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Expert Commentary: Policy Failure: Legal and Program Implications - December 2010

Greg Marks - Presentation to the NATSI Legal forum - December 2010

Expert Commentary: Policy Failure: Legal and Program Implications

Making Sense of the Policy Context


My own background and experience in this area goes back a number of years to working in the Northern Territory as an education officer in Darwin and Alice Springs and then as a review officer and an Area Officer with the Department of Aboriginal Affairs in Alice Springs. I have also worked in policy roles in Canberra including with DAA and later with ATSIC in the Land Rights and Native Title areas. I have a Masters in international law, specialising in human rights and in particular Indigenous rights. Over recent years I have worked as a consultant in these areas.

I have become increasingly concerned with the drift in policy towards an authoritarian and coercive basis. There has been a return to a type of neo-assimilationism. At the same time policy has become both more complex and opaque. I want to explore some of these concerns today, including by way of two brief case studies.



Current policy in respect of Aboriginal and Torres Strait Islanders is coercive. In this early part of the 21st century this is a startling fact.

I originally identified the coercive trend in Indigenous policy making in a section of the 2006 Social Justice Report that I prepared for the then Human Rights and Equal Opportunity Commission. The Government was in the process of abandoning its COAG whole of Government trials. It was heading instead into an era of what it called ‘strategic' or ‘intensive' interventions. That trend culminated in the Northern Territory Intervention of 2007. [1]

In 2007 I titled an article for the Australian Indigenous Law Review "Coercive Governance: The Failed Promise of the Whole of Government Mantra".

Part and parcel of this coercive aspect of policy is a highly bureaucratic, complex and opaque approach - there are so many acronyms, organisations and coordinating arrangements. A lot of spin but not much transparency.

There is much rhetoric and many claims of success, but the evidence is not convincing. Data adduced to show that programs are succeeding is often anecdotal and inconclusive.

Others have drawn attention to the coercive and unilateralist style that now characterises Indigenous policy. Jack Waterford, Editor-at-Large at the Canberra Times, with a long experience in Indigenous affairs, is a trenchant critic. He has noted the reliance by Government on anecdote as evidence and the reiteration of what he calls ‘factoids'.

A factoid is a simulated or imagined fact, a speculation that is reported and repeated so often that it becomes accepted as fact.

In a recent article referring to claims of success in the implementation of Government programs as set out in the second Six Monthly Report from the Coordinator General for Remote Indigenous Services, Mr Brian Gleeson[2], Waterford noted that:

Like most claims of Macklin achievement, we get figures without cross-references or points for comparison, factoids without context, and statements of the bleeding obvious so presented as to invite the deepest scepticism about whether anything much is happening at all[3].

One example is the Northern Territory Intervention. Through income management and store licensing, it has been claimed to improve food habits and nutrition standards of Aboriginal people on settlements. The evidence for the success of the initiatives has been largely either anecdotal or based on information from interested parties such as store managers.

In fact, a recent study of the impact of income management on store sales in the Northern Territory, reported in the Medical Journal of Australia of May 2010, found that:

Income management ....appears to have had no beneficial effect on tobacco and cigarette sales, soft drink or fruit and vegetable sales.[4] (emphasis added)

There are plenty of examples. Most people are familiar with the under performance of the Strategic Housing and Infrastructure Program (SIHIP) in the Northern Territory. The bureaucratic waste and ineptitude associated with the Intervention, including SIHIP, has been widely reported throughout 2010.[5]

Naomi Mayers, CEO of the Redfern Aboriginal Medical Service, in a recent open letter to the Prime Minister, Julia Gillard, states very clearly her view that the overall policy direction is wrong and that Australia has gone backwards in Aboriginal Affairs. She blames this situation on the Rudd Government having received bad advice both from the bureaucracy and ministerial staff, some of whom had been inherited from the Howard Government.

Her letter is a searing critique and an appeal to the Prime Minister to start listening to the Aboriginal communities.[6]

Les Malezer, respected Indigenous human rights advocate, has also written to the Prime Minister to state that, in the light of the most recent findings by the UN Committee on the Elimination of Racial Discrimination (CERD) he believed that ‘government is incompetent, at legislative and administrative levels, to generate or implement measures suitable to the Aboriginal and Torres Strait Islander peoples'.[7] More of CERD later.

However, there is something of a crescendo of criticism of current policy settings building up. For example, Alice Anderson, former Minister for Indigenous Policy in the Northern Territory Government, stated recently in respect of the Northern Territory:

I just think the intervention is finished, absolutely finished

Communities have actually gone backwards. There is no employment for indigenous people. It's all just training for the sake of training.[8]

So, there is a disjunction. Government energetically forges on down a road which the Aboriginal people, affected communities and informed observers[9] increasingly see as unconnected to the realities of community life.

Aboriginal people have become outsiders, looking on from the margins. One observer, living in a remote Aboriginal community, has described the frantic scramble of bureaucratic interventions and activity as ‘the parallel universes that have been imposed on or have evolved on remote communities. The them-and-us in extremis."[10]

Relevance to this Forum

I want to look today at a couple of examples of policy incongruence.

During this Conference we have been largely looking at direct interactions between the legal system and Aboriginal people or communities - the interface. Matters of immediate concern such as access to justice; freedom from discrimination; legal aid; restorative justice, cultural heritage and similar issues.

But these matters exist in a wider context - that is the context of policy. And this is where difficulties come in. What is the policy that informs the programs that practitioners are involved in on a day to day basis? And this means not just the policy in one sector, such as criminal justice, but the wider policy context as well.

In a settler society that remains to a considerable degree unreconciled the wider policy context is very important, but sometimes harder to get a handle on than sector specific policies and programs.

When we talk about Indigenous policy, or Aboriginal policy, we really are talking about race policy, as uncomfortable as this may sound. At the bottom, informing and determining various policies and programs, there is a vision. There is always a vision, about what settler Australia wants to do with its Aboriginal peoples.

Perhaps the enduring theme in Indigenous policy, beginning with the naïve and misguided dealings of Governor Phillip with the Aborigines of the Sydney region,[11] is, above all others, unilateralism. That is to say, Aboriginal policy is what governments do to Aborigines.

The policy context can easily be overlooked in the need to get things done. There are the technical and professional matters to deal with in ascertaining clients' needs, court work, applications, negotiations, appeals, mediations and arbitrations, etc etc. People focus on what is in front of them. With the pressures of deadlines the wider policy context can be just taken for granted, as self evident.

However, without some comprehension of the scope and ramifications of the policy context, we are all operating in the dark, in a vacuum. We need to stand back from the daily grind, not to smell the roses, but to sniff out the policy.

However, secrecy, obfuscation and deception abound. Agendas are hidden, red herrings swim by.

The increasing tendency is for a policy closed shop, where the elites of Government, whether Ministers, ministerial staff or senior bureaucrats decide and drive policy, with minimal intrusion from the wider public. Les Malezer has described the situation:

It seems that most decisions are made by the minister, cabinet or the Council of Australian Governments (COAG) in complete isolation from any decision-making institutions of the people.

Policy on Aboriginal people is being devised and implemented in a ‘top down' process.[12]

That is to say, in a coercive manner.

And it is all very complex. Complexity makes transparency a challenge

Let us look briefly at COAG's role.

COAG's national agreements and partnerships, in areas such as education, housing and health, have a clear focus on overcoming Indigenous disadvantage and, in addition, COAG has committed a $4.6 billion investment in Indigenous-specific National Partnerships to be rolled out over coming years.

Being aware of COAG strategies is essential to comprehending current policy settings. But delving through COAG documents is like entering a maze.

The key document is of course the COAG National Indigenous Reform Agreement (NIRA). NIRA sets up the Closing the Gap policy agenda:

This National Indigenous Reform Agreement has been established to frame the task of Closing the Gap in Indigenous disadvantage. It sets out the objectives, outcomes, outputs, performance indicators and performance benchmarks agreed by COAG. It also provides links to those National Agreements and National Partnership agreements across COAG which include elements aimed at closing the gap in Indigenous disadvantage.[13]

The various related COAG documents and bilateral agreements around remote services delivery are lengthy, numerous and difficult. The Commonwealth Coordinator General for Remote Indigenous Service Delivery, currently Mr Brian Gleeson,[14] has described the difficulties that even those on the inside have in making sense of the mass of COAG and related documents to implement the National Partnership Agreement on Remote Service Delivery (RSD). He has said:

We often find ourselves referencing or flicking through the various National Partnership Agreements that relate to the National Indigenous Reform Agreement.

The Closing the Gap landscape is difficult to fully grasp even for those closely associated with it. An added layer of complexity comes from having mainstream, as well as Indigenous specific, National Partnership Agreements to consider.

My Office has developed an overview document that summarises the National Partnership Agreements against outcomes, outputs and performance measures wherever they are clear. In cases where they are not stated, we have included overarching themes, strategies and actions.

I would like to share this document with you [ie the reader] as we have certainly found it particularly useful to gain a high level of understanding what the various National Partnership Agreements are seeking to achieve and how we will assess progress.

However, when we look at the document that the Coordinator General has provided to help us through the maze we find that it is itself 65 pages in length. I am no less fazed when I look at the simplifying document.

Incidentally, despite his title as Coordinator General for Remote Indigenous Service Delivery, this is not what Mr Gleeson does, or at least not what he does for most remote Indigenous communities. In fact he is responsible only for the so-called priority communities, of which there are 29 across Australia, fifteen of which are in the Territory. He also has State and Territory counterpart cordinator generals. The Commonwealth and State and Territory Coordinators also have to coordinate amongst themselves.

There are about 600 communities in the Territory, perhaps 60 of which could be classed as medium to large.

Really, current policy is all about a handful of selected major communities. But one would not think this from the title of the position. It takes a degree of searching on the FaHCSIA website to sort through who is responsible for what.

Surely such a highly bureaucratised approach with an overload of complex interconnecting documents and roles is part of a problem faced by all working in Aboriginal affairs at present - making some sense of the policy context.

Where do human rights fit in?

To add in a further layer of complexity, Indigenous policies are not just the matter of domestic politics and governance. Indigenous policies affect the human rights of Indigenous Australians, human rights which are protected by international law.

Indeed, there is a considerable degree of overlap between international and domestic law, for example the Commonwealth's Racial Discrimination Act 1975 itself implements the UN Convention on the Elimination of Racial Discrimination. The content and meaning of the RDA legislation derives from international law.

Despite its reliance on international law in a vast array of arenas, Australia tends to pick and choose when it comes to human rights. This may reflect a degree of parochialism. More likely it reflects a degree of opportunism, and a reliance on a relative degree of ignorance in the Australian electorate, and perhaps even the legal fraternity, when it comes to international obligations.

To put it bluntly, Australian Governments have tended to think they can ‘get away with it' in respect of international law.

However, it is this sense of the international dimension of indigenous rights which former Australian Prime Minister, Gough Whitlam, expressed eloquently in 1972 when he said:

More than any foreign aid program, more than any international obligation which we meet or forfeit, more than any part we may play in any treaty or agreement or alliance, Australia's treatment of her Aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians.[15]

Case Studies

I am going to take two examples of the current policy context, one with a domestic focus and one with an international law focus - really this discussion is too brief to call them case studies, but hopefully they will be illustrative of wider issues at play.

Case Study One - Homelands

Firstly, I take the gap between the aspiration of thousands of Aboriginal people to live on their traditional ancestral lands in small family or clan-based communities and government policy.

These communities are generally referred to as homelands, outstations, or, in a number of situations, pastoral property excision communities. There is no clear or single definition, but that does not matter for the purposes of this presentation.

The Indigenous aspiration to connection to country through living in homelands communities is abundantly clear, has been documented over and over again, and is still being consistently proclaimed by those people.

However, the desire to live in such communities is under threat from Government policy.

Having supported such communities for 40 years or more, governments are now, to a considerable degree, pulling the rug from under these communities.

Not that the aspiration of Aboriginal people to live in these communities has changed. For example, in September of this year a World Council of Churches delegation visited the homeland community of Mapuru in north Arnhem Land. These comments were made to the delegation by community members:

Our fathers and grandfathers established this community - so we could be happy on our own land. So we could be happy, we could feel at home. We feel safe here. And it is really for the children. We want our children to have a school where they learn their culture and language, and Yolgnu and Balanda ways together. This is a good place, good and quiet - good for our kids - we don't want them going to Galiwink'ku or other big places (where there are bad influences) - we want them in this safe place - at school in this place. We don't want to be pushed around by Government. We want to be safe in our own home, away from places where there's lots of trouble.

This is where our grandfathers and parents are buried. This is our spiritual home. This is where we want to live and maybe when it happens, to die. Government people say, "no you go to Galiwin'ku - but we say "no this is our home. This is where we will stay".[16]

I think this is worth quoting at length. There is now a great disparity between Aboriginal aspirations and Government policy in the Northern Territory.

Current policy, driven from the Commonwealth, and implemented, with varying degrees of commitment, by the States and Territories revolves around getting Aboriginal people, over time, out of their homelands.

A very few selected communities throughout Australia have been designated as hubs or growth centres - this is where the lion's share of resources are going. These are the communities that are to turn into ‘real townships'.

On the other hand, homelands and outstations receive minimal support. In particular, and this is highly significant, no new social or community housing will be provided using Commonwealth funds - ever.

The possibility of Commonwealth funding for housing on the 500 or so outstations and homelands communities of the Territory has been ruled out explicitly by the Memorandum of Understanding Between the Australian Government and the Northern Territory Government on Indigenous Housing, Accommodation and Related Services September 2007.[17]

This is a document that Government tried to keep secret. It is a key document. It is, in my view, the single most important document in Aboriginal policy in respect of the Northern Territory over the past 30 years. If you are not familiar with it I would urge you to examine it closely.

The animus in current policy settings against outstations is clear in the MOU. It transferred the responsibility for municipal and local government type functions for outstations to the Northern Territory Government. It provided a totally inadequate transfer of funding of $20m a year for three years.

Paragraph 17 states categorically that ‘No Australian Government funding will be provided to construct housing on outstations/homelands'. There is no criteria of need, viability, size etc. Just a blanket ban on outstation housing.

Outstations already had a huge backlog in housing at the time of the MOU.

The Northern Territory has neither the intention nor the resources to provide outstation housing.

Without housing and housing related infrastructure the likelihood is that these communities will become increasingly dilapidated, housing increasingly unsafe and unhygienic, and the population will be forced, over time, to move to larger settlements and urban fringes simply to have some chance of adequate shelter and some level of services such as education and health. This is indirect coercion, rather than direct dispossession.

Already housing conditions are in many of these communities at third world standards, as attested to by Irene Kahn, Secretary General of Amnesty International, after a visit last year to the Utopia homelands north east of Alice Springs.[18]

If any new houses are to be provided, that will be by the communities themselves. Some may be able to do so, but these are communities with very little material resources and living on the margins of poverty.

Basically, current housing policy is an abrogation of responsibility for social housing in 500 communities.

The MOU of 2007 was an offer the Northern Territory had to accept - as is made clear in the covering correspondence between Claire Martin and John Howard.[19]

There was no consultation with the Aboriginal communities affected by the transfer of responsibility for outstations. This is an outstanding fact.

The second thing to note is that the outstations policy does not stand alone. It is part of a package in respect of the Aboriginal Land Rights Act (Northern Territory) 1976 (ALRA), and it is, at a higher level of generality, part of the project of modernising Aboriginal society. The project of the Australian Government is, in my view, to renovate Aboriginal society and to push to one side its traditions and mores.

So here is a huge gap - one could say a chasm - between Aboriginal priorities and those of Government. I have yet to see any Aboriginal support in the Northern Territory in respect of homelands policy.

Referring back to the international human rights context of Indigenous affairs, it must be remembered too that the right to adequate housing is part of the right to an adequate standard of living contained within UN instruments to which Australia is a party, in particular the International Covenant on Economic Social and Cultural Rights.[20]

In respect of the application of the right to adequate housing for Indigenous people, the UN Special Rapporteur for Housing has affirmed the particular indivisible relationship between the right to land and the right to adequate housing on that land for Indigenous communities where land is an integral part of their cultural identity.[21]

More generally, the Special Rapporteur for Indigenous Rights, Professor Anaya, noted in his report on Australia:

The Special Rapporteur observed the profound connection that many Aboriginal people in Australia have to their homelands, many of which began to be repopulated in the 1970s when elders took their people back to ancestral lands from larger communities run by missions, and the importance of these lands to the lives and culture of Australia's Aboriginal people. Further, homelands are widely understood to have lower levels of social problems, such as domestic violence and substance abuse, than more populated communities. According to reports, the health of indigenous people living on homelands is significantly better than of those living in larger communities, with the death rate among indigenous peoples living in homelands being 40 to 50 per cent lower than the Northern Territory average for indigenous adults. 24 Homelands are also used effectively as part of substance abuse and other programmes for at-risk Aboriginal youth living in more populated or urban centres, such as the Mt. Theo programme..[22]

There are few who could argue with this account. The issue of support for homelands is now part of international consideration and observation. It triggers fundamental obligations of the Australian Government in respect of its Indigenous peoples.

Case study two: international law principles

Australia has over the past ten years come under critical scrutiny from UN human rights bodies and has been subject to quite negative findings in terms of compliance with international law obligations.

In particular, the UN Committee on the Elimination of Racial Discrimination has been critical of Australia, both in respect of the amendments made to the Native Title Act by the Howard Government - the so-called 10 Point Plan in response in particular to the Wik decision, and more recently in respect of the discriminatory aspects of the Northern Territory Emergency Response, ie the Intervention.

The UN Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya, after an official visit to Australia last year, released a quite scathing report on Australia's compliance with its international obligations, again particularly taking note of the Northern Territory Intervention.[23]

Lack of compliance with norms prohibiting racial discrimination is a particularly serious charge, given that the prohibition on racial discrimination is generally considered a norm of universal application, what is termed ius cogens.[24] That is, it is a peremptory norm against which no derogation is possible. There are no valid or acceptable excuses for racial discrimination.

What is interesting is the attempt by Australia to use international law doctrines to argue its way out of charges of racial discrimination. The Australian Government has run over time various international law arguments against CERD's findings.

These arguments are, in my view, doubtful at best, spurious at worst.

Australia argued, both before the CERD Committee in 1999[25] and before a Joint Parliamentary Committee inquiring into the CERD Committee findings in 2000,[26] that at international law there is a degree of latitude that allows States a ‘margin of appreciation' in the implementation of international obligations. According to the Australian Government, the margin of appreciation is accorded in recognition that national institutions are best placed to assess the need for substantive equality measures and to find a balance between a range of competing interests. The former Government further argued that this margin of appreciation applied in the case of its far-reaching amendments to the Native Title Act.[27]

Although admitting that in relation to discrimination on the basis of race the margin of appreciation is narrow, Australia nevertheless argued before the CERD Committee that novel areas of law attract a wider margin of appreciation and that as native title was a relatively new area of Australian law, the Government's discretion was wider than it would normally be in such a matter.[28]

The dangers of such an argument are clear. The margin of appreciation may be used as an excuse for avoiding obligations previously entered into and it can provide a veneer of respectability for internationally illegal behaviour. It can allow for the substitution of the self-interest of domestic political judgment for expert international opinion. The States are not necessarily in the position of being impartial arbiters.

The margin of appreciation argument generally failed to convince. The reasons for this are quite straight forward. For one thing, the language of the CERD Convention, unlike many other conventions, is clear-cut and straightforward. It simply does not contemplate exemptions to allow for negative treatment of racial groups.

And, given the ius cogens status of the norm of non-discrimination, there appears little likelihood of the application of a margin of appreciation being acceptable in any racial discrimination matters.[29]

The use of narrow technical arguments, such as the ‘margin of appreciation' doctrine, to avoid responsibility for lack of compliance with obligations freely entered into by ratifying relevant multilateral treaties is not, in my view, particularly edifying.

A more current argument which is also disconcerting is the argument by both the Howard Government and then by the Rudd Government that the discriminatory measures in the NTER legislation, and there are on their face a number of significant discriminatory measures, are saved from the charge of racial discrimination by their status as ‘special measures'.

We need to look closely at the doctrine of ‘special measures'.

In amending the NTER legislation earlier this year the Minister, Jenny Macklin, stated that:

the government considers that the redesigned measures are special measures under the Racial Discrimination Act...".

But is it that easy? Can Governments simply decide that provisions of legislation are special measures, and therefore are not to be considered as racially discriminatory?

The argument about special measures is essentially an argument about international law. The concept of special measures comes from international law, and has been incorporated into Australian law through the Racial Discrimination Act.

Section 8 (1) of the RDA provides that: "This Part [defining unlawful discrimination] does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies"

The Convention is the UN CERD. In effect, the very brief RDA provision for special measures simply incorporates the CERD provision. If we want to know the meaning and scope of special measures we need to examine the jurisprudence around the CERD provision.

There is considerable authoritative discussion of special measures, including the recent CERD General Recommendation No 32 of August 2009 on the meaning and scope of special measures in the Convention.

What seems clear from comprehensive examination of this General Recommendation and other relevant material is that special measures relate to, and only to, positive discrimination.

By positive discrimination I mean what is often termed affirmative action, or sometimes ‘reverse discrimination'. Such measures are all about providing support or assistance or rights above and beyond what the rest of the society has.

Thus, to overcome historic injustice and systemic discrimination it is recognised in CERD and other places that affirmative measures may be needed for a time to provide real as well as formal equality. Such measures, provided they meet certain criteria, are not considered discriminatory even though they favour one group over others.

The criteria for special measures are set out by Professor Anaya, drawing on CERD:

Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary ... States should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities.

Examples of special measures include affirmative employment practices, and legislation such as the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and the Abstudy scheme - these are situations where something extra and additional is provided for Indigenous Australians, but where nothing, and I emphasise nothing, of their normal citizenship rights are subtracted.

In my view special measures have nothing to do with negative discrimination, that is where the rights of one group are reduced or restricted in comparison to other citizens. Special measures cannot be used to justify negative discrimination. This is so even if the intent is benign.

This year the CERD has rejected Australia's arguments that the NTER provisions are saved from the charge of racial discrimination by their nature as ‘special measures'. The CERD findings include the following:

The Committee expresses its concern that the package of legislation under the Northern Territory Emergency Response (NTER) continues to discriminate on the basis of race as well as the use of so called "special measures" by the State party. The Committee regrets the discriminatory impact this intervention has had on affected communities including restrictions on Aboriginal rights to land, property, social security, adequate standards of living, cultural development, work, and remedies (arts. 1, 2, and 5)...

....It also urges the State party to guarantee that all special measures in Australian law, in particular those regarding the NTER, are in accordance with the Committee's general recommendation No. 32 on Special Measures (2009).[30]



It is not within the province of the Australian Government simply to determine, by words in an Act, what are and what are not special measures. This is clear from the CERD decision in respect of the so-called 10 Point Plan amendments of 1998. It is clear from the CERD decision ten years later in respect of the NTER. It is also clear from the 2009 Report of the Special Rapporteur. He said:

Notwithstanding the effect of this legislative arrangement on the domestic norms dealing with discrimination, the NTER measures must be evaluated autonomously in regard to Australia's international obligations, particularly under the Convention to Eliminate Discrimination. In the opinion of the Special Rapporteur, the discriminatory aspects of the NTER discussed above have not been shown to qualify as "special measures"[31]

The idea that you help people by discriminating against them is peculiar when applied to supposedly equal citizens. As Professor Anaya has commented:

But it would be quite extraordinary to find consistent with the objectives of the Convention, that special measures may consist of differential treatment that limits or infringes the rights of a disadvantaged group in order to assist the group or certain of its members. Ordinarily, special measures are accomplished through preferential treatment of disadvantaged groups, as suggested by the language of the Convention, and not by the impairment of the enjoyment of their human rights.[32]

It is also probably not within the province of the Australian Government to decide, unilaterally and through an instrument of agreement with an Australian Territory that was kept out of the public domain, that Aboriginal people are no longer to be provided with housing assistance because they wish to live on their traditional lands - the very reason for land rights.

In sum, the policy context is difficult. There is an interplay between policy, legislation and programs that is not always consistent with the rhetoric supporting it. It has wider international law implications.

Keeping track of these developments and twists and turns becomes important in an era where policy has become increasingly coercive, assimilationist and elitist.


[1]FaHCSIA, Northern Territory Emergency Response, at

[2] Second Six Monthly Report from the Coordinator General for Remote Indigenous Services, Mr Brian Gleeson, 5 October 2010 at

[3] Jack Waterford, ‘Holistic Disaster Management', Canberra Times Opinion 19, 6 October 2010. See also Waterford, ‘Data adds up to disaster', Canberra Times 23 June 2010.

[4] Julie K Brimblecome, Joseph McDonnell, Adam Barnes, Joanne Garnggulkpuy, David P Thomas and Ross S Bailie, ‘Impact of income management on store sales in the Northern Territory', Medical Journal of Australia - Indigenous Health Volume 1922 Number 10 May 2010, p 549.

[5] See, for example, 3 recent articles by Natasha Robinson in The Australian: ‘Intervention Inc exposed in wastage';, 'In housing, the gap is getting wider (The Australian October 11 2010); and ‘ Bureaucrats "too remote" from indigenous frontline' (The Australian October 12 2010) See also Senator Nigel Scullion, ‘The Indigenous Housing Fiasco' in the National Indigenous Times, November 25 2010

[6] National Indigenous Times, 30 September 2010, ‘The Big Read', Guest Columnist Naomi Mayers , p 32.

[7] Les Malezer, ‘Government Policy in a Bubble', National Indigenous Times, September 30 2010.

[8] Natasha Robinson, ‘More whitefellas but nothing gets done, says Alison Anderson', The Australian, October 11 2010.

[9] See, for example, the documentary ‘Our Generation' at

[10] Jack Waterford, Editor-at-large Canberra Times, ‘Holistic Disaster Management', Opinion 19, 6 October 2010.

[11] See Ian Jacobs, A history of the Aboriginal Clans of Sydney's Northern Beaches, Northside Printing 2003, p 27 ff.

[12] Malezer, see footnote 7 above.

[13] COAG, National Indigenous Reform Agreement (NIRA) - Closing the Gap, at

[14] Coordinator for Remote Indigenous Services Act 2009, at

[15] Whitlam, "Australia's International Obligations" in Nettheim ed, Human Rights for Aboriginal People in the 80s, (Sydney: Legal Books, 1983), at 11

[16] See ‘World Council of Churches in Marparu - Community Update 14 September 2010' at

[17] ‘Memorandum of Understanding Between the Australian Government and the Northern Territory Government on Indigenous Housing, Accommodation and Related Services September 2007' at

[18] See Amnesty International, ‘Irene Khan Calls for New Approach to Tackling Indigenous Disadvantage', media release 18 November 2009 at

[19] Letter from Claire Martin, Chief Minister NT, to John Howard, Prime Minister of 13 September 2007.

[20] See the International Covenant on Economic, Social and Cultural Rights 1966, Article 11.1; CESCR General Comment No 4, 1991, ‘The Right to Adequate Housing' at

[21] UN Special Rapporteur on Adequate Housing, ‘Mission to Australia: Preliminary Observations', Canberra August 2006 at

[22] S James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples, ‘Situation of Indigenous Peoples in Australia', paragraph 70, 1 June 2010, UN Doc A/HRC/15/37/Add.4 at

[23] Ibid.

[24] Article 53, Vienna Convention on the Law of Treaties 1969.

[25] Robert Orr, Australian Government representative before CERD Committee 18 March 1999. Quoted in the Parliament of the Commonwealth of Australia, ‘Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - CERD and i Native Title Amendment Act 1998', June 2000, para 6.16.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] As the separate report of the non-Government members of the Parliamentary Committee pointed out: ‘The arguments put forward by the Commonwealth Government on the existence of a "margin of appreciation" to take account of the fundamental nature of the prohibition on racial discrimination in international law, and the unqualified language of the CERD' Ibid, 130.

[30] CERD, ‘Concluding observations of the Committee on the Elimination of Racial Discrimination, Australia', UN Doc CERD/C/AUS/CO/15-17, 27 August 2010, paragraph 16.

[31] Anaya, footnote 22 above, paragraph 20.

[32] Ibid, paragraph 21.


Reproduced with the kind permission of Greg Marks.