SUBMISSION by the to the ATTORNEY-GENERAL’S DEPARTMENT
[Aboriginal News] 31 March 2011
Consultation Process on UPR Recommendations
ABOUT FAIRA
The Foundation for Aboriginal and Islander Research Action (FAIRA) was created in 1977 to pursue rights for the Aboriginal and Torres Strait Islander people of Australia. It is an organisation controlled by a governing committee consisting of Aboriginal and Torres Strait Islander people elected by the organisation’s membership. While the original objective of FAIRA was to address discriminatory laws and practices in the State of Queensland, our charter has no geographical limitation within Australia regarding its membership or functions.
FAIRA has developed to become an advocate at the national and international level for the rights of Aboriginal and Torres Strait Islander peoples.
In 1994 FAIRA was commissioned by the Minister for Aboriginal Affairs as a Native Title Representative Body under the Native Title Act 1993.
The organisation was not reappointed as an NTRB in 2002, after changes to the Native Title Act were legislated in 1998, but FAIRA had shifted focus from 1998 to challenge Australia’s policies, laws and practices under international standards on non-discrimination.
Beginning in 1996, FAIRA has focussed upon the global movement by Indigenous Peoples to gain recognition within the United Nations and to develop universal standards which addressed the human right needs of the Indigenous Peoples of the World. With the adoption by the UN of the Declaration on the Rights of Indigenous Peoples in 2007, the priority for FAIRA is the recognition of the inherent rights of Aboriginal and Torres Strait Islander people in Australia, by ensuring the national government in Australia fulfilled its human rights obligations under the international treaties that it has signed and ratified and through the renegotiation of the relationship between the government and the Aboriginal and Torres Strait Islander peoples, consistent with the right of self-determination
THE UNIVERSAL PERIODIC REVIEW
FAIRA considers the UPR to be the ultimate assessment by the United Nations of a State’s commitment to the Charter of the United Nations and the undertakings by the State to fulfil its obligations to international standards and norms on human rights. FAIRA has actively participated in the international framework for the promotion and protection of human rights with the aim of ensuring that Australia is held accountable for its actions to remedy the disadvantages and discriminations experienced by the Aboriginal and Torres Strait Islander peoples. The challenge to FAIRA over the past 15 years has been to raise the level of awareness in Australia about the human rights abuses of the first peoples and the need to take special and concrete measures to realise the rights of the first peoples.
FAIRA therefore urges the Government of Australia to make every effort to participate openly and effectively in the UPR procedure, by adhering to the recommendations supported by the Aboriginal and Torres Strait Islander peoples and by committing to the implementation of those recommendations fully, if possible, before the next review of Australia under UPR in 2015. FAIRA also believes that all future governments in Australia should be equally held to account in the spirit of the international order for human rights protections.
RECOMMENDATIONS ADDRESSING THE HUMAN RIGHTS FRAMEWORK
FAIRA notes that a number of recommendations arising from the UPR examination of Australia focus upon the ‘framework for human rights’ at the national level. FAIRA considers these framework recommendations to be of high priority and will be the basis for long-term promotion and protection of human rights in Australia.
FAIRA considers that the absence of a Bill of Human Rights entrenched in the Constitution of Australia is the main cause for failure of the nation to address the rights, needs and interests of the Aboriginal and Torres Strait Islander peoples for the past century. While the achievement of Constitutional change to remedy this situation is a challenge the Government of Australia should demonstrate that it is prepared to take all steps necessary to rectify the lack of any protections in the current human rights framework of Australia. We therefore urge the government to address the recommendations arising from the UPR which address the following issues:
• Ratification of human rights treaties; eg ILO Convention No. 169, CED and ICRMW;
• Removal of reservations to ICERD, OP-CAT, CRC and CEDAW;
• Incorporating treaty standards and obligations into national law;
• Adoption of recommendations from human rights treaty bodies and UN special procedures;
• Enactment of equality legislation to complete and consolidate non-
discrimination law;
• Development of an effective and serviceable National Action Plan on human rights;
• Capacity-building for the Australian Human Rights Commission; and
• Realization of human rights education in school curricula
FAIRA consider these recommendations to be compulsory and may form a foundation for long-term adhesion by the future governments of Australia to the standards of human rights which Australians, and especially the Aboriginal and Torres Strait Islander peoples should enjoy.
RECOMMENDATIONS ON INDIGENOUS PEOPLES
It is of little surprise that a large number of recommendations have been made by many different States calling upon Australia to improve its laws, policies and programs addressing the needs of Aboriginal and Torres Strait Islander peoples. It is clear from the context of recommendations made on the Indigenous Peoples of Australia that the Human Rights Council, and the member States of the United Nations, desire that the Government of Australia lift its efforts to protect the rights of the Indigenous Peoples.
FAIRA seeks that the Government of Australia take the lead from the UPR recommendations for Australia to entrench and implement the rights contained in the UN Declaration on the Rights of Indigenous Peoples. All recommendations relevant to the Aboriginal and Torres Strait Islander peoples should be addressed in the context of the right of self-determination and consistent with the subsidiary rights as detailed in the Declaration. These rights should be incorporated into the Constitution of Australia or otherwise be secured by reconciliation leading to a formal agreement as recommended in the UPR.
A second and integral priority is to accept and support Aboriginal and Torres Strait Islander peoples autonomy or self-governance as a way of recognising and respecting decision-making by the peoples themselves through their own representatives and in accordance with their own processes and cultural characteristics.
An initial and important step, to implement the UPR recommendations consistent with the UN Declaration, will be to ratify ILO Convention No. 169. This treaty will ensure a strong base from which the rights in the Declaration can be promoted and protected.
FAIRA welcomes in particular the recommendation that a National Compensation Tribunal be established to provide compensation to Aboriginal and Torres Strait Islander people that are negatively affected by the assimilation policy. The removal of children from families has had a deep and lasting impact upon the communities and all governments in Australia, led by the national government, should be made to face the injustices of the past which have disadvantaged Aboriginal and Torres Strait Islander peoples while leading to advantages for non-indigenous society.
The recommendations also include changes to the native title system. FAIRA considers that such reforms, which have been sought by the human rights treaty bodies for almost two decades, are overdue. The Government of Australia must be prepared to face the injustices committed in previous years and be able to approach the significant challenges in Indigenous affairs with purpose and commitment.
FAIRA supports all recommendations from the UPR which are specifically addressed to the Aboriginal and Torres Strait Islander peoples. We hope the Government of Australia will accept these recommendations with the announcement that a major process of review, facilitating Aboriginal and Torres Strait Islander leadership and decision-making, will be undertaken.
TACKLING HYPERSENSITIVE AND SUSCEPTIBLE ISSUES
FAIRA is aware that the Government of Australia has in recent years taken positions to reject proposals for human rights reforms, and that these proposals may have been recommended under the UPR examination. We urge the Government to reconsider these recommendations in the spirit of human rights reform, to lessen the political tension in which these recommendations have been previously addressed, and to show commitment to the role of Australia as a good global citizen, generally, and an staunch advocate for universal human rights standards in particular.
CONCLUSION
FAIRA commends the continued efforts by the Government of Australia, and in particular the Attorney-General’s Department, to engage with civil society and advocacy organisations to achieve positive results. We are pleased the Government is prepared to engage at both the domestic and international level in an open examination of human rights standards and performance. FAIRA expects the Government will continue to work in a partnership with our organisations and communities to complete the UPR process at the Human Rights Council and to activate human rights reforms through a National Action Plan. We strongly urge the Government to make special effort to engage the Aboriginal and Torres Strait Islander peoples by taking the lead from the number of Aboriginal and Torres Strait Islander organisations that have already participated in the UPR process, and by making a special effort to facilitate wider involvement. FAIRA reminds the Government of Australia that additional resources are needed in the Aboriginal and Torres Strait Islander community to participate in the human rights processes which are now underway in Australia and we call upon the Government to provide the financial resources through our organisations to create a level playing field for our peoples in Australia’s reforms.
Les Malezer
FAIRA