding Observ (...)

17However, John Howard would in no way support these significant developments. While he could have reassured those of his fellow citizens who worried about the validity of most Australian land holdings by reminding them that the Wik decision did not apply to freehold land, or else by valuing the “shared use” of the land where diverse rights co-existed, the Prime Minister chose to endorse the attacks launched against the High Court and to set himself up as the figure of resistance6. As the Court had introduced uncertainty into Australian life, he would immediately bring back certainty to land ownership thanks to his “10-point Response to Wik” (1997), designed to limit the possible applications and implications of the decision. “What has happened with Native title is that the pendulum has swung too far in one direction, particularly after the Wik decision. What I have done with this legislation is bring it back to the middle,”7 he said. Since the Court had proved irresponsible and divisive, he would straighten things up, propose amendments to the Native Title Act and make sure that they were adopted in spite of all the reservations expressed in the Senate about his 10-point plan. John Howard was a man of resolutions – so determined to wind back Aboriginal land rights that repeated criticism by the UN Committee on the Elimination of Racial Discrimination8 amounted to nothing. Eventually, the Native Title Amendments Act (1998) was passed and, indeed, the Prime Minister had managed to impair the Act’s ability to protect the native title rights of Aboriginal people.

Aboriginal and Torres Strait Islander Commission

  • 9 J. Hannaford, J. Huggins & B. Collins, “Review of the Aboriginal and Torres Strait Island (...)
  • 10 Human Rights and Equal Opportunity Commission – William Jonas, Social Justice Report 2003(...)

18With regard to the rights of indigenous people, John Howard’s time in power was also marked by the disappearance of a nationally elected representative body with the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC). The Prime Minister had always been wary of a Commission which he and his government regularly accused of waste, corruption and nepotism, but who could have thought that he would in fact dismantle it altogether, symbolic as it was of Aboriginal empowerment and self-determination ? Of course there had been warnings. Already in Spring 1996, John Howard had cut ATSIC budget to such an extent that the Commission had been forced to close some community support programs. Then a $2 million review into the Commission had been launched in November 2002, and a few weeks later, the Minister for Aboriginal Affairs had announced that the government would progressively transfer ATSIC’s funding powers to a new non-elected body called Aboriginal and Torres Strait Islander Services (ATSIS). Still, to foresee that J. Howard would one day simply dismantle the Commission, one would have had to imagine that the man would ignore the conclusions of the panel he himself had commissioned – the review board having recommended that the Commission remain the government’s main advisor in Indigenous affairs9 – as well as the reports produced by the ATSI Social Justice Commissioner of the Australian Human Rights and Equal Opportunity – which underlined that empowering ATSIC further was “a critical aspect in achieving the effective participation of Indigenous peoples in decision making processes and supporting sustainable development.”10

  • 11 J. Hannaford, J. Huggins & B. Collins, op. cit., 5, 23.
  • 12 John Howard quoted in “Clark Vows to Fight as ATSIC Scrapped,” The Sydney Morning Herald, (...)

19Admittedly, every report agreed that ATSIC was “in urgent need of structural change” for “the representative structure [to] allow for full expression of local, regional and State/Territory based views.”11 The Commission had to be reformed in different and sometimes profound ways to achieve indigenous self-determination and effective governance, everyone would have agreed to that. However, reform is not the same as abolition. It therefore came as quite unexpected when John Howard announced in April 2004 that ATSIC would disappear altogether. The national body would go just two months later, then the regional offices would have a one-year respite, but in the end the Commission would die out and would not be replaced : “We believe very strongly that the experiment in elected representation for indigenous people has been a failure,” the Prime Minister said, and continued, “we will not replace ATSIC with an alternative body.” While the international community was unambiguously advocating the empowerment of indigenous people, therefore, the Howard government was boldly replacing the Aboriginal elected representative body by the National Indigenous Council (NIC), “a group of distinguished indigenous people to advise the government on a purely advisory basis.”12

  • 13 United Nations – Committee on the Elimination of Racial Discrimination, General Recommend (...)
  • 14 Senate Select Committee on the Administration of Indigenous Affairs, “After ATSIC : Life (...)
  • 15 William Jonas & Darren Dick, “Ensuring Meaningful Participation of Indigenous Peoples in (...)

20Of course the Prime Minister had not built indigenous support for such a project – in fact he did not consult Aboriginal people at all although the UN Committee on the Elimination of Racial Discrimination required that governments make sure “no decisions directly relating to their rights and interests are taken without their informed consent.”13 Neither had John Howard obtained the support of the Senate for his ATSIC Amendment Bill 2004 – its Select Committee on the Administration of Indigenous Affairs having concluded against the disappearance of an elected national body – , but foreseeing opposition, he proceeded with his reform before the Senate Committee delivered its report14. By the time the Committee reported in March 2005, indeed, ATSIC was only surviving on a minimal budget and the great majority of its programs had been transferred to various departments and other mainstream structures. That is, the Commission had been de facto abolished by the executive branch with no endorsement of the legislature15. Would it then be abusive to consider the Aboriginal and Torres Strait Islander Act 2005 as a democratic masquerade ? At best it was a simple a posteriori Parliamentary validation of what John Howard had been methodically doing for months to secure the death of indigenous national governance and limit political empowerment.

Self-determination

  • 16 Department of Immigration and Multicultural and Indigenous Affairs – Amanda Vanstone, “Op (...)
  • 17 Aboriginal and Torres Strait Islander Commission, Annual Report 2001-2002, Woden (...)
  • 18 ATSI Act 2005, section 3.
  • 19 W. Jonas & D. Dick, op. cit., 11 ; United Nations, Declaration on the Rights of Indigenous Peoples, (...)
  • 20 Department of Reconciliation & ATSI Affairs – John Herron, The Australian Contribution (...)
  • 21 Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait (...)
  • 22 Federico Mayor Zaragoza, 1999, quoted in Human Rights and Equal Opportunity Commission – (...)
  • 23 Human Rights and Equal Opportunity Commission, ibid., 48.

21According to the Howard government, the abolition of ATSIC logically followed the assessment that the organization had failed Aboriginal people as a service provider.16 Besides the fact that this basic assumption is questionable17, however, the dissolution of what John Howard had often referred to as the “Black Parliament” had clear and overwhelming connections with his profound dislike of the principle of self-determination in domestic policy. As made apparent in the ATSI Act 2005, the Prime Minister endorsed “self-management” and “self-sufficiency” but proscribed “self-determination”. He agreed on the need to “ensure maximum participation of Aboriginal [people] in the formulation and implementation of government policies” and to “further [their] economic, social and cultural development,”18 yet he would never agree to self-determination as a well-established corollary in the context of Aboriginal affairs19. His government – it was constantly emphasized – would never support a concept that could be considered as encouraging “forms of Aboriginal sovereign self-government”20. But could self-determination indeed be construed that way ? The Howard government held that this was the case although the assertion was regularly contested. “The meaning of self-determination is often confused by references to secession and separate statehood, but such references are unfairly inflammatory and do not reflect Aboriginal and Torres Strait Islander aspirations,”21 the Council for Aboriginal Reconciliation had concluded. “Australia’s opposition to recognition of a right to self-determination has been based on simplistic, and often legally incorrect, assumptions,” the Director General of UNESCO had underlined22. Again and again the Howard government was assured that the concept of self-determination did not threaten the territorial and political integrity of the Australian State, but the Prime Minister would not listen, either out of “bad faith” or as “a very simple way of not engaging with the real issues at stake”23.

  • 24 For instance, the UN General Assembly’s Declaration on Principles of Internatio (...)

22Given his unyielding position on indigenous self-determination, John Howard was expected to order his delegates at the UN to vote against the UN Declaration on the Rights of Indigenous Peoples – which he did. When the UN finally adopted the Declaration in September 2007 after twenty years of negotiations, Australia was one of only four countries out of a hundred and fifty-nine to vote against – a distinction which her representative explained as a result of the Australian government’s dissatisfaction with the references to self-determination in the text. Article 3 indeed protects the right of indigenous peoples to “freely determine their political status” by virtue of their “right of self-determination”, while Article 4 protects their “right to autonomy or self-government in matters relating to their internal and local affairs”. The Howard government thus saw the Declaration as supporting the creation of separate indigenous States and rejected it on this ground, although other international laws make it clear that the right of all peoples to self-determination shall not “be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”24 To anyone recalling the role that Australia had played to build support for the Draft Declaration and indigenous self-determination under Labor leadership, the negative answer which was given to the General Assembly was an incredibly sharp departure from previous policies.

Relationship with the United Nations

  • 25 United Nations – Permanent Forum on Indigenous Issues, Frequently Asked Questio (...)
  • 26 Amnesty International, “Public Statement – Submission on Juvenile Mandatory Sentencing in (...)
  • 27 J. Hannaford, J. Huggins & B. Collins, op. cit., 37.

23Australia’s decision to vote against the UN Declaration on the Rights of Indigenous Peoples further strained her relationships with the United Nations, the latter considering that the Declaration set “an important standard for the treatment of indigenous peoples that w[ould] undoubtedly be a significant tool towards eliminating human rights violations against the planet’s million indigenous people and assisting them in combating discrimination and marginalization.”25 In reality, however, the 2007 confrontation was only in line with a decade of Australian domestic and international politics. Since 1996, indeed, John Howard had shown little interest in, and support for, the United Nations. The UN-authorized intervention he had successfully undertaken in East Timor in 1999 had been positively viewed but in the end, it had not been enough to live down Australia’s decision to go to war with Iraq when the UN Security Council was looking for a peaceful resolution, the Howard government’s rejection of the Kyoto Protocol, its brutal and unlawful treatment of asylum seekers26, its constant refusal to provide a national apology to indigenous Australians for past wrongs and its human rights violations in relation to Aboriginal people. The United Nations had also condemned the abolition of the Aboriginal and Torres Strait Islander Commission — all the more severely as ATSIC had been present in Geneva as an advisor to the UN Economic and Social Council, a registered non-governmental organization, an active member of the Working Group on Indigenous Populations, and generally, a Commission which had consistently “kep[t] all Australians informed of global human rights issues,” evaluated the Australian governments’ performance and “provided an Indigenous Australian voice overseas.”27 Still, it was probably something else again which most compromised the relationship between Australia and the United Nations.

  • 28 Human Rights and Equal Opportunity Commission – William Jonas, op. cit., 2003, (...)
  • 29 John Howard, Statement to the Millennium Summit of the United Nations, Australi (...)
  • 30 “When Talk of Racism is Just not Cricket,” The Sydney Morning Herald, December  (...)

24After ATSIC was abolished, the Foundation for Aboriginal and Islander Research Action was the only remaining non-governmental organization that took part in international debates over indigenous rights and, tellingly, the funding it received from the Australian government was so limited that its action and survival were dependent upon the generosity of foreign governments as well as on the special aid – usually intended for poor countries – granted by the United Nations28. Clearly, the Howard government was not supporting the representation of Australian indigenous people on the international stage. Nor in fact was it very supportive when, conversely, the international community invited itself to Australia. John Howard threatened several times to boycott the human rights committees and activities within Australian boundaries, arguing that the United Nations had no right to interfere in Australian domestic affairs. “Australia’s recent experience has been that some of these committees give too little weight to the views of democratically-elected governments and that they go beyond their mandates,” he said. “Aspects of the UN treaty committee system need reform.”29 The implicit comment that democratic countries should be left alone by those who investigate human rights violations is highly debatable, but in fact, John Howard’s speech to the Millennium Summit of the United Nations was all too coherent with his overall position: the Prime Minister always thought it inappropriate that the United Nations should opine and intervene on domestic issues because he considered that this amounted to a loss of Australian sovereignty. “I don’t think it is wrong, racist, immoral or anything, for a country to say ‘we will decide what the cultural identity and the cultural destiny of this country will be and nobody else,’”30 he claimed – while many suspected him rather of shirking Australia’s international obligations on human rights.

Mandatory sentencing

  • 31 United Nations – Committee on the Elimination of Racial Discrimination, Concluding Observ (...)
  • 32 Aboriginal and Torres Strait Islander Commission (ATSIC), “Everybody’s Talking… TREATY,” (...)
  • 33 See also the United Nations – Committee on the Rights of the Child, Concluding (...)
  • 34 Australian Law Reform Commission & HREOC, Seen and Heard : Priority for Children in the Legal (...)
  • 35 Aboriginal and Torres Strait Islander Commission, Aboriginal and Torres Strait Islander P (...)

25The first major open power struggle between John Howard and UN human rights authorities took place after the UN Committee on the Elimination of Racial Discrimination published its report on mandatory sentencing in Australia in March 200031. The CERD had harshly criticized the Federal government for failing to override the mandatory sentencing laws in effect in Western Australia and the Northern Territory, for indeed, the amendments made in 1996 and 1997 to the Criminal Code (WA) 1913 and the Sentencing Act (NT) 1995 were in breach of international human rights law in many respects. Firstly, by requiring repeat offenders to be jailed for minimum prescribed periods, even for trivial offences, these laws violated the golden rules which provide that every punishment should be proportionate to the seriousness of the committed crime and that judges should have independent authority to decide on the fairest sentence, at times taking into account mitigating circumstances32. Secondly, by applying to all juvenile and adult offenders, these laws breached several provisions of the Convention on the Rights of the Child, including the one which states that “in the case of children, detention should be the last resort and for the shortest appropriate period.” (art. 37)33 Finally, as they affected primarily people of lower socio-economic backgrounds, and thus Aboriginal people34, these laws were shown to be in breach of Australia’s obligations as a signatory to several anti-discrimination treaties. The CERD therefore had several legitimate grounds on which to build criticism and demand Federal intervention, with still more conviction as Aboriginal people were already twelve times more likely to be jailed than other Australians35. Yet the Howard government did not see things that way.

  • 36 International Convention on the Elimination of All Forms of Racial Discrimination (art.  (...)
  • 37 Dato Param Cumaraswamy quoted by the Aboriginal and Torres Strait Islander Commission, (...)

26Rather than use the constitutional powers that the Federal government has to override state laws when they violate human rights, John Howard dismissed the CERD’s conclusions as unbalanced and inaccurate. Rather than comply with the International Convention on the Elimination of All Forms of Racial Discrimination and other treaties that require Federal intervention in such a case36, he accused the United Nations of intruding unreasonably in Australian domestic affairs. He even threatened to prevent its committees from further actions and investigations, leading the UN Special Rapporteur on the Independence of Judges and Lawyers to comment : “Australia was always seen as a human rights friendly nation. Its scathing remarks were seen not only as an attack on the treaty bodies but as an attempt to undermine UN monitoring mechanisms.”37 Again, rather than supporting the bill that the Senate had passed to overturn mandatory sentencing, John Howard insisted that the administration of criminal justice was largely a State/Territory matter and that the Federal government would do nothing to interfere.

  • 38 Department of Immigration and Multicultural and Indigenous Affairs – Philip Ruddock, “Our (...)
  • 39 Human Rights and Equal Opportunity Commission – William Jonas, Report to the UN Human Rig (...)
  • 40 Ibid. See also C. Cuneen & D. McDonald, op. cit., 65.

27In no case would he consider overriding state laws, though he agreed to negotiate. An agreement was reached with NT Chief Minister Denis Burke, for instance, in April 2000 : in return for its commitment to give the Territory twenty million dollars to divert juveniles from the criminal justice system, the Commonwealth obtained that 16-17 year olds be treated as juveniles, not as adults, and that the police divert juvenile offenders to special programs – systematically in case of “minor” offences, as they deemed convenient in case of more “serious” offences38. John Howard exulted, priding himself on having obtained changes through dialogue and compromises rather than authority and conflict. Yet, setting aside the singular idea that special funding should be granted to discriminatory States, the deal was eminently problematic in that it “[did] not confer any greater discretion upon the courts. Rather, vast discretion [was] vested in police officers to decide whether to pursue a matter through the courts, in which case mandatory sentencing [would] apply, or through diversionary programs.”39 How the deal was meant to allay fears of disrespect for human rights remains unclear, therefore, particularly when one considers the Australian police’s well-established prejudices and discriminatory practices towards Aboriginal people.40

Northern Territory National Emergency Intervention

  • 41 Patricia Anderson & Rex Wild, ‘Ampe Akelyernemane Meke Mekarle’ Little Child (...)
  • 42 United Nations – Special Rapporteur – James Anaya, Report by the Special Rappor (...)

28Australia’s already strained relations with the United Nations became tenser still in June 2007, when the Howard government announced a national emergency intervention in dozens of Aboriginal communities in the Northern Territory. The announcement was presented as a response to the Little Children are Sacred report41, published a few days earlier, which had informed the nation on the recurrence of child abuse in the Territory and which, indeed, demanded some serious governmental action : “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 indeed required under the international human rights obligations of Australia.” However, “any such measure must be devised and carried out with due regard for the rights of indigenous peoples to self-determination and be free from racial discrimination and indignity,”42 insisted the UN Special Rapporteur on the Rights of Indigenous Peoples. And that, clearly, was not the case. In accordance with the Northern Territory National Emergency Response Act 2007 (the NTER Act), the Intervention entailed, in prescribed communities: bans on alcohol, kava and pornographic material; the suspension of the permit system for access to indigenous communities ; the reconsideration of the idea that indigenous customary law and cultural practice should be taken into account in criminal proceedings, bail applications and sentencing; the acquisition, by the government, of the five-year leases which allowed indigenous people to control their townships under the provisions of the Native Title Act 1993 ; the quarantining of a percentage of welfare payments for essential goods purchasing, in practice a compulsory income management scheme, whether or not the recipients neglected their children or had difficulty managing their income; the abolition of the Community Development Employment Program, which had offered many Aboriginal people an alternative to unemployment; finally, the vesting of broader powers in the Minister for Families, Housing, Community Services and Indigenous Affairs, permitting him/her to examine the operation of Aboriginal community councils and associations and to intervene with respect to service delivery and management of funds.

  • 43 United Nations – Special Rapporteur – James Anaya, Report by the Special Rappor (...)
  • 44 United Nations – Human Rights Committee, Concluding Observations of the Human R (...)
  • 45 United Nations – Committee on the Elimination of Racial Discrimination, General Recommend (...)
  • 46 International Convention on the Elimination of All Forms of Racial Discrimination, (...)
  • 47 United Nations – Special Rapporteur – James Anaya, A/HRC/12/34/Add.10, op. cit., 2009, (...)

29According to UN Special Rapporteur James Anaya, all these measures overtly discriminated against Aboriginal people as they “include[d] restrictions on the exercise of individual rights of the members of Aboriginal communities […] as well as a number of limitations to vested communal rights” in ways that were not “on an equal basis with other sectors of the national population”43. No wonder, then, that the Human Rights Committee should have urged Australia to “redesign NTER measures in direct consultation with the indigenous peoples concerned in order to ensure that they [we]re consistent with the 1995 Racial Discrimination Act and the International Covenant on Civil and Political Rights.”44 Other UN treaty bodies also warned Australia that NTER measures impaired the enjoyment of various human rights protected in the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights and the United Declaration on the Rights of Indigenous Peoples – and for the most part, the Australian Government did not disagree. However, it was their conviction that “special measures” were strictly necessary to address the extraordinary challenges faced by indigenous people in the Territory – hence the suspension of the Racial Discrimination Act 1975 – and they would not be challenged on this. The problem is that, although international law indeed provides for “special measures” to cover the most extraordinary circumstances, their legal application is of course severely constrained: they “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.”45 Moreover, in order “not to be deemed racial discrimination”, they “should be taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection.”46 That the Intervention met these requirements was anything but certain, however : the Special Rapporteur on the Rights of Indigenous Peoples had several times underlined that the whole policy was neither proportional nor necessary to the stated objectives of the NTER47.

Labor Back in Power : Human Rights Back in Australia ?

  • 48 John Howard, Opening Speech of Australian Reconciliation Convention, Australasian Legal Inf (...)
  • 49 House of Representatives, Apology to Australia’s Indigenous Peoples, Canberra : Parliament (...)

30To the Special Rapporteur and anyone committed to human rights, the news that John Howard had been defeated by the Labor contender at the 2007 elections could only be a source of hope. Contrary to his Conservative opponent, indeed, Kevin Rudd was eager to engage strongly with the UN, redress alleged wrongs, improve the country’s relationship with indigenous people, address human rights violations and eventually, reestablish the international status and reputation that Australia had in the pre-Howard years. Important signs of change were given, including the formulation, in February 2008, of a long-awaited National Apology to Aboriginal people. While John Howard had consistently argued that “Australians of this generation should not be required to accept guilt and blame for past actions and policies,”48 the Federal Parliament came to apologize for “the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss.”49

  • 50 United Nations – Special Rapporteur – James Anaya, Report by the Special Rapporteur (...)

31Another important departure from previous Conservative policies was the eventual endorsement of the Declaration on the Rights of Indigenous Peoples in April 2009 under Labor leadership. The Australian government now gave its support to both the UN treaty system and the principle of self-determination, which was no small victory for Aboriginal people and human rights activists. Of course, this does not entail that indigenous people now fully enjoy their right to self-determination in Australia. And in fact, “there is a continuing need to empower indigenous peoples to take control of their own affairs in all aspects of their lives […] Indigenous institutions and community governance structures are subject to high levels of control by the State, and are often devoid of genuine opportunity to generate social, cultural and economic development.”50 Still, the recognition of self-determination as a foundational right was a crucial move, and one that inspired both the Rudd and Gillard governments’ policy in Aboriginal affairs.

  • 51 Declaration on the Rights of Indigenous Peoples – Resolution 61/295 adopted by the General (...)
  • 52 Megan Davis, Recognising ATSI People in the Constitution, Castan Centre for Human Rights La (...)

32The re-formation of an indigenous national representative body to fill the void created by the demise of ATSIC proves it most clearly. Beyond doubt, Australia has changed the course of its policies and is heading for something more in line with the principles of the Declaration. The National Congress of Australia’s First Peoples was created in 2010 to fulfill the principle that “Indigenous peoples have the right to participate in decision-making matters which would affect their rights, through representatives chosen by themselves […] as well as to develop their own indigenous decision-making institutions.”51 But there is much more to acknowledge: with Labor in power, Australia finally considered constitutional changes – as several Commonwealth countries had done years before – to better recognize and protect the rights of Aboriginal people as both citizens and indigenous people. Possible options have included a preamble to the Constitution, the constitutional entrenchment of a treaty, the insertion of a Canadian-style charter that recognizes the rights of indigenous people, a constitutional guarantee of non-discrimination and various other changes that would give Aboriginal people a meaningful status, and their rights a long-term protection52.

  • 53 Pat Dodson, Mark Leibler et al., Recognising Aboriginal and Torres Strait Islander (...)

33That the Australian government was favorable to constitutional changes should be underlined indeed, yet the point remains that the current Australian constitution remains deeply flawed. The Expert Panel which Julia Gillard formed in late 2010 to investigate and report on different possible options for constitutional change pointed to four major problems which should be straightened out : section 25 could be interpreted as allowing the States to disqualify people of a particular race from voting at State elections ; section 51(xxvi) could support adverse laws that discriminate against people on the basis of race ; Aboriginal people are nowhere recognized as the first inhabitants of Australia and the Constitution remains silent on their particular cultural, social, economic, political and land rights; last but not least, discrimination “on the grounds of race, color or ethnic or national origin” is nowhere explicitly prohibited. Hence the Panel’s recommendations that sections 25 and 51(xxvi) be repealed, that a statement of recognition be inserted as “section 51A” and that a new “section 116A” be written to prohibit racial discrimination, except “for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group”53.

  • 54 Marcia Langton & Megan Davis, “An Answer to the Race Question,” The Australian, January 21, (...)
  • 55 For instance Keith Windschuttle, “A Depressing New Agenda for Aboriginal Politics,” (...)
  • 56 M. Langton & M. Davis, op. cit.

34One can be taken aback to learn about this type of flaw in the Constitution of a democratic country which claims to have undertaken a process of reconciliation with its indigenous people for more than twenty years, but more striking perhaps is the fact that the Australian population has been reluctant so far to endorse any of the proposed constitutional changes. One explanation for this is that ordinary Australians have little understanding of the inherent difference of indigenous people, in spite of the intense information campaigns which have been conducted since the 1970s to back the self-determination and reconciliation policies, and little understanding of the proposed constitutional changes, in spite of a ten million dollar campaign run by Reconciliation Australia54. Another explanation is that a small but influential group of people notoriously opposed to indigenous rights has managed to spread alarm among Australians, building on feelings of fear and injustice or on white nationalism55. Last but not least, to understand why the government has decided to postpone the referendum on constitutional changes which was initially scheduled before the 2013 election, one should also link the difficulty in achieving such changes in Australia – only 8 of 44 referendums having succeeded throughout its history – with the stakes of the present referendum : “should the referendum question be defeated, the loss would result in disappointment and bitterness throughout Aboriginal Australia, and among all Australians […] Equally, the loss would brand Australians to the world as racists, and self-consciously and deliberately so […] A referendum loss would be disastrous for the nation.”56

  • 57 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 2010, 19.
  • 58 United Nations – Special Rapporteur – James Anaya, A/HRC/12/34/Add.10, op. cit., 2009, 2.
  • 59 Council of Australian Governments, National Partnership Agreement on Closing the Gap in Ind (...)
  • 60 Department of Families, Housing, Community Services, and Indigenous Affairs, Closing the Ga (...)

35Though or because the referendum has not taken place yet, the world should realize that Australia is indeed a place of entrenched racism, a place where Aboriginal people’s dignity, confidence and self-respect are “severely undermined” by “negative perceptions within society”, a place where “historical patterns of racism” “continue to make their presence known today.”57 Indigenous rights are never a priority – as evidenced once again by the ever-postponed referendum – but racism goes far beyond indifference or contempt : it pervades every institution, service or life process, thus making Aboriginal people experience prejudice and discrimination on a daily basis and – a major cause for concern – maintaining “serious disparities between indigenous and non-indigenous parts of society.”58 The commitment required from the government to relentlessly fight racism should therefore be viewed in the context of its moral and international obligations as well as within the framework of the effort it must sustain to reduce the significant disadvantages faced by Aboriginal peoples in all socio-economic spheres. Today in Australia, indigenous people still have a life expectancy 17 years lower than non-indigenous people59. Their employment prospects are as slim as their chances of having a decent income, particularly since the end of the Community Development Employment Projects program. Their children are severely disadvantaged in terms of reading, writing and numeracy achievements and relatively few of them will finish high school. Their housing is often overcrowded and poor while severe housing shortage means that homelessness is a widespread phenomenon. Their communities produce some of the world’s highest rates of murder, violence and sexual abuse, women and children suffering particularly badly, and, while mandatory sentencing remains in different States, their people continue to experience alarmingly high levels of incarceration. This is what Aboriginal Australia still looks like indeed, and this, despite the “Closing the Gap” agreement60 which the Federal government and the Council of Australian Governments concluded in 2008.

  • 61 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 2010, 21.
  • 62 Mick Gooda, Statement by the Aboriginal and Torres Strait Islander Social Justice Commissio (...)

36The UN Special Rapporteur on the Rights of Indigenous Peoples has therefore consistently reminded Australia that addressing indigenous disadvantage should be one of its top priorities, and although he commended recent governments on establishing clear goals and devoting more funds to this purpose, he also pointed out on several occasions that “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 programs and developing culturally appropriate programs that incorporate or build on indigenous peoples’ own initiatives.”61 Still, Australian “governments do not have a clear understanding of what the principles of free, prior and informed consent and self-determination mean in a practical sense to Indigenous communities, or how to effectively and appropriately integrate them into their processes, policies and programs.”62

  • 63 See Department of Families, Housing, Community Services and Indigenous Affairs, Report of t (...)
  • 64 Commonwealth of Australia – NTER Review Board, Report of the NTER Review Board to t (...)
  • 65 Department of Families, Housing, Community Services and Indigenous Affairs, Report of the N (...)

37Meanwhile, the controversial Intervention has continued in the Northern Territory, though it must be acknowledged that the Rudd and Gillard governments have tried to answer some national and international criticisms. To better comply with the principle of self-determination, for instance, the Federal government organized extensive consultations with indigenous individuals and communities from June to August 2009 with a view to enacting reforms to the NTER63. Following this, it introduced a new scheme of income management to replace the one which targeted all Aboriginal people indifferently with one which targets only long-term recipients of unemployment benefits or people with a record of domestic violence or economic abuse. Moreover, the government introduced a piece of legislation into Parliament which eventually led, in June 2010, to the reinstatement of the Racial Discrimination Act in relation to the Intervention. For all that, Labor did not cancel or fundamentally alter the NTER scheme even though it was shown to impair the enjoyment of Aboriginal people’s human rights, stigmatize already stigmatized communities and strengthen racism among both the public and the media64. On the contrary, the Government introduced its “Stronger Futures” legislation in June 2012 so as to continue the Intervention for another ten years, arguing that it delivers extremely promising results in terms of access to food and safety for indigenous women and children65.

  • 66 Department of Families, Housing, Community Services and Indigenous Affairs, Closing the Gap (...)
  • 67 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 201 (...)
  • 68 Ibid., 19-20.
  • 69 United Nations – Committee on the Elimination of Racial Discrimination, CERD/C/AUS/CO/14, o (...)

38Apart from the fact that there are contradictory findings about the results of the NTER in terms of its stated objectives66, the problem with the government’s decision to pursue the Intervention as such is that, “even assuming improvements, there is no evidence that the rights-impairing discriminatory aspects of the NTER have been necessary.”67 Yet some of these aspects were maintained. The forced appropriation of the five-year leases was sustained, for instance, though it should be said that the government proceeded to both compensate landowners for the acquisition of these leases and reassure the communities about their final objectives. Thus, whether or not it was really to provide housing and upgrade services, tenancy management was taken from indigenous control. Worse, quite a few Aboriginal communities felt pressured into handing over ownership in a nationwide context of distrust and uncertainty. For no matter how often Commonwealth and State governments have been enjoined to “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”, “ownership and control of their lands and territories continue to be denied to many indigenous communities in Australia.”68 While the Declaration on the Rights of Indigenous Peoples states that native title rights exist simply by virtue of “traditional ownership or other traditional occupation or use” (art. 26), for instance, the Australian Native Title Act still requires evidence of continuous occupation or cultural connection, from the time of European contact, for Aboriginal people’s interests in lands to be recognized. The UN Committee on the Elimination of Racial Discrimination has therefore expressed concern69, once again, as far as Australia is concerned.

Conclusion

  • 70 Department of Foreign Affairs – Bob Carr, “UN Win a Big Thrill,” Sky News Live (New York), (...)
  • 71 Ibid.
  • 72 Tony Eastley & Lisa Millar, “Australia Wins Seat on UN Security Council,” ABC News, October (...)

39On October 19, 2012, news broke that Australia’s bid for a seat on the UN Security Council had been successful. With 140 favorable votes out of 193 member countries participating in the voting, Australia was elected in the first round of the ballot at UN headquarters in New York, along with Luxembourg and South Korea, before Argentina and Rwanda and at the expense of Finland which, as both another candidate in the Western European and Others Group and an active promoter of human rights, democracy developments and the rule of law, was the favorite to many in this highly competitive race. The Australian Minister for Foreign Affairs rejoiced. Hitting back at criticisms of the time and money spent on the bid – the campaign having cost no less than twenty-five million dollars over five years –, Bob Carr congratulated himself and other Australian diplomats on what he characterized straight after as a “big, juicy, decisive win”70. Australia will now have the opportunity to play a leadership role in world affairs and partake in crucial decisions across the world, top priorities currently being violence in Syria, UN engagement in Afghanistan and East Timor, international terrorism and nuclear arms proliferation. Beyond that, the country will have a chance to “hold [her] reputation up high”71, in Mrs Gillard’s words, to gain more visibility in the world, show more widely her “multiculturalism, the sophistication and competitiveness of [her] economy and the impressive style of [her] cities”, then eventually, change her often “rough and ready cliché-laden image.”72

  • 73 Department of Foreign Affairs – Bob Carr, op. cit.
  • 74 Department of Foreign Affairs, Australia – Candidate for the United Nations Security Counci (...)

40While the “world [is] saying ‘we see Australia as a good country, a fine global citizen,’” as Bob Carr has frequently repeated since the success of Australia’s bid73, the opportunity is also given to her to live up to her claim that she “respects human rights and promotes equality, dignity and self-determination,”74 including within her boundaries. One should hope that Australians will not take their UN success as an international endorsement of their domestic policies for it is nothing of the kind in fact. If it is most probably a gesture recognizing Australia’s strategic importance as a global actor, a strong marker of the country’s renewed partnership with the United Nations, a validation of the considerable departure that Labor secured from John Howard’s policy and an incentive to sustain the different efforts which have recently been made to better comply with human and international indigenous rights standards, it should not be seen as applause for remarkable conduct. Thanks to the work of various human rights bodies, indeed, the international community knows about such things as Aboriginal people’s socioeconomic disadvantage, Australia’s impairment of human rights in the Northern Territory, mandatory sentencing or land rights historical injustices. It knows about the continuing presence of the concept of race and potentially discriminatory clauses in the Constitution of a country which, besides, is a place of entrenched racism. Perhaps the general public ignores all that does not fit with the widespread image of a white Eden in the Antipodes but the United Nations and others know. Now is therefore a good time to show Aboriginal people that the international community is not a vague entity abroad where powerful people plot to impose their diktat but a place where human rights triumph. And also, to remind Australia that responsibility and power entail obligations and duties.

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United Nations – Special Rapporteur, – James ANAYA, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Addendum: Preliminary Note on the Situation of Indigenous Peoples in Australia, Human Rights Council’s Twelfth session, Agenda item 3, UN General Assembly, A/HRC/12/34/Add.10, October 28, 2009.

United Nations – Special Rapporteur, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Addendum: Situation of Indigenous Peoples in Australia, Human Rights Council’s Fifteenth session, Agenda item 3, UN General Assembly, A/HRC/15/37/Add.4, June 1, 2010.

“When Talk of Racism is Just not Cricket,” The Sydney Morning Herald, December 16, 2005.

WINDSCHUTTLE Keith, “A Depressing New Agenda for Aboriginal Politics,” Quadrant, June 2008.

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Notes

1 See for instance, Raoul Heinrichs, “There is no Compelling Explanation for Australia's UN Bid,” Sydney Morning Herald, February 29, 2012.

2 Kevin Rudd, A Discerning Conversation with Kevin Rudd : Things that Matter (Conversation between Former PM Kevin Rudd and Human Rights Lawyer Father Frank Brennan), Carillo Gantner Theatre, Sidney Myer Asia Centre, Melbourne, August 17, 2012.

3 Julia Gillard in “The 7.30 Report,” ABC News, ABC, October 5, 2010.

4 High Court of Australia, Mabo & Ors v State of Queensland [No.2] (1992) 175 CLR 1.

5 John Howard, “Practical Reconciliation,” in Michelle Grattan (ed.), Reconciliation: Essays on Reconciliation in Australia, Melbourne : Black Inc Bookman Press, 2000, 90.

6 Maureen Tehan, “The Allure of ‘Certainty’ : Wik, the Ten-Point Plan and the Native Title Amendment Act 1998 (Cth),” A Hope Disillusioned, an Opportunity Lost ? Reflections on Common Law Native Title and Ten Years of the Native Title Act, Melbourne University Law Review, 2003, 523.

7 John Howard in “The 7.30 Report,” ABC News, ABC TV, September 4, 1997.

8 United Nations – Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination – Australia, CERD/C/AUS/CO/14, Sixty-sixth session, April 14, 2005, para.16.

9 J. Hannaford, J. Huggins & B. Collins, “Review of the Aboriginal and Torres Strait Islander Commission,” Public Discussion Paper, June 2003, 8, 29.

10 Human Rights and Equal Opportunity Commission – William Jonas, Social Justice Report 2003, Sydney : HREOC, 2004, 105.

11 J. Hannaford, J. Huggins & B. Collins, op. cit., 5, 23.

12 John Howard quoted in “Clark Vows to Fight as ATSIC Scrapped,” The Sydney Morning Herald, April 15, 2004.

13 United Nations – Committee on the Elimination of Racial Discrimination, General Recommendation n°23 : Rights of Indigenous Peoples, UN Doc. A/52/18, Fifty-first session, August 18, 1997, article V, para.4(d).

14 Senate Select Committee on the Administration of Indigenous Affairs, “After ATSIC : Life in the Mainstream – Recommendations,” Senate, March 8, 2005.

15 William Jonas & Darren Dick, “Ensuring Meaningful Participation of Indigenous Peoples in Government Processes : The Implications of the Decline of ATSIC,” Dialogue (Academy of the Social Sciences in Australia, 2004), vol. 23, n°2, 7, 11.

16 Department of Immigration and Multicultural and Indigenous Affairs – Amanda Vanstone, “Opening Address,” Bennelong Society Conference, 2004, 1.

17 Aboriginal and Torres Strait Islander Commission, Annual Report 2001-2002, Woden (ACT) : ATSIC National Media and Marketing Office, 2002, 121-122 ; Jon Altman, “Practical Reconciliation and the New Mainstreaming: Will it Make a Difference to Indigenous Australians ?” Dialogue n°23, 2, Academy of the Social Sciences in Australia, 2004, 43.

18 ATSI Act 2005, section 3.

19 W. Jonas & D. Dick, op. cit., 11 ; United Nations, Declaration on the Rights of Indigenous Peoples, art. 3.

20 Department of Reconciliation & ATSI Affairs – John Herron, The Australian Contribution 1999 – Statement on behalf of the Australian Government at the 17th session of the United Nations Working Group on Indigenous Populations, July 29, 1999, Canberra : AGPS, 1999, 11.

21 Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights : Ways to implement the National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights, one of four National Strategies in the Roadmap for Reconciliation, Canberra : CAR, 2000, 14.

22 Federico Mayor Zaragoza, 1999, quoted in Human Rights and Equal Opportunity Commission – William Jonas, Social Justice Report 2002, Sydney : HREOC, 2003.

23 Human Rights and Equal Opportunity Commission, ibid., 48.

24 For instance, the UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 1970.

25 United Nations – Permanent Forum on Indigenous Issues, Frequently Asked Questions : Declaration on the Rights of Indigenous Peoples United Nations Permanent Forum on Indigenous Issues, <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenous declaration.pdf>, accessed July 2012.

26 Amnesty International, “Public Statement – Submission on Juvenile Mandatory Sentencing in Australia,” News Service 030/00, February 14, 2000 ; United Nations – High Commissioner for Human Rights – P. N. Bhagwati (on behalf of), Report of Justice P. N. Bhagwati, Regional Advisor for Asia and the Pacific : Mission to Australia, 24 May to 2 June 2002 : Human Rights and Immigration Detention in Australia, July 31, 2002.

27 J. Hannaford, J. Huggins & B. Collins, op. cit., 37.

28 Human Rights and Equal Opportunity Commission – William Jonas, op. cit., 2003, 134.

29 John Howard, Statement to the Millennium Summit of the United Nations, Australian Mission to the UN, New York, September 6, 2000.

30 “When Talk of Racism is Just not Cricket,” The Sydney Morning Herald, December 16, 2005.

31 United Nations – Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee Australia, CERD/C/56/Misc.42/rev.3, Fifty-sixth session, March 24, 2000.

32 Aboriginal and Torres Strait Islander Commission (ATSIC), “Everybody’s Talking… TREATY,” ATSIC News, February 2001, 55.

33 See also the United Nations – Committee on the Rights of the Child, Concluding Observations on Australia, Doc : CRC/C/15/Add.79, October 10, 1997.

34 Australian Law Reform Commission & HREOC, Seen and Heard : Priority for Children in the Legal Process, November 1997, par.19.60. See also Chris Cuneen & David McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody : An Evaluation of the Implementation of the Recommendations of the Royal Commission on Aboriginal Deaths in Custody, Canberra : ATSIC, 1997.

35 Aboriginal and Torres Strait Islander Commission, Aboriginal and Torres Strait Islander Peoples and Australia’s Obligations under the United Nations International Covenant on Civil and Political Rights – Report submitted by ATSIC to the United Nations Human Rights Committee, Canberra : ATSIC, 2000, 20.

36 International Convention on the Elimination of All Forms of Racial Discrimination (art. 2.1) ; International Covenant on Civil and Political Rights (art. 2.1) ; International Covenant on Economic, Social and Cultural Rights (art. 3).

37 Dato Param Cumaraswamy quoted by the Aboriginal and Torres Strait Islander Commission, “Everybody’s Talking… TREATY,” op. cit., 53.

38 Department of Immigration and Multicultural and Indigenous Affairs – Philip Ruddock, “Our Path Together,” Statement, 22 May 2001, Canberra : AGPS, 2001, 19.

39 Human Rights and Equal Opportunity Commission – William Jonas, Report to the UN Human Rights Commission, 2000, quoted by Debra Jopson, “Jailing Powers under Fire at UN,” The Sydney Morning Herald, July 18, 2000, 7.

40 Ibid. See also C. Cuneen & D. McDonald, op. cit., 65.

41 Patricia Anderson & Rex Wild, ‘Ampe Akelyernemane Meke Mekarle’ Little Children are Sacred : Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Darwin : NT Government, 2007.

42 United Nations – Special Rapporteur – James Anaya, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People – Addendum : Preliminary Note on the Situation of Indigenous Peoples in Australia, Human Rights Council’s Twelfth session – Agenda item 3, UN General Assembly, A/HRC/12/34/Add.10, October 28, 2009, Appendix B, 25.

43 United Nations – Special Rapporteur – James Anaya, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Communications to and from Governments, Human Rights Council’s Ninth session, A/HRC/9/9/Add.1, August 15, 2008.

44 United Nations – Human Rights Committee, Concluding Observations of the Human Rights Committee Australia, Ninety-fifth session, CCPR/C/AUS/CO/5, May 7, 2009, para.14.

45 United Nations – Committee on the Elimination of Racial Discrimination, General Recommendation n°32 : The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination, CERD/C/GC/32, Seventy-fifth session, September 24, 2009, para.16.

46 International Convention on the Elimination of All Forms of Racial Discrimination, article 1(4).

47 United Nations – Special Rapporteur – James Anaya, A/HRC/12/34/Add.10, op. cit., 2009, 32.

48 John Howard, Opening Speech of Australian Reconciliation Convention, Australasian Legal Information Institute, May 26, 2000.

49 House of Representatives, Apology to Australia’s Indigenous Peoples, Canberra : Parliament House, February 13, 2008.

50 United Nations – Special Rapporteur – James Anaya, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People – Addendum: Situation of Indigenous Peoples in Australia, Human Rights Council’s Fifteenth session – Agenda item 3, UN General Assembly, A/HRC/15/37/Add.4, June 1, 2010, 15, 19.

51 Declaration on the Rights of Indigenous Peoples – Resolution 61/295 adopted by the General Assembly at its 107th Plenary Meeting, September 13, 2007, art. 18.

52 Megan Davis, Recognising ATSI People in the Constitution, Castan Centre for Human Rights Law, Monash University, 2011.

53 Pat Dodson, Mark Leibler et al., Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, Canberra : Commonwealth of Australia, January 2012.

54 Marcia Langton & Megan Davis, “An Answer to the Race Question,” The Australian, January 21, 2012.

55 For instance Keith Windschuttle, “A Depressing New Agenda for Aboriginal Politics,” Quadrant, June 2008 ; Patrick McCauley, “The Grim Legacy of Compassion,” The Weekend Australian, January 14-15, 2012.

56 M. Langton & M. Davis, op. cit.

57 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 2010, 19.

58 United Nations – Special Rapporteur – James Anaya, A/HRC/12/34/Add.10, op. cit., 2009, 2.

59 Council of Australian Governments, National Partnership Agreement on Closing the Gap in Indigenous Health Outcomes, Canberra : Commonwealth, 2008, 4.

60 Department of Families, Housing, Community Services, and Indigenous Affairs, Closing the Gap on Indigenous Disadvantage : The Challenge for Australia, Canberra : Commonwealth, 2009.

61 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 2010, 21.

62 Mick Gooda, Statement by the Aboriginal and Torres Strait Islander Social Justice Commissioner Australian Human Rights Commission to the Expert Mechanism on the Rights of Indigenous Peoples, Geneva, July 11-15, 2011.

63 See Department of Families, Housing, Community Services and Indigenous Affairs, Report of the Northern Territory Emergency Response Redesign Consultations, Canberra : Commonwealth of Australia, 2009.

64 Commonwealth of Australia – NTER Review Board, Report of the NTER Review Board to the Government, Canberra : Commonwealth of Australia, October 12, 2008, 9.

65 Department of Families, Housing, Community Services and Indigenous Affairs, Report of the Northern Territory Emergency Response Redesign Consultations, op. cit.

66 Department of Families, Housing, Community Services and Indigenous Affairs, Closing the Gap in the Northern Territory : January 2009 to June 2009, Whole of the Government Monitoring Report Part One, Overview of Measures, Canberra : Commonwealth of Australia, 2009, 31-33.

67 United Nations – Special Rapporteur – James Anaya, A/HRC/15/37/Add.4, op. cit., 2010, 32.

68 Ibid., 19-20.

69 United Nations – Committee on the Elimination of Racial Discrimination, CERD/C/AUS/CO/14, op. cit., 2005, para.16.

70 Department of Foreign Affairs – Bob Carr, “UN Win a Big Thrill,” Sky News Live (New York), October 19, 2012.

71 Ibid.

72 Tony Eastley & Lisa Millar, “Australia Wins Seat on UN Security Council,” ABC News, October 19, 2012.

73 Department of Foreign Affairs – Bob Carr, op. cit.

74 Department of Foreign Affairs, Australia – Candidate for the United Nations Security Council 2013-14. Making a Difference for the Small and Medium Countries of the World, Canberra : Commonwealth, 2012, 27.

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Ludivine Royer, « Using One’s Right of Inspection: Australia, the United Nations, Human Rights and Aboriginal People », Revue LISA/LISA e-journal [En ligne], vol. XII-n°7 | 2014, mis en ligne le 30 novembre 2014, consulté le 24 avril 2017. URL : http://lisa.revues.org/6927 ; DOI : 10.4000/lisa.6927

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Ludivine Royer

Université de La Réunion, Saint-Denis, France. Ludivine Royer est Maître de conférences à l’Université de La Réunion. Diplômée de l’Université Paris-IV Sorbonne et de l’École des Hautes Études en Sciences Sociales, elle réfléchit aux relations coloniales, postcoloniales et néocoloniales dans l’espace du Commonwealth à partir d’un double point de vue, ethnologique et sociopolitique. Depuis une dizaine d’années, ses recherches portent en particulier sur l’Australie et ses autochtones, en alternant recherche documentaire et travaux de terrain.

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