Cases examined by the Special Rapporteur (June 2009 – July 2010)
A/HRC/15/37/Add.1, 15 September 2010
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III. Australia: The Northern Territory Emergency Response
30. The Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, James Anaya, issued a report with his observations on the Northern Territory Emergency Response (“NTER”), which is presented to the Human Rights Council this year (A/HRC/15/37.Add.4, Appendix B). The NTER is a suite of legislation and related government initiatives implemented in 2007, which are aimed at addressing conditions faced by indigenous peoples in the Northern Territory, but that contain several problematic aspects from an indigenous human rights standpoint.
31. The observations follow an exchange of information and communications with the Government of Australia, indigenous peoples, and other stakeholders, including during the visit of the Special Rapporteur to Australia between 17 and 28 August 2009, during which he visited, with the cooperation of the Government, numerous Aboriginal communities in the Northern Territory, including Alice Springs (as well as the Alice Springs town camps), the Bagot community in Darwin, Yuendumu, Yirrkala, Angurugu, Gamgam, and Raymangirr. A full summary of the communication sent and response received is available in the 2008 Communications Report of the Special Rapporteur (A/HRC/9/9/Add.1) (15 August 2008), though they are summarized here.
32. On 10 October 2007, the former Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, Professor Rodolfo Stavenhagen, sent a communication to the Government, together with the Special Rapporteur on violence against women, its causes and consequences, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. In the letter, the special rapporteurs commended the Australian Government on the national emergency response to the “critical situation” in the Northern Territory and its expressed commitment to tackle the issue of sexual abuse of indigenous children in the Northern Territory as a matter of urgency and priority.
33. At the same time, however, the Special Rapporteurs expressed concern about the numerous reports received alleging potential or actual contradiction between the new legislation and international human rights standards that are binding upon Australia. In particular, they expressed concern that the NTER measures “include restrictions on the exercise of individual rights of the members of Aboriginal communities, including for alcohol consumption or use of pornographic materials, as well as a number of limitations to vested communal rights. It was alleged that these measures would arbitrarily limit the exercise of their individual rights on an equal basis with other sectors of the national population, thus amounting to discrimination prohibited under international and domestic law/legislation.”
34. In a letter of 22 November 2007 responding to the Special Rapporteurs, the Australian Government stated that it considered that the measures of the NTER are necessary to ensure that indigenous people in the Northern Territory, and in particular indigenous women and children in relevant communities, are able to enjoy their social and political rights on equal footing with other Australians. The Government added that the NTER includes both exceptional and necessary measures to enable all, particularly women and children, to live their lives free of violence and to enjoy the same rights to development, education, health, property, social security and culture that are enjoyed by other Australians. In this regard, the Government noted that many of the provisions are time limited and designed to stabilize communities so that longer-term action can be taken.
35. During his visit to Australia in August 2009, the Special Rapporteur heard complaints about the NTER through multiple oral statements by numerous indigenous individuals and leaders, not just in the Northern Territory but in all the places he visited in Australia. He also received written petitions against the NTER signed by hundreds of indigenous individuals. Several other indigenous individuals with whom the Special Rapporteur met did speak in favour of the NTER in general and the need for government action to address the problems it targets.
36. The full report of the Special Rapporteur on the NTER and his corresponding recommendations is presented to the Human Rights Council this year for its consideration (A/HRC/15/37.Add.4, Appendix B).