Right to Self-Determination 

According to Indigenous leader Mick Dodson:

'self-determination means recognising Indigenous leadership and supporting Indigenous-led solutions. For governments, it involves abandoning any return to policies of assimilation and paternalism'.

Upon Australia’s approval of the Declaration of the Rights of Indigenous Peoples in 2009, the government emphasised its intention to re-establish mutual trust in order for Aboriginal and Torres Strait Islander communities to be directly and intrinsically involved in the affairs of their communities. The right to self-determination is protected by article 1 of the ICCPR and article 1 of the ICESCR and encompasses the capacity for individuals to have autonomy and control over their future without the unreasonable influence of external factors.The right to self-determination is also recognised in International Human Rights Law. Article 3 and 4 of the UN Declaration on the Rights of Indigenous People (UNDRIP) expressly state that Indigenous people have the right to self-determination including internal, local and financial affairs. The PJC’s 11th Report of 2013 notes that although UNDRIP has not been incorporated into domestic law, UNDRIP is considered to represent customary international law binding Australia and is therefore relevant in assessing the compliance of Intervention legislation with International Human Rights Law.

The International Convention on the Elimination of Racial  Discrimination (CERD) has also been interpreted as requiring governments to obtain informed consent from Indigenous communities before interfering with aspects of their public and private life. Effective participation is crucial to the right to development under International Human Rights Law, which means that Indigenous people need to be given the opportunity to have meaningful participation in determining the objectives of their development and how to realise cultural, social and economic goals. Essentially, the failure to embrace the self-determination of Indigenous people has a direct link to the unsatisfactory status’ of the high proportion of targets outlined in the Closing the Gap report (i.e. health, education and employment), as well as the damaging status of Indigenous incarceration.

Disempowerment of Indigenous communities

The measures of the Intervention have acted to disempower indigenous communities. Governance has shifted from the responsibility of the community to centralised government agencies. The National Congress of Australia's First Peoples have stated that:

"Unless more emphasis is placed on community control and empowerment, children born in the Northern Territory will spend the formative years of their life under a level of government control that does not exist in other parts of Australia, observing the disempowerment of their communities, their leaders and parents."

This is contrary to Article 3 and 4 of the Declaration Of the Rights of Indigenous People. It is evident that the measures are incompatible with the right to determine one's political status freely, advance in the economic, social and cultural spheres without` restriction, as well as exercise the right to autonomy or self-government of local affairs. Moreover, article 18 denotes that Indigenous people possess the freedom to freely engage in decision-making in matters that affect their rights, with this right not being upheld.

Currently, a significantly higher proportion of Aboriginal and Torres Strait Islander compared to others people are not enrolled to vote . This is largely due to the widespread failure to meet Australian Electoral Commission enrolment criteria, including requirements relating to a permanent address and not serving a term of imprisonment of more than three years. However, given that a heightened degree of Indigenous people inhabiting remote areas with no fixed address and their disproportionate representation in the nation's prison population, Aboriginal and Torres Strait Islanders are subjected to profound disempowerment in terms of their capacity to participate in Australia’s voting system.

Removing financial autonomy through the Income Management Scheme

As noted above, under Article 4 of the UN Declaration on the Rights of Indigenous People, Indigenous Australians have the right to autonomy and self-government in relation to financial matters. Yet, under the 2007 Intervention, Aboriginal people who received government payments such as Newstart had 50 percent of their income controlled by government. This policy was applied to entire Indigenous communities, regardless of whether they could manage their own income. Indigenous people were simply told that they could not manage their income on the basis of their status as an Indigenous Australian. The income management programs have not been successful in changing behaviours regarding conduct such as gambling, smoking and excessive alcohol consumption. This combines with the criticism that the measures of the Intervention were a top-down, blanket imposition that were not suited to individual communities and were therefore less effective.

The PJC’s 11th Report of 2013 was also sceptical about the compatibility of the income management scheme with human rights. The report expressed concerns of the scheme’s incompatibility with the right to be free from discrimination based on race, ethnicity and gender, the right to equal protection under the law, the right to social security and adequate standards of living, and the right to privacy. Although the committee accepted the goals pursued by the income management scheme as ‘important and legitimate’ it considered the scheme and its payment enforcement methods, such as the BasicsCard System a ‘significant intrusion into the freedom and autonomy of individuals to organise their private and family lives’. The report noted that despite the income management scheme in the Stronger Futures legislative package removing direct references to race and ethnicity that were present in the NTNER, it still disparately impacted on Indigenous Australians in the Northern Territory. The Income Management Scheme still differentiates Indigenous Australians with racially based treatment within the meaning of Article 2 (1)(a) of CERD.

The 2010 amendment by the Labor Government expanded the income management scheme to 'disengaged youth', 'long-term' or 'vulnerable' welfare recipients, and in circumstances where there is a child protection issue. Although the scheme no longer directly references Indigenous Australians it still has a 'disproportionate effect' on the indigenous population, 94.2% of which is under income management in the NT. Welfare payments are made contingent on children's school attendance and if this was deemed unsatisfactory payments can be cut off. Indigenous Australians are denied the right that other Australians have to an independent review process for decisions made regarding their payments. These measures and limitations were called discriminatory and contravened principles of the ICCPR (Article 17) and the ICESCR (Article 9).

See below (under ‘right to social security’) for further discussion of issues surrounding the introduction of the Healthy Welfare Card (now called Cashless Debit Card).

Removal of customary law in sentencing and bail decisions

Under s 91 of the NTNER Act (2007) a court was prohibited from considering customary law or practices of Indigenous people in relation to sentencing and bail decisions.  These measures substantially continue under the current Intervention legislation,   which has introduced amendments to the Crimes Act to prohibit consideration of culture and customary law in sentencing and bail decision. This means that Indigenous Australians in the NT are the only group in Australia that cannot have their customary laws or culture considered in relation to an offence. This violates sections 9 and 10 of the RDA, which protect the right to equality before the law and prohibit racial discrimination.

The unintended effect of the removal of considerations of customary law was seen in the application of s 91 in Aboriginal Areas Protection Authority v S & R Building & Construction Pty Ltd [2011] NTSC 3. This case involved a company which damaged a sacred Indigenous site in the course of carrying out construction works. In sentencing the company, it was conceded that s 91 of the NTER meant that customary law or cultural practices (i.e the cultural harm caused by the construction company when it degraded the sacred site) was not a relevant sentencing factor.

The unintended application of s 91 was amended by Schedule 4 of the Consequential Amendments Bill which extended ss 15AB and s 16A of the Crimes Act 1914 (Cwlth) to allow the consideration of customary law or cultural background in relation to heritage protection and land rights law.

Nevertheless, there is still restriction on Indigenous customary law as a sentencing factor. The Law Council of Australia submitted that the judicial restrictions imposed by s 90 and s 91 are discriminatory, unnecessary and cultural background should always be considered a relevant factor in determining bail or an appropriate sentence.  This criticism may still be made of the post-2012 Crimes Act provisions, which still restrict courts from considering customary law in bail and sentencing. The application of these provisions in sentencing and determining bail may also mean that Indigenous Australians receive harsher sentences or are incarcerated for longer periods of time, which only compounds the current problems surrounding the overrepresentation of Indigenous Australians in the prison population.