January / February 2009 Volume 7 Issue 10
Special Forum: UN Convention on the Elimination of all Forms of Racial Discrimination
Editorial
In December last year, Federal Attorney-General Robert McClelland launched a National Human Rights Consultation to uncover public attitudes towards rights protection in Australia. In our first edition for 2009, we ask: what would a Charter of Human Rights mean for Indigenous people? Looking at comments from six community members, we examine some key concerns that must be addressed to ensure that the proposed Charter responds to Indigenous needs.
The National Consultation provides a fitting backdrop for our special focus edition. For Indigenous peoples around the world, the United Nations Convention on the Elimination of All forms of Racial Discrimination (‘CERD’) and its supervising Committee present a powerful tool in rights protection. In this edition, we examine how two very different organisations are using the Convention to change Indigenous law and policy at the domestic level.
The Prescribed Areas People’s Alliance (‘PAPA’) has brought an action before the Committee in relation to the Northern Territory Intervention. Having exhausted all domestic remedies, PAPA is seeking a supranational determination that Intervention measures are racially discriminatory and violate international law. Peta MacGillvray reviews the Request for Urgent Action, outlining the measures that are claimed to be discriminatory, and which specific CERD provisions Australia is said to offend. Further on the CERD application, Megan Davis questions the segmented nature of rights protection at international law, highlighting the artificial distinction between racial and sexual discrimination for Indigenous women. Davis argues that, to achieve meaningful protection for Indigenous men and women, it is important that international bodies adopt a more intersectional approach to human rights principles.
Parallel to this, the SA Aboriginal Legal Rights Movement has also brought a claim before the Committee. As the major provider of legal services to the Indigenous population in SA, the ALRM is stretched thin trying to meet demands on its limited resources. Although the number of clients seeking legal assistance is ever-increasing, Federal funding has remained static since 1996. Importantly, the same is not true of funding for mainstream legal services. Jane Robbins examines the ALRM claim in the context of Australia’s federal structure, which enables Commonwealth and State Governments to evade their funding obligations to Indigenous service providers. Melanie Schwartz and Professor Chris Cunneen further discuss the problem of chronic underfunding, analysing its impact on the quality and variety of legal services available to Indigenous Australians.
To close this edition, we revisit some troubling developments in the Queensland District Court’s approach to Indigenous criminal justice. The 2004 death in custody of Mulrunji Doomadgee, as well as the subsequent protests by Palm Island residents, underscores the ongoing tension between Indigenous people and law enforcement officers in Queensland. In this context, Naomi Hart evaluates Pack J’s recent decision to order a fresh inquiry into Mulrunji’s death in custody. Analysing the counterpoint, Dr Thalia Anthony reviews Shanahan J’s refusal to consider circumstances in sentencing Lex Wotton for ‘rioting’.
Zrinka Lemezina
Editor
Special Forum: UN Convention on the Elimination of all Forms of Racial Discrimination
Indigenous Australians and a National Charter of Human Rights: Issues for Consideration
Compiled by Zrinka Lemezina
Aboriginal People, the United Nations and Racial Discrimination: The Request for Urgent Action in the Northern Territory
By Peta MacGillvray
International Human Rights Law, Women’s Rights and the Intervention by Megan Davis
Aboriginal Legal Aid Funding: Discriminatory Policy or a Failure of Federalism?
By Jane Robbins
Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and Torres Strait Islander Legal Services
By Melanie Schwartz and Chris Cunneen
Separating the Inquest from the Trial: The Mulrunji Case
By Naomi Hart
The Disavowal of Context: Sentencing Lex Wotton
By Thalia Anthony
Archives of the ILB from Volume 1, Issue 1 (1981) to 6 (27) 2007 are available online at http://www.austlii.edu.au/au/journals/AboriginalLB and http://www.austlii.edu.au/au/journals/ILB/.