Politicians ruling by stealth as wilful ignorance flourishes
12th Mar 2012
Opinion piece written by Mandy Wyer for attribution to ALA National President, Greg Barns. It appeared in the Sydney Morning Herald Opinion page on Friday 16 March 2012.
Increasingly substandard Australian federal laws continue to be adopted because of a centralised, paternalistic approach to government undermining basic human rights in Australia.
Poor legislation is exacerbated by the absence of a mechanism that would help stop such a paternalistic approach – that of a federal human rights document.
Everyone should have the right to be treated equally under the law, but this is not happening in Australia. Self-serving politicians and party politics are undermining essential human rights such as the right to freedom from racial discrimination, the right to freedom of association, the right to equality before the law, the rights of the child and common law rights to sue for compensation.
This should concern all Australians, as it shows the processes to ensure that the voice of the community is being heard, by politicians, on both sides is inadequate. It also reveals a lack of legal protections for the human rights of everyone in Australia.
This was seen last week, when the proposed Stronger Futures legislation was briefly debated and passed in the House of Representatives on Monday, 27 February, the day of the leadership challenge, despite the fact that a Senate report on the legislation was not due for release until tomorrow (March 13).
Affected communities have consistently raised objection to the legislation, which has been condemned by the National Congress of Australia’s First Peoples as a ‘big stick approach’.
What is the point of holding a consultation if the results from that consultation are not used to inform parliamentarians prior to voting on an issue?
A recent report by Jumbunna Indigenous House of Learning, provides further evidence of poor government consultation with Indigenous communities.
A Senate committee is currently examining the legislation, with acknowledgement by Senator Scullion that the consultations previously conducted by the government were ‘rubbish’.
The legislation was voted on by a sparse number of MPs occupying the lower house at the time. Of those who were present, many were unfamiliar with its practical implications, yet it was still accepted, with little debate, by all parties except the Greens.
Under the House of Representatives Quorum Act 1989, one-fifth of all ministers are necessary for a vote to be passed – so, of 150 members, only 30 need to be present to vote.
The proposed legislation was placed on the House program at the eleventh hour, after the distracting leadership challenge was announced, and was voted on at 6.01pm – the very time a film and consultation event started as an educational tool for parliamentarians prior to voting on the legislation. Frail Indigenous elders flew several hours from remote areas of Australia to Canberra to attend and address the event. Their effort was disregarded by most of their parliamentary representatives. Only five politicians bothered to walk down the corridor, to consider their views.
But a situation continues where no parliamentary process exists to impel the House of Representatives to wait for relevant reports before voting on legislation. And what this means is that the House can call for endless research, and pay zero attention.
This increasing bureaucracy is providing Australians with a false idea that they are being listened to, all the while devaluing important parliamentary committee investigations designed to inform politicians prior to vote-casting.
While a new Act came into operation on 1 January 2012, requiring that new legislation introduced must be tabled with a statement of human rights compatibility, it does not apply to Stronger Futures, or any other bill, introduced before 31 December, 2011.
For government it appears to be about going through the motions of following the right processes, while not actually doing them properly at all. This is government by stealth.
Original notification of the proposed Stronger Futures legislation was also only given in November, limiting the availability of interested parties to properly scrutinise it before the Christmas holiday period.
Stronger Futures legislation is a concern because of the disempowerment it will create in Indigenous communities, the resulting increase in Indigenous incarceration likely to result, and the imposition of ‘special measures’ (which, according to internationally established 2009 criteria, don’t constitute valid reasons to suspend the Racial Discrimination Act on grounds of protecting Aboriginal communities).
Under just one of its ‘special measures’, Northern Territory’s Indigenous people can be jailed for six months if in possession of alcohol in a prescribed area and up to 18 months for more than 1.35 litres of alcohol. This prohibition includes a glass of wine in a person’s own home at the end of a busy working day. This hardline paternalism is placed on no other community in Australia and flouts the concern of over representation of Indigenous people in Australian jails.
In the federal government’s Stronger Futures Report on Consultations, it is claimed that the majority of Aboriginal people supported Stronger Futures proposals, but evidence shows this is simply not true.
Despite the government claiming that Indigenous people wanted to remove welfare payments from families whose children were not attending school, collected data shows not a single request for such action; rather, the main thrust was the need for bilingual learning to encourage Indigenous children to attend school.
And of the 79 areas defined as ‘community living areas’ listed on the Department of Family, Housing, Community Services and Indigenous Affairs website, and therefore subject to Stronger Futures measures, only 12 communities were consulted; and of the 45 ‘town camps’ listed, only 11 were involved in the discussions.
This amounts to consultations occurring in approximately 15% of community living areas; and 24% of town camps without all community representatives being present – in some cases only one person attended such consultations without a translator to translate proceedings into their native tongue.
Even in circumstances where consultation did take place, there was no guarantee that communities were listened to, or that they received adequate notice of the consultations. Some communities received 24 hours notice via an A4 poster on a wall.
The provisions in the legislation echo and consolidate exactly those measures described in former minister, Mal Brough’s, speech on introducing the Northern Territory National Emergency Response Act (the Northern Territory Intervention) into Parliament in 2007.
So, essentially, the government has gone in again, as it did in 2007, with a prior agenda, and used the consultations to whitewash and legitimise their own plans to control Indigenous communities.
Consultation should facilitate the granting of ‘prior, informed consent’ of communities as provided under Article 19 of the Declaration on the Rights of Indigenous People. It is unethical to represent to communities the concept that their opinions matter, then portray to the Australian public that communities have granted their consent, when clearly they have not.
Of the Alice Springs consultation, local Indigenous elder, Barbara Shaw, who flew to Canberra to speak to politicians about her Stronger Futures concerns as part of the Our Generation film and consultation event on February 27, said the Alice Springs consultation had been skewed towards the views of Alice Springs business people and Indigenous health workers rather than Indigenous people themselves.
“Aboriginal people just stood at the back and watched, because that is what we tend to do,” Ms Shaw said.
“It was not an accurate picture of what Aboriginal people really wanted, but it was made out that it was,” she told the Australian Lawyers Alliance.
Other examples of such flawed consultations include the federal government consultation on a proposed Federal Charter of Rights Act, where the government gave scant notice and poor interpretation of comments made to it during its year of information gathering in 2009.
The Australian Lawyers Alliance actually notified the editor at the local newspaper at Tennant Creek, who knew nothing at the time, about consultation delegates flying in to speak with locals. She informed the ALA that no advertisement had been placed in the newspaper to notify of the public consultation.
The policy-making process behind the National Disability Insurance Scheme is similarly suspect, as policy is being developed without disability advocacy group engagement – which is more than likely in violation of the Convention on the Rights of Persons with Disabilities.
By contrast, insurance companies were heavily involved in the process. In fact, NDIS started as an initiative to see how insurance companies could be more involved in the disability sector rather than with the disability sector itself.
Again, in the treatment of asylum seekers who come to Australia, the issue has become a political football, rather than acknowledging the internationally recognised right of an individual to seek refuge when they are fleeing persecution.
Despite a Senate Inquiry into immigration detention, statistics from February 2012 reveal that there are still 1,079 children and 4,255 adults locked in detention, a further 1,049 in community detention, and of these 20% of the total are less than 18 years old, which is in breach of the Convention on the Rights of the Child and the Refugee Convention.
The various examples of government deception in its process are not confined to either side of the political spectrum. Politicians are seeking greater control over the lives of Australians in a bid both to both feather their own nests and score political points in many different areas of law.
This is obviously of great concern because of the cost to justice, freedom and rights of the individual, something the ALA works hard to promote and something all Australians should be fighting in the interest of a sound democratic process.
In other liberal democracies, human rights are the overarching consideration upon which new laws can be struck down. In Australia, policy-making mechanisms appear to pay lip service to human rights considerations only, and policy continues to be developed that is in breach of international law.