Violating the right to health, safety and freedom from violence

Opinion Article

2012 December, 21

Few Aboriginal families in Queensland are not connected to Palm Island, an idyllic island in the middle of the Great Barrier Reef whose people were the victims of a cruel history. Palm Island was known as the "punishment island", the place to which indigenous people from all corners of Queensland were forcibly removed. Any person who questioned the authority of the superintendents of Queensland's Aboriginal Reserves were peremptorily removed to there. 

A grandfather of mine was so removed. Countless Guugu Yimidhirr people were torn from their families, never to be seen again, during the course of the 20th century, as were tribes from across the state. They suffered a tragic history of brutalisation at the hands of the state. That this history is still alive was attested by the appalling circumstances and aftermath of the death of Mulrunji Doomadgee, well reported by this paper. 

So when a resident of Palm Island, Joan Maloney, took her case to the High Court challenging the validity of the alcohol management plan put in place by the Queensland government in 2006, it could be seen as a proper defiance of racial discrimination. 

But I maintain it is not.

generations were born with foetal alcohol syndrome, and as the cycle of alcohol abuse escalated. 

Perhaps government inaction was born from respect for self-determination. Or perhaps it was simply a new formulation of the old racist reticence: a feeling that protecting black women and children from violence was not a priority. Would governments have acted more decisively if communities like Palm Island were white? 

The implementation of the AMP on Palm Island was not racial discrimination. It was the abandonment, finally, of racist neglect. After decades of discriminatory indifference to the suffering of Aboriginal people, the implementation of the AMP was the government finally taking notice and taking some action to address it. 

At the Cape York Institute we have thought hard about the validity of measures like the AMPs with respect to Australia's obligations to eliminate racial discrimination. We are committed to the principle of equality before the law and eliminating legal and public policy distinctions on the illegitimate basis of race. These convictions have formed an integral part of our advocacy in constitutional reform and recognition of indigenous Australians. 

We contend that AMPs are not racially discriminatory. In fact, AMPs are measures to ensure that Aboriginal people enjoy their human rights to health, safety and freedom from violence. 

AMPs apply to residents in particular communities. The laws apply equally to everyone, white or black. Certainly, however, the residents of these communities are predominantly Aboriginal. 

For the purposes of the Racial Discrimination Act, it needs to be asked what right or freedom is possibly being indirectly breached by the AMPs.

Those supporting Maloney's challenge in the name of human rights, including the National Congress of Australia's First Peoples, have got it wrong. AMPs are not a breach of human rights. They protect human rights. Aborigines were originally sent to the Palm Island mission in chains. Like all Queensland Aborigines of that time, Palm Islanders suffered explicit racial discrimination. Reserve life was tightly regulated, segregated and totally dry. 

In the 1970s the protectionist era ended and the rights era began. Aboriginal people got equal wages, but in reality, new government welfare payments replaced real work. It became legal for Aboriginal people to drink alcohol. On Palm Island, the beer canteen was opened. So began the unintended consequences of what were, in principle, worthy goals: equality before the law and equal rights. 

Nonetheless, destruction, violence and social breakdown ensued. Social problems including homicide, suicide and child neglect escalated alarmingly. On Cape York a similar story unfolded. The ideological impetus of the time, founded correctly in equality and non-discrimination, did not foresee the terrible social consequences. 

Unfortunately for the victims of the new black-on-black, predominantly alcohol-fuelled violence, the rights era also saw the emergence of a new politically correct cultural sensitivity. Authorities, purporting to respect indigenous rights to self-management, increasingly practised non- Maloney's lawyer, Chris Ronalds SC, argues that AMPs criminalise behaviour that wouldn't be criminal in non-Aboriginal communities, and that AMPs infringe Aboriginal people's right to possess property, namely liquor. But the right really being defended from discriminatory infringement here is the perceived right to drink. I say perceived right, because in actuality, no such right exists. 

In Australia, drinking alcohol is a privilege that comes with responsibilities and legal restrictions. Australia-wide there are restrictions on age, drinking in public, serving intoxicated people, the times at which alcohol can be served, driving while intoxicated, and so on. Alcohol restrictions in Aboriginal communities, or anywhere, can therefore be justified where they are implemented to protect the common good. 

Like any of these restrictions, AMPs in Aboriginal communities are measures based on need, not race. If a white community demonstrated the same need for alcohol intervention, then those communities should have AMPs in place too. 

But the need for decisive alcohol intervention in Aboriginal communities was, and still is, overwhelmingly evident in the data. The alcohol-related death rate for Indigenous people is about five times the rate for nonindigenous people. Indigenous people are overrepresented in homicides and assaults. The rate of family violence has been estimated as being eight to 10 times greater than that in non-indigenous communities. 

Police say 90 per cent of family violence is alcohol fuelled. Child removal is also disproportionately high, because of exposure to family violence and increased neglect. 

The need is there. And the evidence shows that AMPs work to address that need. Evidence shows that the stricter the AMP, the greater the reduction 

We agree that consent and proper consultation are important, and indeed, Cape York AMPs were community driven and community requested. But getting consensus on issues like these is difficult in any community. The hard drinkers will always oppose AMPs. In white communities, nobody asks for the prior consent of residents before a ban on public drinking is introduced. Such a measure simply responds to a need, and a person's democratic vote is voice enough. Arguably, it should be the same in Aboriginal communities. Governments need to be able to act in the best interests of its citizens, regardless of race.

What is more important than consent is responsibility. Governments must protect Aboriginal people's human rights in equality with other Australians. If Aboriginal people suffer violence disproportionately to other Australians, governments must address this.

AMPs are measures to ensure that indigenous people enjoy their human rights to safety, health and freedom from violence in equality with other Australians. The right to be safe, healthy and free from violence outweighs any perceived right to drink.

Violating the right to health, safety and freedom from violence