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Huntsman, Carolyn --- "Experiencing the United Nations: A Perspective from an Indigenous Peoples' Organisation" [1989] AboriginalLawB 48; (1989) 1(40) Aboriginal Law Bulletin 7


Experiencing the United Nations:
A Perspective from an Indigenous Peoples' Organisation

by Carolyn Huntsman

The rights of Indigenous peoples in international law are presently receiving stronger recognition through the work of the United Nations human rights agencies. In Geneva in 1989, the United Nations (UN) continued its work in setting standards which are to operate as guidelines to member nations, indicating the ways in which the rights of Indigenous peoples should be respected or promoted.

NAILSS, the National Aboriginal and Islander Legal Services Secretariat, was present at the 1989 meetings of the UN human rights fora, maintaining its involvement in this standard setting process. NAILSS is a non-governmental organisation (NGO) with level 11 consultative status before UN human rights fora. This means that NAILSS has speaking rights before the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (the "Sub-Commission"), as well as the UN Human Rights Commission and its parent body, the Economic and Social Council. There is also the Working Group on Indigenous Populations (WGIP) set up by the Sub-Commission to consider the rights of indigenous peoples.

In 1989, NAILSS stressed that any international standards evolved by the UN could not be enforced in Australia whilst the state governments remained unaccountable. Although the Federal Government attends the UN and reports upon improvements in its policies and practices, state government policies which so affect our indigenous peoples are outside the scrutiny of the UN.

NAILSS Calls for the establishment o f Indigenous Ombudsman

Before the Working Group, NAILSS called for the establishment of the office of International Indigenous Ombudsman, stating that such an office could be set up now to protect indigenous people and to stop the erosion of what little rights remain. Such an office, NAILSS argued, could immediately protect indigenous rights (pending the completion of the draft Declaration) and aid both indigenous people and national governments by being informative about the standards of behaviour that are expected of government. As NAILSS said to the Working Group:

We cannot delay any longer the process of protecting what little we now have while we wait for the `imagined' final text to emerge. The future has to be now, and not tomorrow. Any process of power sharing will have to take time but we cannot wait and ignore the erosions of our rights that continue to occur now.[1]

A Declaration is the first stage in the standard setting process. A Declaration, which sets out the minimum level of agreed standards or principles, has moral force but is not legally binding on signatories. A Declaration is the first stage toward the establishment of a Convention which is legally binding on the signatories.

"Cooperative Federalism"

The Working Group was informed by NAILSS that assertions of intent or policy programs by the Australian National Government must be evaluated against the reality of "cooperative federalism". Whilst the National Government has, since 1967, had power to legislate in the area of Aboriginal Affairs, it shared its legislative competence in this area with the state (regional) governments. These regional governments have legislative power in most areas of day-to-day government, for example, education, health, police, prisons, land administration, and child welfare. These are the areas in which the living conditions and rights of indigenous peoples are directly affected, yet it has been these areas that the state governments implement laws and policies which are in conflict with the standards being evolved in the international community. The National Government of Australia can stand in the UN and mouth platitudes of good intent which are meaningless when they refuse to interfere with the practices of the state governments.

The Working Group was informed of the progress of the Royal Commission into Aboriginal Deaths in Custody, noting the Commission's finding of genocide in the Malcolm Smith case (further discussed below). The Working Group was also informed of Justice Smart's recent decision in the NSW Supreme Court that the gaols of one State, (Queensland) were oppressive to Aboriginal persons and that Aboriginal prisoners were subjected to racial slurs and abuse from prison wardens.[2]

NAILSS' speech before the Sub-Commission under Agenda Item 6 "The Violation of Human Rights and Fundamental Freedoms" cited an example of the attacks by a State Government on indigenous rights. Details were given of the NSW Greiner Government's Green Paper, "New Directions in Aboriginal Affairs", which seeks to mainstream Aboriginal services and represents a return to the old policies of assimilation. It revokes any moves towards self-determination. In addition the Property Services Corporation Bill, which will cause disposable Crown land to be transferred to a Government Corporation (thereby placing previously claimable land outside the jurisdiction of the present Land Rights Act ), was revealed as a move by the State Government to avoid the operation of the land rights legislation.

Details of governmental interference with the Fingal Aboriginal Community were given by NAILSS under agenda item 6. Massive tourist development was proposed for the peninsula where the community is located, without any consultation with the Fingal Community. The proposals included the cutting of a new river mouth through the Community. The Community, two years previously, had lodged land claims over the peninsula, but voluntarily withdrew them after the Government promised to protect the land for the benefit of the general public under a special plan of management which was to have Aboriginal representation on the governing board. After the land claims were withdrawn the State Government repudiated the agreement. The Greiner Government stopped construction of houses on Aboriginal land after the Community refused to lease one of the sites to a resort developer. The Greiner Government also intervened in local government processes to stop the construction, at Fingal, of a special hostel for aged Aboriginal people. This was seen as another measure by the Greiner Government to force the dispersal of the Community for the purpose of fostering tourist development. The government has encouraged a developer to build a marina for luxury boats on a wetlands area still used by the Community as a traditional food gathering area. The paper by NAILSS concluded:

The Fingal community's experience is not unusual. In other parts of Australia, lands inhabited and claimed by Aborigines and Torres Strait Islanders are used as military target ranges, rocket testing sites, uranium mines and garbage dumps. Until the Australian Government is required to report on the activities of it's constituent regional governments, continuing violations of the rights and freedoms of the indigenous people of Australia will remain hidden from proper international scrutiny.[3]

Under Agenda Item 9, "Human Rights of Detainees", NAILSS detailed the human rights abuses revealed by the Royal Commission into Aboriginal Deaths in Custody. The UN was told that 21% of deaths in custody between 1980-1988 were Aboriginal people, although Aboriginal people make up only 1.46% of the Australian population.[4] Due to the federal nature of the Australian political system, the Royal Commission had to be jointly set up by State and Federal Governments. It is the State Governments which will have to implement any changes recommended by the Royal Commission. NAILSS noted that to date the response of the State Governments has not given much cause for hope:

A legal challenge in Western Australia to the constitutionality of the Royal Commission was funded by the Western Australian Government, which was also a party to the proceedings (thereby challenging its own letters patent). Presently, the Queensland Government is challenging the Commissioners' jurisdiction to look into the underlying causes for the deaths - a vital part of the Royal Commission's role. The Queensland Government is attempting to stifle information presented to the Royal Commission by NAILSS.[5]

Criminal justice

NAILSS detailed the abuse of the human rights of Aboriginal persons by the criminal justice systems of all states of Australia, describing the over-policing of Aboriginal communities and the discriminatory use of laws against Aborigines. In particular, the offence of public drunkenness is used to detain Aboriginal persons in police lockups. Once detained in the police cell, the Aboriginal prisoner's welfare is at the discretion of the police officer. The Royal Commission has found that a high level of disregard is shown to Aboriginal prisoners by police guards. Relevantly, whilst a non-Aboriginal person is more likely to die in prison than police custody (68% of deaths), an Aboriginal person is more likely to die in police custody (60%).[6]

The United Nations was told that violation of the human rights of Aboriginal persons was due to the policy of assimilation, "the declared policy of Australian Governments in the recent past, and often the undeclared practice today". The UN was told that the Royal Commission found that the policy of assimilation, which saw Aboriginal people taken away from their families and placed in white foster homes, or incarcerated in juvenile institutions, amounted to a policy of genocide.[7]

The Royal Commission further found that the destructive effects of the policy of assimilation contribute to the number of Aboriginal people who are in custody as well as to Aboriginal deaths in custody. NAILSS told the Sub-Commission that the violation of human rights of Aboriginal people in the criminal justice system begins with the violation of the rights of Aboriginal persons to their culture, including family culture. The welfare departments do not recognise the caring environment provided by the extended Aboriginal family, and cultural differences are not understood. No value is placed on the care given children by Aboriginal families; instead the children are classified as being "at risk" and are placed in institutional care, far away from their homes and culture. For example, in the State of NSW, Aboriginal children make up at least 25% of the institutional population, although their proportion in NSW's 10-17 year old population is only about 1.8%.[8]

Use of force by law enforcement officials

The excessive use of force against Aboriginal persons by Australian law enforcement officials was described by NAILSS. NAILSS cited the example of one case before the Royal Commission;

where an Aboriginal prisoner who suffered a serious heart condition was `restrained' by several prison officers, by being handcuffed face down on the floor with a belt securing his ankles and another belt securing the handcuffs to the ankle restraint. In the struggle he stopped breathing and no effort was made by prison officers to resuscitate him.[9]

The use of force by police or prison authorities is unacceptably sanctioned in Australia, and such use of force is against international standards.[10]

The recent fatal shooting of Mr. David Gundy, an innocent Aboriginal man, by SWOS (the para military unit of the NSW police force), and the subsequent finding by a Coronial Inquest that reasonable force had been used, were also referred to as exemplary of fundamental breaches of human rights.

It is the experience of NAILSS, as an NGO with speaking rights at the UN, that the presentation of non-Governmental information about Australia is essential in the process of the evolution of international human rights standards, so that such standards can be grounded in reality. The presentation of non governmental information to the UN is also essential if the supervisory role that the UN exercises over national governments in the area of human . rights is to work. The relevance of such information is clear when one considers the incomplete picture which the UN has received from the Australian Government to date. The Australian Government has presented a picture of Federal Government reform which obscures the reality of its own acquiescence to the abuses of human rights of Australian persons which are perpetrated by the State Governments of Australia.


[1] Address by NAILSS to WGIP, Agenda Item 5; "Standard Setting Activities: Australian Government Treaty Proposal.

[2] Binge & Ors v Bennett & Anor, reported in [1989] AboriginalLB 42; 2(39)pg17.

[3] NAILSS Agenda Item 6; "The Violation of Human Rights and Fundamental Human Freedoms", written submission to Sub-Commission for Prevention of Discrimination and Protection of Minorities,, Geneva ;1989.

[4] Royal Commission; into Aboriginal Deaths in Custody Interim Report of Commissioner Muirhead 1988, p90. Cited in NAILSS address under Agenda Item 9; "Human Rights of Detainees", Geneva, 1989

[5] NAILSS address under Agenda Item 9; Geneva 1989

[6] Royal Commission into Aboriginal Deaths, in Custody Interim Report of Commissioner Muirhead 1988, p90. Cited m NAILSS address under Agenda Item 9; "Human Rights of Detainees", Geneva, 1989.

[7] Royal Commission into Aboriginal Deaths: in Custody, Report of the Inquiry into the death of Malcolm Charles Smith, 1988, p75. Cited in NAILSS address under Agenda Item 9.

[8] Ibid, p79. Cited in NAILSS address under Agenda Item 9.

[9] Royal Commission into Aboriginal Deaths in Custody Report of the Inquiry, into the death of Charles Sidney Michael, 1988. Cited in NAILSS address under Agenda Item 9.

[10] As enunciated in Article 3 of the Code of Conduct for Law Officials. Also provisions of the International Bill of Rights.


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