36/46/Add.2 Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia
Document Type: Final Report
Date: 2017 Aug
Session: 36th Regular Session (2017 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-13464(E)
Human Rights Council Thirty-sixth session
11-29 September 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the rights of indigenous peoples, in which she examines the
human rights situation of Aboriginal and Torres Strait Islander Peoples, on the basis of her
visit to Australia from 20 March to 3 April 2017.
In the report, the Special Rapporteur observes that the policies of the Government do
not duly respect the rights to self-determination and effective participation; contribute to the
failure to deliver on the targets in the areas of health, education and employment; and fuel
the escalating and critical incarceration and child removal rates of Aboriginal and Torres
Strait Islanders.
A comprehensive revision of those policies needs to be a national priority, and the
consequences and prevalence of intergenerational trauma and racism must be
acknowledged and addressed.
United Nations A/HRC/36/46/Add.2
A/HRC/36/46/Add.2
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Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia*
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Background on Aboriginal and Torres Strait Islander peoples ..................................................... 3
III. International human rights instruments and mechanisms .............................................................. 4
IV. National legal and institutional framework ................................................................................... 4
V. Principal human rights concerns ................................................................................................... 5
A. Constitutional recognition, treaty and truth commission ...................................................... 5
B. Racism and racial discrimination .......................................................................................... 6
C. Human rights legislative framework ..................................................................................... 7
D. Self-determination and participation ..................................................................................... 7
E. Indigenous Advancement Strategy ....................................................................................... 7
F. National Congress defunding ................................................................................................ 8
G. Closing the Gap strategy ....................................................................................................... 9
H. Health services ...................................................................................................................... 9
I. Access to education .............................................................................................................. 10
J. Unemployment and housing shortage ................................................................................... 10
K. Compulsory income management......................................................................................... 11
L. Incarceration and the administration of justice ..................................................................... 12
M. Removal of children ............................................................................................................. 15
N. Stolen Generations and reparation ........................................................................................ 16
O. Violence against women ....................................................................................................... 16
P. Political participation ............................................................................................................ 16
Q. Land rights and native title ................................................................................................... 17
VI. Conclusions and recommendations ............................................................................................... 18
* Circulated in the language of submission only.
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I. Introduction
1. The Special Rapporteur on the rights of indigenous peoples visited Australia from
20 March to 3 April 2017. She expresses her appreciation to the Government of Australia
for the support provided throughout the visit.
2. During the visit, the Special Rapporteur met with high-level representatives of the
federal, state and territory governments, members of Parliament, the Parliamentary Joint
Committee on Human Rights, members of the judiciary, the National Congress of
Australia’s First Peoples, the Australian Human Rights Commission and a broad range of
Aboriginal and Torres Strait Islander organizations and representatives and civil society
organizations working for their rights.
3. The Special Rapporteur held meetings in Western Australia, the Northern Territory,
Queensland, the Australian Capital Territory, Victoria and New South Wales. She met with
a number of indigenous communities, including in Broome, Darwin and the Torres Strait,
to hear directly from indigenous peoples about their concerns and priorities. She also
visited two detention facilities, Bandyup Women’s Prison in Perth and Cleveland Youth
Detention Centre in Townsville, and the Children’s Koori Court in Melbourne.
4. Among the priorities for the visit, the Special Rapporteur reviewed the progress
made in implementing recommendations made by her predecessor during his country visit
to Australia in 2009 (A/HRC/15/37/Add.4), noting at the outset the limited progress that
had been made by the Government to implement those recommendations.
II. Background on Aboriginal and Torres Strait Islander peoples
5. The history of the continent’s first inhabitants, the Aboriginal Australians, goes back
more than 50,000 years before the arrival or European settlers. At the time of colonization
in 1788, it is estimated that 750,000 to 1,000,000 people lived in Australia.
6. British settlers declared the land “terra nullius” as they considered that Aboriginal
Australians were nomads with no concept of land ownership. The loss of traditional lands,
food sources and water resources was often fatal, particularly to communities already
weakened by disease. Aboriginal Australians groups had a deep spiritual and cultural
connection to the land. When they were forced away from traditional areas, the cultural and
spiritual practices necessary to their cohesion and well-being were destroyed.
7. During colonization, Aboriginal Australians were murdered, raped and enslaved for
forced labour. Massacres occurred across Australia and, in the course of frontier conflict, it
is estimated that about 2,000 British colonizers and over 20,000 indigenous Australians
suffered violent deaths.1
8. Aboriginal people were moved to mission stations under assimilation policies to be
taught European beliefs and used as cheap labour. The term “Stolen Generations” refers to
Aboriginal and Torres Strait Islander children who were forcibly removed from their
families and communities by government, welfare or church authorities and placed into
institutional care or with non-indigenous foster families. The forced removals began around
the mid-1800s and continued until the 1970s.
9. In 2008, the federal Government formally apologized to the Aboriginal and Torres
Strait Islander Peoples and particularly to the Stolen Generations for the grief and suffering
inflicted by laws and policies of successive Parliaments and Governments.
10. Today, indigenous peoples are estimated to constitute approximately 3 per cent of
the Australian population, or 670,000 individuals. More than 400 distinct indigenous
Australian peoples have been identified through their ancestral languages. The largest
1 See http://aiatsis.gov.au/explore/articles/first-encounters-and-frontier-conflict.
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indigenous populations live in the States of New South Wales and Queensland. Aboriginal
and Torres Strait Islanders comprise 30 per cent of the population of the Northern Territory,
the highest proportion of any state or territory. While Aboriginal and Torres Strait Islanders
are more likely to live in remote rural parts of the country than the non-indigenous
population, the majority of the indigenous population today lives in urban areas.
11. Stark disparities and social disadvantage persist between indigenous and non-
indigenous Australians across all quality of life indicators. 2 Indigenous Australians
generally experience significantly lower standards of health, education, employment and
housing, and are drastically overrepresented compared with non-indigenous people in the
criminal justice system, among children in out-of-home care and among victims of family
violence. The Special Rapporteur deeply regrets that many of those indicators have
deteriorated significantly since her predecessor’s 2009 visit, and that numerous innovative
and effective indigenous community-led initiatives established in recent years remain
underfunded.
III. International human rights instruments and mechanisms
12. Australia has ratified most international human rights treaties. However, it has yet to
become a party to the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, the International Convention for the
Protection of All Persons from Enforced Disappearance, the Optional Protocol to the
Convention on the Rights of the Child on a communications procedure and the Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights.
13. The Government has publicly indicated its intention to ratify before the end of 2017
the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which it signed in 2009.
14. In 2009, Australia endorsed the United Nations Declaration on the Rights of
Indigenous Peoples. It has not ratified the International Labour Organization Indigenous
and Tribal Peoples Convention, 1989 (No. 169).
15. Australia still maintains reservations to article 10 of the International Covenant on
Civil and Political Rights on the humane treatment of people deprived of their liberty and to
article 37 (c) of the Convention on the Rights of the Child on juvenile justice. According to
the reservations, Australia restricts acceptance of its obligation to separate accused persons
from convicted persons and to separate children from adults in prison.3 The reservations
have been maintained despite repeated calls for their withdrawal by the Human Rights
Committee and the Committee on the Rights of the Child.4
16. In November 2015, the domestic rights record of Australia was reviewed for the
second time as part of the universal periodic review. While the Government affirmed that it
would ensure that laws and practical actions gave effect to the aims of the Declaration, it
did not accept the recommendations to develop a national strategy to implement it.5
IV. National legal and institutional framework
17. The Australian Federal Constitution came into effect on 1 January 1901. It explicitly
discriminated against “aboriginal natives” by excluding them from population counts. That
reference was removed by a decision supported by a 90 per cent majority of the electorate
in the 1967 referendum, which also amended the Constitution to allow the Federal
2 www.abs.gov.au/aboriginal-and-torres-strait-islander-peoples.
3 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
4&chapter=4&clang=_en and https://treaties.un.org/Pages/ViewDetails.aspx?src=
TREATY&mtdsg_no=IV-11&chapter=4&clang=_en.
4 See CRC/C/AUS/CO/4, para. 10; and CCPR/C/AUS/CO/5, para. 9.
5 See A/HRC/31/14, paras. 136.85-136.87; and A/HRC/31/14/Add.1, paras. 23-28 and 138.
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Parliament to legislate for “people of any race for whom it is deemed necessary to make
special laws”. The Constitution contains few provisions for the protection of human rights,
and only five explicit provisions on individual rights.6
18. Each of the six states and two territories in the Federation has its own parliament,
government and laws. Each of the states have constitutions that recognize Aboriginal
peoples, and the Queensland constitution specifically also recognizes Torres Strait Islander
peoples.
19. The Council of Australian Governments is an intergovernmental entity, chaired by
the Prime Minister, comprising the federal, state and territory governments. Its role is to
manage matters of national significance or matters that need coordinated action by all
Governments of Australia. 7 The “Closing the Gap” strategy on reducing indigenous
disadvantage in health, education and unemployment was adopted jointly by the Council in
2008 and enjoys bipartisan support. The Prime Minister presents an annual national
progress report to Parliament.8
20. The Australian Human Rights Commission is an independent national human rights
institution with statutory responsibilities under the federal Australian Human Rights
Commission Act 1986, the Racial Discrimination Act 1975 and the Native Title Act 1993.
The Aboriginal and Torres Strait Islander Social Justice Commissioner monitors the
enjoyment and exercise of human rights for indigenous Australians and tables an annual
report in Parliament.9 On 1 April 2017, the Special Rapporteur was delighted to meet with
June Oscar, the first indigenous woman to take up the position of Aboriginal and Torres
Strait Islander Social Justice Commissioner.
21. The Parliamentary Joint Committee on Human Rights is established by the Human
Rights (Parliamentary Scrutiny) Act 2011. Its main function is to examine all bills and
legislative instruments for compatibility with the seven core human rights treaties to which
Australia is a party, and to report to Parliament on its findings.10 The Special Rapporteur
was pleased to meet with the Committee members and discuss with them their important
findings in their review of the “Stronger Futures” legislation in the Northern Territory and
their inquiry on proposed amendments to the Racial Discrimination Act.
V. Principal human rights concerns
A. Constitutional recognition, treaty and truth commission
22. The Special Rapporteur commends the bipartisan political support since 2011 for
ensuring recognition of Aboriginal and Torres Strait Peoples in the Constitution. The
consultations, led by the Referendum Council11 through a series of dialogue meetings with
indigenous representatives across the country, play a key role in informing that process.
The Special Rapporteur met with the Co-Chairs of the Referendum Council and briefly
took part in the consultation in Cairns.
23. Constitutional recognition of indigenous peoples is of fundamental importance as it
celebrates the history and cultural heritage of the First Peoples of Australia and provides a
key measure of reconciliation by acknowledging to their role in the national identity. While
recognizing the complexities constitutional change entail (i.e. requiring the majority vote
both of the population and of the States), the Special Rapporteur notes that the government
initiative has dragged on for nearly a decade. Already at the time of her predecessor’s visit
in 2009, the Government had recognized the need for constitutional recognition.
6 See www.humanrights.gov.au/how-are-human-rights-protected-australian-law.
7 See www.coag.gov.au/about-coag.
8 See http://closingthegap.pmc.gov.au/.
9 See www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice.
10 See www.aph.gov.au/joint_humanrights.
11 See www.referendumcouncil.org.au/.
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24. Indigenous peoples informed the Special Rapporteur about complimentary proposals
to negotiate treaties with the Government and to establish a truth commission to ensure
better public recognition of the structural powerlessness inflicted through history. Such
measures would pay tribute to the unique role of Aboriginal and Torres Strait Islanders in
Australian society, recognize their rights and contribute to better public awareness of how
past policies and practices have conditioned and curtailed their present participation in
Australian society.
25. The Special Rapporteur notes as very positive that the governments of Victoria,
South Australia and the Northern Territory are already leading initiatives to seek a treaty
with Aboriginal peoples.
26. After her visit, the Special Rapporteur was informed of the outcome of the
consultation process adopted on 26 May 2017, referred to as “the Uluru Statement of the
Heart”. It calls for the establishment of a “First Nations Voice” enshrined in the
Constitution and of a “makarrata” commission to supervise an agreement process between
governments and First Nations that would include truth-telling about Aboriginal and Torres
Strait Islander peoples’ history.12 The Referendum Council presented its final report to the
Prime Minister and the Leader of the Opposition on 30 June 2017.
B. Racism and racial discrimination
27. During the visit, the Government regretfully decided for the second time since 2014
to pursue a bill to amend section 18C of the Racial Discrimination Act. The Parliamentary
Joint Committee on Human Rights reviewed the Act in its comprehensive inquiry and
report, presented in February 2017, on whether the it imposes unreasonable restrictions on
freedom of speech.13
28. The Special Rapporteur was further disheartened by the fact that the Government
had chosen to launch the bill on 21 March, the International Day for the Elimination of
Racial Discrimination. The proposed changes to the provisions would replace the terms
“offend, insult, humiliate” with the term “harass”, and would include the notion of the
“reasonable member of the Australian community” as the standard by which any acts would
be judged, rather than by members of the affected community. Indigenous organizations
were excluded from participating during the Senate debate on the draft bill. The draft bill
was defeated in the Senate, which hopefully marks the end of the matter.
29. While recognizing the need to balance the right to freedom of expression with the
protection against racial discrimination, the Special Rapporteur wishes to underline that the
debate on this issue has been hugely damaging for the trust that indigenous peoples have in
the Government. It has also sent the unfortunate signal to the public and the media that
racial vilification is permissible and risks undermining efforts by the Government to seek
reconciliation with Aboriginal and Torres Strait Islander peoples.
30. The Special Rapporteur found deeply disturbing the numerous reports on the
prevalence of racism against Aboriginal and Torres Strait Islander Peoples. Racism
manifests itself in different ways, ranging from public stereotyped portrayals as violent
criminals, welfare profiteers and poor parents, to discrimination in the administration of
justice. Aboriginal doctors and patients informed the Special Rapporteur about their
experiences of racism within the medical sector and their reluctance to seek services from
mainstream medical providers. Institutional racism has been identified in the National
Aboriginal and Torres Strait Islander Health Plan (2013-2023) and its implementation plan
as a significant barrier in the delivery of health care.14 Support for Aboriginal and Torres
Strait Islander managed medical services is indispensable for improving health indicators
12 See www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_
From_The_Heart_0.PDF.
13 See www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/
FreedomspeechAustralia.
14 See www.health.gov.au/natsihp.
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and overcoming disadvantage. Greater cultural awareness raising among non-indigenous
medical professionals is also required.
31. There are also more subtle elements of racism stemming from the failure to
recognize the legacy of two centuries of systemic marginalization. The mainstream
education system contains inadequate components on Aboriginal and Torres Strait Islander
history and the impact of colonization. The non-recognition of the socioeconomic exclusion
and the impact of intergenerational trauma on indigenous peoples continue to undermine
reconciliation efforts. In order to truly recognize the situation of Aboriginal and Torres
Strait Islanders today, there needs to be much greater public awareness of their perspectives
on history and the consequences of past policies and legislation, including the long-term
damage and rupture of social bonds caused by the forced removal and institutionalization of
their children.
C. Human rights legislative framework
32. Australia does not have a bill of rights. In view of the ongoing difficulties in
harmonizing international human rights obligations in federal, state and territory legislation,
the Special Rapporteur considers that a more comprehensive human rights legislative
framework would provide stronger protection for the rights of indigenous peoples.
33. The Special Rapporteur notes as positive that developments at the state level are
leading the way, notably through the Human Rights Act 2004 of the Australian Capital
Territory and the Charter of Human Rights and Responsibilities Act 2006 (Victoria). She
was furthermore encouraged to hear that the Human Rights Act 2004 was recently amended
to insert a specific provision to protect the cultural rights of Aboriginal and Torres Strait
Islanders, with specific reference to the United Nations Declaration on the Rights of
Indigenous Peoples.
D. Self-determination and participation
34. When Australia officially endorsed the Declaration in 2009, the Government stated
its intent to reset relations between indigenous and non-indigenous Australians and to build
trust in order to work together to overcome the legacy of the past and shape the future
together. Furthermore, in its pledge as part of its candidacy to become a member of the
Human Rights Council for the period 2018-2010, Australia committed itself to giving
practical effect to the outcome document of the Declaration and the World Conference on
Indigenous Peoples.
35. Self-determination is a fundamental element of the Declaration whereby indigenous
peoples have the right to determine their political status freely and pursue their economic,
social and cultural development freely (art. 3) and have the right to autonomy or self-
government in matters relating to their internal and local affairs, and the ways and means
for financing their autonomous functions (art. 4). The Declaration also states that
indigenous peoples have the right to participate in decision-making in matters that affect
their rights (art. 18).
36. While Australia has adopted numerous policies aiming to address the socioeconomic
disadvantage of Aboriginal and Torres Strait Islander peoples, the failure to respect their
rights to self-determination and to full and effective participation is alarming. The
compounded effect of those policies has contributed to the failure to deliver on the targets
in the areas of health, education and employment in the “Closing the Gap” strategy and has
contributed to aggravating the escalating incarceration and child removal rates of
Aboriginal and Torres Strait Islanders.
E. Indigenous Advancement Strategy
37. The Special Rapporteur was informed that the “Indigenous Advancement Strategy”,
initiated by the Government in 2014, entailed a radical cut of $A534 million to Aboriginal
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and Torres Strait Islander programmes and required competitive tender bids for
organizations providing services to indigenous communities. The Strategy centralized
programmes to the Department of the Prime Minister and Cabinet, and its implementation
has been bureaucratic and rigid and has wasted considerable resources on administration.
As the Special Rapporteur travelled across the country, she was told repeatedly about the
dire consequences of the Strategy.
38. The Strategy has effectively undermined the key role played by indigenous
organizations in providing services for their communities. Around 55 per cent of the initial
tenders were awarded to non-indigenous organizations, which shifted implementation to
mainstream organizations that were neither run by Aboriginal and Torres Strait Islanders
nor based in their communities. Many indigenous organizations were forced to close or
drastically downsize and reduce the basic services they had been providing to their
communities in the areas of health, housing and legal services. Non-indigenous
organizations that fly in and fly out of communities have executed projects in culturally
inappropriate ways and further undermined capacity-building in local indigenous-led
organizations.
39. The Special Rapporteur observes that the Strategy has had a devastating impact on
indigenous organizations and has dented their trust in the Government. It runs contrary to
the principles of self-determination and participation and the publicly expressed
commitment of the Government to doing things with rather than to Aboriginal and Torres
Strait Islander people.
40. However, the Special Rapporteur notes as positive the statement made by the
Minister for Indigenous Affairs during their meeting, in which he recognized the
importance of making indigenous-led organizations responsible for implementing local
programmes and stating that the ambition of the Government was to transfer such
responsibility fully to indigenous organizations.
41. Notwithstanding, the Special Rapporteur finds it disconcerting that numerous
representatives of indigenous organizations informed her of reprisals levied against them in
the form of their exclusion from consultations on key policies and legislative proposals.
Furthermore, she is deeply troubled by information indicating that funding cuts have
specifically targeted organizations undertaking advocacy and legal services and that
provisions inserted in funding agreements restrict the freedom of expression. She notes that
the Special Rapporteur on human rights defenders raised the similar concerns during his
country visit to Australia in October 2016.15
F. National Congress defunding
42. Since 2014, the explicit defunding by the Government of the national representative
body for indigenous peoples, the National Congress of Australia’s First Peoples, runs
counter to the stated commitment of the Government to working with indigenous peoples.
The establishment of the Congress in 2010 followed extensive consultations among
indigenous peoples and is in accordance with article 18 of the Declaration, which states that
indigenous peoples have the right “to participate in decision-making in matters which affect
their rights, through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous decision making
institutions”. The Declaration also affirms in its article 39 that indigenous peoples have the
right “to have access to financial … assistance from States … for the enjoyment of the
rights contained in this Declaration”.
43. In 2013, in a parallel move, the Government established the Indigenous Advisory
Council, which reports directly to the Prime Minister. While the Council is composed of
indigenous experts in specific areas, it is not representative of Aboriginal and Torres Strait
Islander peoples as its members are appointed by the Prime Minister.
15 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E.
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44. The Special Rapporteur recalls that the Government accepted, in the context of the
universal periodic review in 2015 to “continue to support indigenous institutions that bring
cohesion to communities, such as the National Congress of the First Peoples of Australia”.16
Financial and political support for the Congress to operate effectively is crucial to prove the
commitment of the Government to advancing indigenous rights. Following her visit, the
Special Rapporteur was informed by the Government that some funding for the Congress
had been reinstated. However, she is concerned that funding remains insufficient for the
Congress to exercise its mandate fully.
45. While in Canberra, the Special Rapporteur met with the Aboriginal and Torres Strait
Islander Elected Body of the Australian Capital Territory, which is currently the only such
body in the country at the state or territory level. The body meets on a regular basis with the
Government of the Australian Capital Territory to discuss policy issues and offers a
positive model for engagement with indigenous peoples.
G. Closing the Gap strategy
46. The “Closing the Gap” strategy has been in existence for nearly a decade. However,
in its 2017 report on health, education and unemployment targets, 17 the Government
recognizes that only one of the seven targets — to halve the gap in Year 12 attainment rates
— is on track. The Government did not expect to meet targets to close or reduce the gap in
the remaining six targets, including on life expectancy, infant mortality, education and
employment. Aboriginal and Torres Strait Islander peoples continue to die on average 10
years younger than other Australians, with no major improvements being recorded. In the
Northern Territory, the life expectancy of Aboriginal people is the lowest in the nation and
the gap between the non-indigenous population is 16 years for men and 14 years for
women.
47. It is woefully inadequate that, despite having enjoyed over two decades of economic
growth, Australia has not been able to improve the social disadvantage of its indigenous
population. The existing measures are clearly insufficient as evidenced by the lack of
progress in achieving the “Close the Gap” targets.
H. Health services
48. Social and cultural determinants explain almost one third of the health gap between
indigenous and non-indigenous people. In 2015, nearly 45 per cent of indigenous peoples
reported having a disability or long-term health condition. Understanding the impacts of
intergenerational trauma and racism are essential factors in order to address the health
situation of indigenous peoples effectively.
49. The Government has taken steps to improve the health of indigenous peoples
through the National Aboriginal and Torres Strait Islander Health Plan 2013-2023, and the
Special Rapporteur notes as positive that the plan adopts a human rights-based approach
informed by the Declaration.18
50. In order for the Implementation Plan for the Health Plan to be successful, the
Government must invest in partnerships that recognize the leadership of Aboriginal and
Torres Strait Islanders. The workforce of indigenous Australian medical professionals has
expanded in the past decade and developed valuable expertise. However, parity is still
lagging as Aboriginal and Torres Strait Islanders still make up less than 1 per cent of the
national health workforce. Support for training more indigenous health professionals is
therefore required.
16 See A/HRC/31/14/Add.1, para. 28, in which Australia accepted the recommendation in para. 136.87
of A/HRC/31/14.
17 See http://closingthegap.pmc.gov.au.
18 See www.health.gov.au/internet/publications/publishing.nsf/Content/oatsih-healthplan-
toc~framework.
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51. Aboriginal Community Controlled Health Services have achieved remarkable
success in delivering culturally appropriate services for primary health care. However, the
Special Rapporteur was informed by multiple stakeholders during her visit about
inequalities in the resources available for rural and remote service delivery and of cuts to
community managed primary health care, which play an essential role, for example in the
prevention of chronic diseases.
52. Aboriginal and Torres Strait Islanders also told the Special Rapporteur about their
feelings of powerlessness, loss of culture and lack of control over their lives. Suicide rates
among Aboriginal and Torres Strait Islander people are escalating at a shocking rate and are
double that of non-Indigenous Australians. The current situation was described to the
Special Rapporteur as a suicide epidemic. While visiting the Kimberley region in Western
Australia, she learned about youth-developed and -driven projects to prevent suicide among
Aboriginal adolescents. She strongly urges that such initiatives be supported and replicated.
Adopting a holistic approach to social and emotional well-being that recognizes the need
for cultural connection is essential to achieve sustainable improvement in health indicators.
53. Aboriginal-led health research capacity has been established and should be drawn
upon to inform policies. Strengthened financial and political support for Aboriginal- and
Torres Strait Islander-led expertise, professional development and research is crucial in
order to close the gap in relation to key health inequalities faced by indigenous peoples. In
order for such measures to be sustainable, longer-term funding agreements are necessary.
I. Access to education
54. In the area of education, large gaps remain, notably between children living in urban
versus remote areas. Despite the adoption of the National Aboriginal and Torres Strait
Islander Education Strategy, there had been no real change in school attendance rates
between 2014 and 2016. The Special Rapporteur was informed that Aboriginal community
involvement in early childhood, primary and secondary education has declined over the
past decade, particularly in the formulation and delivery of programmes, and that
centralized decision-making without appropriate cultural awareness has led to poor policies
and practices in Aboriginal education.
55. It is essential to increase parents’ and community engagement with schools, for
example, by introducing Aboriginal parents’ groups in schools or community-controlled
school boards. A trauma-informed approach to education should identify the barriers to
attendance and help parents and families to improve it. The current application of financial
penalties should be discontinued as they further disadvantage children who already live in
poverty, and who are likely to be exposed to overcrowded and poor housing, family
violence, chronic illnesses and food insecurity. Unless such action is taken, Aboriginal
children, especially in remote areas, are set up to fail.
56. Regrettably, Aboriginal languages are seen as a barrier to education rather than an
asset, and bilingual education programmes have been wound back in remote communities.
The lack of secondary school provision in remote communities forces parents to send
children to secondary boarding schools, far away from family, community and their
country.
J. Unemployment and housing shortage
57. Equal opportunity of employment is critical to overcoming disadvantage. Efforts to
reach the “Closing the Gap” target of halving the gap in employment between indigenous
and non-indigenous Australians within a decade (by 2018) have been unsuccessful and
rather indicate negative trends. The national unemployment rate for Aboriginal and Torres
Strait Islander people is 20.8 per cent, compared with the national average of approximately
5-6 per cent.
58. In 2015, the Government introduced the Community Development Programme in
remote areas. Among the jobseekers enrolled in the Programme, 83 per cent identify as
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Aboriginal and Torres Strait Islander people. 19 The Programme imposes an inflexible
digitalized regime on recipients that issues penalty notices and docks their pay for missed
scheduled work. Under the Programme, contracted organizations that provide employment
have fewer opportunities to tailor engagement strategies to local communities or to
particular individuals. The rate at which jobseekers within the Programme are penalized is
around 27 times that of mainstream, predominantly non-indigenous, jobseekers. In practice,
these requirements are discriminatory, being substantially more onerous than those that
apply to predominantly non-indigenous jobseekers.
59. Housing remains in short supply in many indigenous communities, and low levels of
income have forced people into overcrowded or dilapidated housing. While in Darwin, the
Special Rapporteur visited Aboriginal town camps and was appalled by the dismal
conditions therein, in particular the lack of basic sanitation services. The helplessness and
shame that many feel when they are unable to find work results in the entrenchment of
poverty and money being spent on illicit substances as opposed to basic needs. The high
rates of homelessness, overcrowding and poor housing have a high impact on Aboriginal
and Torres Strat Islander health indicators and fuel the disproportionately high rates of
Aboriginal children entering the child protection and youth detention systems.
K. Compulsory income management
60. The application of a compulsory income management scheme was a key feature of
the “Northern Territory Intervention” and persist through its successor, the “Stronger
Futures” legislation. The vast majority of those affected by the measures are Aboriginal and
Torres Strait Islanders. In 2009, the previous Special Rapporteur criticized the impact that
the Intervention had had, and specifically the suspension by the Government of the Racial
Discrimination Act, which had removed legal protections for Aboriginal peoples in the
Northern Territory.
61. While the Racial Discrimination Act was reinstated in December 2010 and
legislation was revised and renamed “Stronger Futures” in 2012, it continues to apply
punitive measures. During her visit to the Northern Territory, Aboriginal communities told
the Special Rapporteur of how they feel stigmatized by being subjected to compulsory
income management, forced participation in “work for the dole” schemes (that pay
individuals far less than an average reward rate) and the application of fines and welfare
reductions for parents whose children play truant from school. As part of the compulsory
income management scheme, welfare payments are partially quarantined and provided
through a “BasicsCard”, which restricts people’s purchases to specific stores and items. The
Special Rapporteur was told by users of the card that it causes humiliation, for example as
certain shops require them to queue separately.
62. The administrative costs of running the scheme are very high, and the Special
Rapporteur was informed that this has drained financial resources that could have been
better invested in improving housing conditions.
63. The Parliamentary Joint Committee on Human Rights, in its 2016 review of the
“Stronger Futures” measures, described the scheme as an “intrusive measure that robs
individuals of their autonomy and dignity and involves a significant interference into a
person’s private and family life”.20
64. In a parallel development, the Special Rapporteur notes that voluntary income
management is being trialled in two “empowered communities” following specific requests
from the community. Unlike under the compulsory income management scheme in the
Northern Territory, local indigenous communities have participated actively in this policy
design. The impact of voluntary income management has yet to be fully assessed.
19 See www.dpmc.gov.au/indigenous-affairs/employment/community-development-programme-cdp.
20 See http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/
Committee_Inquiries/strongerfutures2/Final_report.
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65. The Special Rapporteur was informed that certain Aboriginal women’s
organizations are in favour of income management measures as they consider that these
have improved the safety of women and children as well as food security.
L. Incarceration and the administration of justice
66. The administration of justice and detention practices were raised as key concerns
during the country visit. The extraordinarily high rate of incarceration of Aboriginal and
Torres Strait Islanders, including women and children, is a major human rights concern.
While Aboriginal and Torres Strait Islanders make up only 3 per cent of the total
population, they constitute 27 per cent of the national prison population. More than half of
the children in detention are Aboriginal and Torres Strait Islanders. In some detention
facilities, such as in the Northern Territory and in the Cleveland Youth Detention Centre in
Queensland, indigenous children constitute an astonishing 90 per cent of the detainees,
which prima facie raises concerns over racial discrimination in the administration of justice.
67. The proportion of Aboriginal and Torres Strait Islanders continues to rise and is
expected to reach 50 per cent of the overall prison population by 2020. Despite the
comprehensive recommendations issued to address incarceration rates over 25 years ago in
the Royal Commission into Aboriginal Deaths in Custody in 1991, the indigenous prison
population has on the contrary doubled during that period. The reasons for the
overrepresentation of Aboriginal and Torres Strait Islanders in Australian prisons are
manifold. Imprisonment is the end result of years of dispossession, discrimination and
intergenerational trauma faced by Aboriginal and Torres Strait Islanders. It is also caused
by the lack of political will to address the situation, despite that key measures for
improvement have been repeatedly identified by a string of national and state inquiries,
royal commissions, coroners’ reports and international human rights monitoring
mechanisms.
68. Current laws and policies continue to contribute to the swift escalation in the
incarceration rates of Aboriginal and Torres Strait Islanders. Though not explicitly targeted
at those populations, their disproportionate impact is clear. For instance, paperless arrests
laws in the Northern Territory, which allow the police to detain a person for several hours if
they have committed or are suspected to have committed a minor offence, have led to a
dramatic increase in the number of indigenous persons in police custody. Bail laws and
policies have become more restrictive in most States and Territories and have led to a
significant increase in the number of Aboriginal and Torres Strait Islanders held on remand.
Longstanding calls for the abolishment of mandatory sentencing laws, notably in Western
Australia, continue to be ignored. The current inquiry by the Australian Law Reform
Commission into the Incarceration of Aboriginal and Torres Strait Islander Peoples should
help identify laws that need to be amended to reduce such incarceration, and the
Government must act on those laws to impede this national crisis, which has devastating
effects on the indigenous community.
69. Funding for legal services for Aboriginals and Torres Strait Islanders has been
reduced since 2015, which has had a significant impact on Aboriginal and Torres Strait
Islanders, who have higher rates of unmet legal needs, owing inter alia to not speaking
English as their first language and having lower literacy skills. High-quality and culturally
competent legal assistance services are critical to ensure access to justice for Aboriginal and
Torres Strait Islanders and to reduce imprisonment. The Special Rapporteur is pleased to
learn, that subsequent to her visit, federal funding cuts for Aboriginal and Torres Straits
Islander legal services were reversed in May 2017. A national mapping of unmet legal
needs has however yet to be undertaken, a step that is essential in order to overcome the
persistent disadvantage and to address effectively incarceration rates.
70. Since the 1991 Royal Commission into Aboriginal Deaths in Custody, there have
been over 340 deaths of Aboriginal and Torres Strait Islanders in detention. Certain deaths
have been caused by the negligence of the staff responsible for the care of the person in
custody. This was the case for Ms. Dhu, a 22-year-old indigenous woman who died within
48 hours of being taken into police custody in Western Australia in August 2014. She
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13
received inadequate medical care and suffered police actions described by the Coroner as
“unprofessional and inhumane”. 21 The Special Rapporteur met with officials of the
Coroner’s Court of Western Australia, which conducted the inquest into the death of Ms.
Dhu, and made important recommendations that must be implemented as a matter of
priority in order to prevent similar deaths in custody. Since the State Coroner does not
examine issues of civil or criminal liability, it remains important to investigate such
matters, including in the case of Ms. Dhu.
71. Among the numerous recommendations of the Royal Commission into Aboriginal
Deaths in Custody that the Government has still failed to implement, is the adoption of
custody notification services throughout the country. Next of kin should be informed that
their relative has been taken into custody as a minimum safeguard against irregular
detention practices. Such notification services, despite not carrying major cost implications,
are currently only available in New South Wales and the Australian Capital Territory.
72. Ms. Dhu was in police custody for fine default. In Western Australia, a growing
number of Aboriginal women find themselves unable to pay fines and are taken into
custody as result. The Special Rapporteur visited Bandyup prison, a women’s prison in
Perth, where Aboriginal women comprised 48 per cent of the detainees. She is particularly
concerned to learn that many of the Aboriginal women had no access to housing when they
came out of prison. As a result of incarceration, many women also struggled to keep ties
with and to regain custody of their children. The laws on fine default are an example of
legislation having a disproportionate impact on Aboriginal women.
73. Aboriginal women and girls are the fastest growing prison population across the
country. As pointed out by the Special Rapporteur on violence against women, its causes
and consequences during her visit to Australia in February 2017, many incarcerated women
and girls have been the victims of domestic violence and sexual abuse.22 Despite knowledge
of such victimization, detention facilities lack support services for women who have
suffered sexual assault and were in fact cut in Bandyup prison in 2016. Gender-sensitive
measures are required to reduce rates of imprisonment of Aboriginal women and girls and
should be developed based on consultations directly with them.
74. Aboriginal and Torres Strait Islander children are 24 times more likely to be
detained than non-indigenous children. The Special Rapporteur found the routine detention
of young indigenous children the most distressing aspect of her visit. In Cleveland Youth
Detention Centre, she met several children as young as 12 years old. Many of the children
had already been detained several times at the same facility and more or less gone straight
from out-of-home care into detention. The majority of the detained children are on remand.
75. The application of criminal responsibility as low as at the age of 10 years across the
country is deeply troubling and below international standards. This situation is aggravated
by the failure to apply diversion measures and community programmes and the placement
of children in high-security facilities, such as the Cleveland Youth Detention Centre. All
personnel in detention facilities should receive training on culturally sensitive child care.
The facility is strictly regulated and run based on punitive measures for misdemeanours as
minor as overstaying in the pool in the facility.
76. Several sources, including judges, informed the Special Rapporteur that, in the
majority of instances, the initial offences committed by children were minor and non-
violent. In such cases, it is wholly inappropriate to detain children in punitive, rather than
rehabilitative, conditions. Aboriginal and Torres Strait Islander children are essentially
being punished for being poor and, in most cases, prison will only perpetuate the cycle of
violence, intergenerational trauma, poverty and crime. The Special Rapporteur was alarmed
that several of the young children she spoke to detention did not see any future prospects
for themselves.
77. As already recommended several times over the past two decades by the Committee
on the Rights of the Child, the Special Rapporteur urges Australia to increase the age of
21 See www.coronerscourt.wa.gov.au/_files/dhu%20finding.pdf.
22 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21243&LangID=E.
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criminal responsibility. Children should be detained only as a last resort, which certainly is
not the case today for Aboriginal and Torres Strait Islander children. Detention of those
children has become so prevalent in certain communities that some parents referred to it as
an achievement that none of their children has been taken into custody so far. Much more
should be done to ensure that the detention of children remains the exception, rather than
the norm.
78. If Aboriginal and Torres Strait Islander children are detained, they should be treated
with respect and dignity. As demonstrated by the ongoing investigation of the Royal
Commission into the Protection and Detention of Children in the Northern Territory, there
have been allegations of serious abuses, including violent strip-searches, teargassing,
hooding and prolonged isolation committed against Aboriginal children in custody.
79. In both Bandyup prison and Cleveland Youth Detention Centre, the Special
Rapporteur noted that persons on pretrial remand detention were held together with
convicted persons, which raises serious concerns under article 10 (2) of the International
Covenant on Civil and Political Rights. She also found deeply troubling the presence of
Aboriginal persons with cognitive impairment in detention without any support for their
medical condition. The Special Rapporteur was furthermore concerned to learn that
children aged 17 were still being held in adult prisons in Queensland.
80. The Special Rapporteur welcomes the recent announcement by the Government that
Australia intends to ratify Optional Protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment before the end of 2017, which will
require the establishment of a national system of independent and regular monitoring of all
places of detention, a measure that the country is in dire need of. The Special Rapporteur
visited the Office of the Inspector of Custodial Services in Western Australia, which offers
a good model and should be replicated in other states and territories, with an added mandate
to cover police custody.
81. Adequate and culturally appropriate health services in detention facilities are lacking
and should be ameliorated by the targeted recruitment of Aboriginal health professionals.
The Special Rapporteur furthermore recommends that more efforts be made to train and
recruit Aboriginal and Torres Strait Islander police, legal professionals and prison
personnel. All non-indigenous staff should be trained in cultural sensitivity.
82. The focus urgently needs to move away from detention and punishment towards
rehabilitation and reintegration. Locking up people costs tax payers vast amounts of money.
For instance, the Special Rapporteur was told that detaining a child costs between
$A170,000 and $A200,000 per year. Such funds should be allocated to prevention and
reintegration. In that regard, the Special Rapporteur learned about local diversion
initiatives, often referred to as justice reinvestment programmes, designed to address the
causes of crime in specific communities. In Redfern, a suburb of Sydney, she visited the
“Clean Slate Without Prejudice Programme”, which is run by an Aboriginal organization in
collaboration with the police and has contributed to a significant decrease in the crime rate
there over the past few years. Diversion programmes would significantly reduce
incarceration rates if replicated across the country in consultation with local communities.
83. The Special Rapporteur was impressed with the Children’s Koori Court in
Melbourne, which involves the participation of elders and respected persons from the Koori
community in its procedures and aims to reduce imprisonment and recidivism. Such
culturally sensitive processes could significantly reduce recidivism rates if extended to
other jurisdictions.
84. The Special Rapporteur notes the report “Prison to Work”, endorsed by the Council
of Australian Governments in December 2016, which provides valuable proposals for
reintegration and places emphasis on the need for enhanced and culturally appropriate
services, notably in the areas of employment, housing and welfare, following prison
release, in order to reduce recidivism. She encourages the federal, state and territory
governments to take concrete action and allocate funding to implement those proposals.
85. The high rates of incarceration were described to the Special Rapporteur as a
tsunami affecting indigenous peoples with devastating consequences for concerned
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15
individuals and communities. The Federal Government has recognized that incarceration is
a national concern, including by its request in October 2016 that the Australian Law
Reform Commission conduct an inquiry into incarceration rates of Aboriginal and Torres
Strait Islander peoples. However, as long as the issue of overrepresentation of indigenous
peoples in custody is not addressed in practice and continuously monitored, there will only
be limited progress in closing the gap in the areas of health, education and employment.
The “Change the Record” coalition of Aboriginal and Torres Strait Islander and civil
society organizations has provided an excellent blueprint of recommendations 23 for
concrete measures that would provide swift improvements of detention conditions.
86. The current claim by the Government that matters relating to incarceration remain
the sole prerogative of states is untenable in the severe and worsens the impact of the
national detention crisis on the Aboriginal and Torres Strait Islander peoples. The Special
Rapporteur underlines that it is the responsibility of the federal Government to ensure
compliance with international human rights obligations. The inclusion of targets on justice
in the “Closing the Gap” strategy and the development and implementation of a national
plan of action are needed to address the incarceration crisis.
M. Removal of children
87. Indigenous children are removed from their families at increasingly high rates. The
prolonged impacts of intergenerational trauma from the Stolen Generations,
disempowerment and entrenched poverty continue to inform Aboriginal and Torres Strait
Islanders’ experiences of child protection interventions. The Special Rapporteur was told of
the grief and helplessness felt by parents and children owing to their separation, and the
link this has to high rates of mental illness and substance abuse.
88. In 1997, the year in which the report entitled “Bringing Them Home” was published
(see para. 92), Aboriginal and Torres Strait Islander children constituted 20 per cent of
children in out-of-home care. By 2016, that figure had increased to 36 per cent, with
Aboriginal and Torres Strait Islander children being 10 times more likely than non-
indigenous children to be in out-of-home care.
89. The Aboriginal and Torres Strait Islander Child Placement Principle was first
implemented in 1983 with the purpose of enhancing and preserving Aboriginal children’s
sense of identity through the prevention of out-of-home care, reunifying children with their
families, ensuring culturally connected placements and enabling the participation of
Aboriginal and Torres Strait Islander families and communities in child protection decision-
making. Despite that, the incidence of indigenous children in out-of-home care is increasing
rapidly and has reached critical levels. In 2016, on average, only 66 per cent of Aboriginal
and Torres Strait Islander children for whom child protection measures were ordered were
placed within their family, kin and community; the Government is failing to comply with
the Principle.
90. Greater engagement with the Aboriginal and Torres Strait Islander family and
community in decision-making processes around child protection is crucial. Community-
led early intervention programmes that invest in families would prevent children from
being in contact with the child protection system in the first place.
91. The number of Aboriginal and Torres Strait Islander children in out-of-home care is
predicted to almost triple by 2035. Measures must therefore be put in place urgently. To
monitor the situation, an Aboriginal children’s commissioner in each state and territory and
a national coordinating entity could play a valuable role. Development, in consultation with
peak indigenous organizations, should be considered of a national strategy to eliminate the
overrepresentation of Aboriginal and Torres Strait Islander children in out-of-home care.
23 See https://changetherecord.org.au/the-solutions.
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N. Stolen Generations and reparation
92. 2017 marks the twentieth anniversary of the publication of “Bringing Them
Home”, 24 the report on “stolen children” that concluded that the forced removal of
Aboriginal and Torres Strait Islander children had been genocidal and had constituted a
crime against humanity for which reparation was due under international law. The forced
removals had ruptured cultural ties, broken down family and social structures and resulted
in intergenerational trauma that continued to disadvantage indigenous communities. There
were links between past and present child removal practices as indigenous peoples who had
themselves been placed in institutions never experienced growing up in a family
environment, placing them at a disadvantage in developing their own parenting skills. The
Special Rapporteur learned about instances where three generations of children had been
removed from their families and placed in institutions.
93. The Special Rapporteur welcomes the ongoing Stolen Generations reparations
schemes in New South Wales and South Australia and the reparations already paid in
Tasmania, and reiterates the recommendation in “Bringing Them Home”, also supported by
the Australian Human Rights Commission, that a comprehensive national mechanism be
established to ensure that adequate reparations, including compensation, are provided to the
victims of the Stolen Generations policies.
O. Violence against women
94. Discrimination against Aboriginal and Torres Strait Islander women on the grounds
of gender, race and class is structurally and institutionally entrenched. This discrimination,
coupled with the lack of culturally appropriate measures to address the issue, fosters a
disturbing pattern of violence against Aboriginal and Torres Strait Islander women.
Indigenous women are 10 times more likely to die of violent assault and 32 times more
likely to be hospitalized as a result of violence-related assault compared with non-
indigenous women.
95. Those statistics may not reflect the actual numbers owing to high underreporting
rates, estimated at 90 per cent. Underreporting is related to the issue of distrust of the
current system, highlighting the importance of Aboriginal community-led programmes
where women can regain trust and seek out culturally safe service provision. Some women
do not report family violence out of fear that their children may be removed. The Special
Rapporteur was troubled by information indicating that certain Aboriginal family violence
prevention legal services had to turn away 30 to 40 per cent of women seeking assistance
owing to a lack of resources. She urges that additional financial support to those legal
services be provided and based on a national needs-based assessment.
96. Family violence is an intersectional concern that overlaps with homelessness,
poverty, incarceration, health and the removal of children. If not tackled comprehensively,
family violence will remain cyclical and undermine efforts to address related issues. In
2016, the Government launched the Third Action Plan of the National Plan to Reduce
Violence Against Women and Their Children, which lists among its priorities Aboriginal
and Torres Strait Islander women and children. However, the Special Rapporteur concurs
with the Special Rapporteur on violence against women that a specific national action plan
on violence against Aboriginal and Torres Strait Islander women is needed and should be
developed in close consultation with indigenous women and other relevant stakeholders.
P. Political participation
97. Currently only 50 per cent of the Aboriginal and Torres Strait Islander population is
on the electoral role. This is partly due to eligible voter criteria, including the requirement
of a fixed address and a ban on voting by prisoners serving a sentence of more than three
24 See https://healingfoundation.org.au/bth20/.
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years, which disproportionately affects indigenous peoples.25 The Special Rapporteur was
informed about measures in place by the Australian Electoral Commission to increase the
number of indigenous voters, but urges that those measures be reinforced, in consultation
with indigenous communities and organizations, as a matter of priority in order to improve
Aboriginal and Torres Strait Islanders’ exercise of their right to political participation.
Q. Land rights and native title
98. As with other indigenous peoples around the world, land rights are central to the
cultural identity and economic development of Aboriginal and Torres Strait Islanders. 2017
marks the twenty-fifth anniversary of the landmark Mabo decision, which held that the
common law of Australia recognized native titles held by indigenous peoples to their
traditional lands. The decision led to the adoption of the Native Title Act 1993 (Cth), which
set out the processes for determining native title rights. The rights of Aboriginals and
Torres Strait Islanders to around 30 per cent of the land area of the country are formally
recognized, yet in most instances only “non-exclusive” rights are recognized. A further 27
per cent of Australia territory is subject to native title claims, processes that are extremely
protracted.
99. In order to succeed, claimants under the Native Title Act must prove that they have
had an uninterrupted connection to the area being claimed, and that they have continued to
practice their traditional laws and customs. This is an extraordinary challenge and burden of
proof in the context of the historical forced removal and dispossession policies of Australia.
The Special Rapporteur furthermore notes the complex system with multiple and
overlapping legal regimes applicable to native title claims and land rights at the federal,
state and territory levels. There are insufficient indigenous legal professionals with
expertise on land rights claims, which continues to disadvantage communities seeking to
exercise their rights.
100. Aboriginal and Torres Strait Islanders have been negotiating Indigenous Land Use
Agreements for years in order to, for instance, resolve native title claims or benefit from
development activities carried out on their lands. While some Agreements are controversial,
others are not and have brought important economic benefits for indigenous communities.
101. In its McGlade decision of 2 February 2017, the Federal Court created legal
uncertainty by requiring that, in order to be valid, indigenous land use agreements should
be signed by all native title claimants. The Government reacted by proposing a bill to
amend the Native Title Act. The bill, passed on 14 June 2017, validates existing agreements
already negotiated and registered before the McGlade decision, even though they had not
been signed by all native title claimants. In that regard, the Special Rapporteur recalls that
the principle of free, informed and prior consent does not require the consent of all. Having
said that, there are many different types of indigenous land use agreements and some have
far-reaching consequences on native title rights and even lead to the surrender of all native
title (as in the McGlade case).
102. The Special Rapporteur appreciated learning about the joint management of
protected areas for conservation in several parts of the country, including in Kimberley. The
creation and joint management of those protected areas allow traditional owners to continue
to enjoy their customary practices, while providing conservation and direct employment
opportunities for indigenous peoples. The Special Rapporteur was also encouraged by the
highly successful government-funded indigenous rangers’ programme, which supports
indigenous peoples’ connection to their lands, encourages cultural knowledge transfer,
provides skilled employment and simultaneously contributes to conservation.26
103. During the visit, she was informed about successful native title claimants who
wished to declare their lands protected areas but faced administrative obstacles in doing so.
She encourages the authorities to take steps to facilitate the extension of protected areas
25 See https://freedomhouse.org/report/freedom-world/2016/australia.
26 See www.dpmc.gov.au/indigenous-affairs/environment/indigenous-rangers-working-country.
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when requested by Aboriginal and Torres Strait Islander Peoples. Following her mission,
she was pleased to learn about the designation of additional federal funding allocations for
protected areas.
VI. Conclusions and recommendations
104. While the Government has adopted numerous policies to address the
socioeconomic disadvantage of Aboriginal and Torres Strait Islanders, those policies
do not duly respect the rights to self-determination and to full and effective
participation. The compounded effect of the policies contributes to the failure to
deliver on the targets in the areas of health, education and employment in the
“Closing the Gap” strategy and fuels the escalating and critical incarceration and
child removal rates of Aboriginal and Torres Strait Islanders. Comprehensive
revision of the policies needs to be a national priority, and the consequences and
prevalence of intergenerational trauma and racism must be acknowledged and
addressed. Aboriginal and Torres Strait Islanders require better recognition and
active participation in Australian society.
105. The Special Rapporteur was particularly impressed and inspired by the
strength of spirit and commitment of Aboriginal and Torres Strait Islanders to
develop innovative measures to support their own communities. Over the past decade,
indigenous-led peak bodies have been established and have grown in a wide range of
areas, and have developed valuable expertise. In June 2016, the “Redfern Statement”
was launched by indigenous peak organizations from all sectors. It lays out six key
priority areas and recommendations and covers issues ranging from engagement,
health, justice, violence prevention, disability, children and families and calls for a
new dialogue with the Government to address some of the major challenges facing
Aboriginal and Torres Strait Islander peoples.
106. The Special Rapporteur observed effective indigenous community-led
initiatives in a range of areas, including public health, housing, education, child
protection, conservation and administration of justice, which all have the potential of
making immediate positive changes in the lives of Aboriginal and Torres Strait
Islanders. The Government could achieve significant progress in realizing the rights of
indigenous peoples if it consulted, financially supported and worked hand-in-hand
with those organizations.
Recommendations to the Government
107. With respect to the institutional and legal framework, the Special Rapporteur
recommends that the Government:
(a) Place full political weight behind and act on the proposals put forth by
the Referendum Council, including the establishment of a “First Nations Voice” in the
Constitution and of a commission for treaty negotiation and truth-telling. Such
measures would carry momentous significance to resetting the relationship with the
First Peoples of Australia;
(b) Collaborate closely with and pay due attention to implementation of the
recommendations of the Aboriginal and Torres Strait Islander Social Justice
Commissioner;
(c) Pay due attention to the recommendations of the Parliamentary Joint
Committee on Human Rights in its scrutiny reports of draft bills, review of the
“Stronger Futures” legislation in the Northern Territory (2016) and inquiry on
amendments to the Racial Discrimination Act (2017);
(d) Include the United Nations Declaration on the Rights of Indigenous
Peoples in the definition of human rights in the Human Rights (Parliamentary
Scrutiny) Act of 2011;
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(e) Create a parliamentary joint committee on indigenous affairs to advance
indigenous rights in a bi-partisan manner;
(f) Elaborate a comprehensive bill of human rights within the federal
Constitution and a human rights act that include due recognition of the provisions in
the Declaration.
108. Regarding self-determination and participation, the Special Rapporteur
recommends that the Government:
(a) Revise the “Indigenous Advancement Strategy” and the “Closing the
Gap” strategy targets in consultation with the Aboriginal and Torres Strait Islander
Social Justice Commissioner, the National Congress, the Indigenous Advisory Council
and relevant peak indigenous organizations;
(b) Amend the “Closing the Gap” strategy to include specific targets to
reduce of detention rates, child removal incidence and violence against women;
(c) Renew national partnership arrangements between the Commonwealth
and state jurisdictions, enhance coordination between federal- and state-level
implementation and improve data collection for more effective annual monitoring of
progress;
(d) Transfer responsibility for local programme implementation to
indigenous-led organizations to build capacity and their ability to exercise self-
determination;
(e) Reinstate funding for the National Congress and ensure that the
Government holds regular meetings to consult with the National Congress;
(f) Develop, in partnership with indigenous peoples, a national strategy to
give effect to the United Nations Declaration on the Rights of Indigenous Peoples and
the World Conference on Indigenous Peoples Outcome Document;
(g) Establish mandatory training for civil servants on the provisions in the
Declaration, notably the rights to self-determination, participation and free, prior and
informed consent.
109. Concerning health services, the Special Rapporteur recommends that the
Government:
(a) Invest in partnerships that recognize the leadership of Aboriginal and
Torres Strait Islanders in implementing the National Aboriginal and Torres Strait
Islander Health Plan;
(b) Increase support for Aboriginal Community Controlled Health Services
and training of indigenous health professionals;
(c) Provide mandatory training on cultural awareness for non-indigenous
medical professionals;
(d) Finalize and resource the National Plan for Aboriginal and Torres Strait
Islander Mental Health and Social and Emotional Well-being and address
intergenerational trauma more in more culturally appropriate and effective ways;
(e) Provide sustained long-term support for indigenous-led health research.
110. On the subject of education, the Special Rapporteur recommends that the
Government:
(a) Consult with indigenous communities in the development of education
policies, implement school curricula that are culturally sensitive and increase the
provision of bilingual education;
(b) Apply a trauma-informed approach to education that identifies the
barriers to attendance and assists parents and families to improve student attendance,
rather than the application of financial penalties that further disadvantages children
who already live in poverty;
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(c) Conduct a comprehensive review of the mainstream education curricula
to ensure the inclusion of components on Aboriginal and Torres Strait Islander
history and the impact of colonization.
111. Concerning employment, the Special Rapporteur recommends that the
Government reform the Community Development Programme in consultation with
indigenous communities, remove discriminatory and punitive measures and
reconstruct the unemployment scheme in remote areas around positive incentives and
long-term opportunities.
112. With respect to housing, the Special Rapporteur recommends that the
Government:
(a) Take measures, in consultation with indigenous organizations and
communities, to develop housing strategies and increase and improve the availability
of remote, regional and urban housing. Provide specific housing support to enable
Aboriginal and Torres Strait Islander Peoples to remain on their lands rather than
migrate to urban areas;
(b) Identify and address barriers to housing for families with children and
provide urgent responses to families at risk of having a child taken into care when
inadequate housing forms part of the risk.
113. Concerning incarceration and the administration of justice, the Special
Rapporteur recommends that the Government:
(a) Ratify as a matter of urgency the Optional Protocol of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
and establish an independent national preventive mechanism for regular detention
monitoring visits;
(b) Adopt, through the Council of Australian Governments, solid
commitments and a national plan of action to address the incarceration crisis of
Aboriginals and Torres Strait Islander peoples as a matter of national priority;
(c) Implement the recommendations by the Australian Law Reform
Commission Inquiry into the Incarceration of Aboriginals and Torres Strait Islander
peoples and the Royal Commission into Youth Detention in the Northern Territory;
(d) Abolish paperless arrest and mandatory sentencing laws and review fine
default legislation, as their application is discriminatory in practice;
(e) Ensure that there are investigations and accountability, both for civil
and criminal liability, for abuses and deaths in detention of Aboriginals and Torres
Strait Islanders and that the responsibility to provide reparation is assumed by the
State;
(f) Provide adequate and long-term funding for Aboriginal and Torres
Strait Islander legal services based on a national mapping of unmet needs;
(g) Introduce custody notification services in all States and Territories;
(h) Ensure that culturally appropriate medical care, including mental health
services, are available in all detention facilities;
(i) Increase the age of criminal responsibility from 10 years to at least 12
years, in accordance with international standards. Detention of children should be a
measure of last resort;
(j) Withdraw its reservation to the Convention on the Rights of the Child
and ensure that no children are held together with adults;
(k) Provide all personnel in detention facilities with training on culturally
sensitive child care;
(l) Conduct a comprehensive assessment of existing diversion and justice
reinvestment programmes and replicate, in consultation with local communities, such
measures in targeted areas across the country;
A/HRC/36/46/Add.2
21
(m) Extend culturally sensitive judicial processes, using the Koori courts in
Victoria as a model, to other jurisdictions throughout the country.
114. As regards the removal of children, the Special Rapporteur recommends that
the Government:
(a) Ensure that community-led early intervention programmes invest in
families, rather than punish them, in order to prevent children from being in contact
with the child protection system;
(b) Develop, in consultation with peak indigenous organizations, a national
strategy to eliminate the overrepresentation of Aboriginal and Torres Strait Islander
children in out-of-home care and to monitor compliance with the Aboriginal and
Torres Strait Islander Child Placement Principle;
(c) Ratify the Optional Protocol to the Convention on the Rights of the
Child on a communications procedure.
115. On the matter of Stolen Generations and reparation, the Special Rapporteur
recommends that the Government establish a comprehensive national mechanism to
ensure that adequate reparation, including compensation, is provided to the victims of
the “Stolen Generations” policies.
116. Regarding violence against women, the Special Rapporteur recommends that
the Government develop, in close consultation with indigenous women, a specific
national action plan on violence against Aboriginal and Torres Strait Islander women.
117. With respect to political participation, the Special Rapporteur recommends
that the Government reinforce as a matter of priority measures by the Australian
Electoral Commission, in consultation with indigenous organizations, to increase the
number of indigenous voters to improve Aboriginal and Torres Strait Islanders’
exercise of their right to political participation.
118. Concerning land rights and native title, the Special Rapporteur recommends
that the Government:
(a) Review the system with multiple and overlapping legal regimes
applicable to native title claims at the federal, state and territory levels, with a view to
aligning them with the United Nations Declaration on the Rights of Indigenous
Peoples, which does not contain norms requiring proof of continuous occupation of
land;
(b) Subject any native title law reform to adequate consultations with all
concerned stakeholders;
(c) Train more indigenous legal professionals with expertise on native title
in order to allow Aboriginal and Torres Strait Islander communities to engage in land
rights claims in an informed manner;
(d) Extend protected areas when requested by Aboriginal and Torres Strait
Islander Peoples;
(e) Continue to support the joint management of protected areas and the
indigenous rangers programme as these are laudable examples of best practices.