Australian Indigenous Law Reporter
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Like the Human Rights Committee, the Committee on the Elimination of Racial Discrimination is empowered to receive:
512. The Committee considered the ninth periodic report of Australia (CERD/C/223/Add.1) at its 1058th and its 1059th meetings, on 11 and 12 August 1994 (see CERD/C/SR.1058 and 1059).
513. The report was introduced by the representative of the State party, who drew attention to the various measures his Government had taken in the context of action to combat racial discrimination since the submission of the preceding report. The policy of multiculturalism launched in 1989 had been marked by the adoption of the National Agenda for a Multicultural Australia and of strategies to eliminate the language, cultural, racial and religious barriers that still existed in the country and to ensure the equitable distribution of resources for the benefit of the entire community.
514. Major progress in the implementation of the Convention had been made for
the benefit of Aboriginals and
Torres Strait Islanders. An independent
parliamentary committee had just submitted recommendations suggesting drastic
reforms to ensure
that the strategies drawn up in favour of the Aboriginals
would be effective in practice.
A very broad process of reconciliation had
been instituted in 1991 to meet the indigenous peoples aspirations and expand
possibilities
of dialogue between Aboriginals and the non-Aboriginal community
at all levels. The post of Aboriginal and Torres Strait Social Justice
Commissioner had also been established to make recommendations on the enjoyment
of human rights by Aboriginals and the implementation
of educational programmes
on such questions.
515. The report of the Royal Commission into Aboriginal Deaths in Custody had been favourably received by the federal, state and territory governments. Some $A 400 million had been committed over five years for the implementation of the 339 recommendations contained in the report. The specific application of the report was nevertheless difficult, since over two thirds of the recommendations related to the police, prisons and administration of justice in the states and territories, where federal legislative power was limited.
516. The Aboriginal and Torres Strait Islander Commission, which had just been set up, consisted of 35 democratically elected regional councils and had a $A 1 billion budget. It represented a very innovative approach to autonomy in Australia. Its objectives were to ensure maximum participation by Aboriginals in the formulation and implementation of policies and programmes for their benefit, to promote Aboriginal self-management and self-sufficiency and to take part in the economic, social and cultural development of the Aboriginals.
517. The decision handed down by the High Court in the Mabo case on 3 June 1992
had been significant in many regards. It related
to the rights of the Meriam
people to the lands of the Murray Islands in Torres Strait. The High Court had
decided to recognize a
form of native title to land and had rejected the
historical proposition that
Australia had been terra nullius at the
time of colonial settlement. That decision was of concern primarily to
Australian Aboriginals who had maintained a traditional
lifestyle and ancestral
links with the land where native title had not been extinguished. The Federal
Government had adopted the
Native Title Act in November [sic] 1993 to
give effect to that decision and had set up the $A 1.
[5] billion National
Aboriginal and Torres Strait Islander Land Fund.
Problems had nevertheless
arisen in connection with the implementation of the Mabo decision by some
states and territories, especially
the Government of Western Australia, which
had tried to invalidate the Supreme [sic] Court's decision.
518. The report recently submitted by the Race Discrimination Commissioner stressed that persons from non-English-speaking backgrounds continued to have economic and social problems, particularly in respect of access to employment. Many specific measures had been suggested by the Commissioner to solve those problems. A bill on racist violence and racial defamation had also been submitted, but had not yet been discussed.
519. Members of the Committee commended the State party for its regularity in fulfilling its reporting obligations and for the seriousness with which it took its obligations under the Convention. Appreciation was expressed for the quality of the report, which had been prepared in accordance with the Committee's guidelines for the preparation of State party reports, as well as for the comprehensiveness of the additional information submitted to the Committee prior to and in the course of the discussion. They expressed their appreciation for the opportunity to engage in a frank, serious and extremely constructive dialogue with a very high-level delegation. The opportunity given to the Social Justice Commissioner (Human Rights and Equal Opportunity Commission), who was independent from the Government, to provide information in reply to questions raised and comments made by members of the Committee was highly commended and considered to be an example to be followed by other reporting States.
520. Regarding the general application of the Convention in Australia, members asked for more detailed information on the way in which the concept of Aboriginal was defined with respect to the recognition of Aboriginal land rights; on the measures taken to inform individuals of their right to submit communications under article 14 of the Convention; on the measures adopted in the light of the recommendations of the Race Discrimination Commissioner; on the way in which the reconciliation procedure was applied for the benefit of non-Aboriginal communities; on the reasons why the reconciliation process was not expected to produce results until 200l; on the total number of immigrants in Australia; on the status of Christmas Island and the Cocos (Keeling) Islands; and on the Australian policy on the granting of entry visas. More generally, members asked whether the proliferation of programmes, strategies and other measures designed to combat racial discrimination, in particular against Aboriginals, might not lead to duplication and to coordination and centralization problems; and what was the exact status of the Convention in the domestic legal order, particularly at the federal level.
521. With regard to article 2, read jointly with article 4 of the Convention, members asked for clarifications regarding the implementation of the Mabo decision and of the Native Title Act; on the contradictions between the position of the federal Government and that of the states or territories in that regard; on the envisaged procedure for compensating the majority of the Aboriginal population who would not benefit from the Mabo decision, particularly Aboriginals living in urban areas; on the recognition of Aboriginal rights to natural resources and the protection of their environment; on the Government's position regarding the ratification of ILO convention No. 169, which stipulated that indigenous peoples had the right to compensation for damage resulting from programmes for the exploration or exploitation of their lands; on the question of mineral royalties as envisaged in the Wik case currently before the Queensland courts; and on the functions and activities of the Council for Aboriginal Reconciliation, which did not yet seem to have any clear focus.
522. Regarding article 3 of the Convention, members asked for information on the segregation in housing and education which seemed to exist in some parts of Australia, such as Toomelah and Goonawindi [sic].
523. Members asked for clarification of Australia's reservation to article 4 (a) and in particular on the reasons for which the reservation had not been entered promptly in accordance with the terms of the reservation itself; on problems encountered in implementing article 4 of the Convention in Tasmania; on the measures taken to deal with racial violence against persons of a racial or ethnic origin different from that of the majority of Australians; on the inquiries conducted and penalties imposed following the violent action of the police against Asian students during the confrontations in June 1993; and on the conclusions of the Ombudsman following the inquiry into interracial relations in New South Wales which he had conducted at the request of the state Minister for the Maintenance of Order.
524. With regard to article 5 of the Convention, members asked for further information on the government policy to promote multiculturalism launched in 1989; on measures taken to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the difficulties encountered in that regard at state or territory level; on the participation of Aboriginals in the electoral process and, in general, in the conduct of public affairs; on measures taken with regard to such phenomena as infant mortality, disease, street violence, poverty and unemployment, to which Aboriginals were particularly exposed, especially those living in urban areas; on the number of Aboriginals in the criminal justice services, on prison staff, and in the police forces and social services; and on the recognition of Aboriginal customary law by the Australian courts. Additionally, clarification was requested of the treatment of refugees or asylum-seekers, particularly "boat people", who were detained for long periods of time in unsatisfactory conditions in camps while their applications were being processed.
525. Details were requested on the effects of the numerous education programmes envisaged to implement article 7 of the Convention.
526. In his reply, the representative of the State party stressed the key role played by the Human Rights and Equal Opportunity Commission in encouraging community awareness of the rights available under the Convention. The Convention itself was appended to the Racial Discrimination Act and thus formed part of Australia's domestic legislation. Monitoring of the many human rights initiatives was a considerable task and the potential for duplication did undoubtedly exist. There was, however, good cooperation between the key human rights agencies, which helped to reduce the latter problem. On the subject of Australia's ratification of ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, indigenous people in Australia had asked for further time to consider the matter, since some believed that the Convention did not go far enough.
527. The reconciliation process was a national initiative designed to apply both in urban areas and in more remote parts of the country. It was intended to act as a focus for deeper changes which would inevitably take many years to complete. There was an accumulated backlog in the response to human needs in the fields of employment, housing and many other areas and long-term public awareness and public education campaigns would be required to overcome the false and stereotyped images portrayed by the education system and the media.
528. In reply to questions relating to article 3 of the Convention, the representative said that, although living conditions in Toomelah had been considerably improved, Toomelah was one of hundreds of Aboriginal communities in which living conditions needed to be further addressed.
529. With regard to articles 2 and 4 of the Convention, the representative stated that the enactment of the proposed national legislation on racial vilification would make it easier for Australia to withdraw its reservation on article 4 of the Convention, although other factors would have to be taken into consideration.
530. There was, as yet, no provision in Australian law for a right to compensation for loss of lands and it might be necessary to await further judicial pronouncements before a final decision was made in that regard. Many Aboriginal people were anxious to ensure compensation not only for lost land, but also for the social, economic and cultural deprivation of the Aboriginal people over many years. Although the Mabo case applied only to a rather small number of persons, the principles involved had subsequently been introduced into domestic law through the enactment of the Native Title Act 1993. While applicants for native title had to prove a traditional connection with their land, that connection need not necessarily be a physical one. Sizeable areas of land all over Australia had already been returned to indigenous ownership, even before any decisions of the National Native Land Tribunal. Sixteen per cent of the Australian mainland was under the ownership of indigenous people. Since indigenous land was not considered sovereign territory in Australia, the state or territory law prevailed in matters of national concern, such as environmental protection.
531. Referring to the possibility of states overriding the Mabo decision, the representative said that, given the importance of the Convention, the Racial Discrimination Act and the Native Title Act, such action was unlikely. Furthermore, the Federal Court and the High Court had the final say in questions of interpretation of common law and the Constitution. They could -- and did overturn decisions of state or territory judiciaries if they were inconsistent with Commonwealth law, the Constitution or judicial precedent.
532. In reply to questions concerning article 5 of the Convention, the representative stated that the Royal Commission into Aboriginal Deaths in Custody had been primarily directed towards state and territory governments and concerned matters of day-to-day administration in which the Commonwealth Government had limited capacity to enforce compliance, since issues relating to the police, prisons and criminal justice reform had traditionally been regarded as matters within the exclusive jurisdiction of state and territory governments.
533. There were regrettably no indigenous members of the federal Parliament and only one indigenous member of a state parliament. There was, however, evidence of significantly increased enrolment and participation in elections by indigenous people throughout Australia and an increasing number of indigenous members of local government councils. Furthermore, there was increasing indigenous participation in trade unions and in business, supported by the national representative bodies and actively promoted as part of the reconciliation process, and a strategy has been initiated for the recruitment of indigenous people into public sector employment at state, territory and federal levels.
534. With reference to Australia's treatment of non-English-speaking people, and in particular refugees, asylum-seekers and "boat people'', the representative stated that the Government's human rights policies were based on a fierce opposition to any form of discrimination. Although Australian policy regarding African immigration had been discriminatory in the past, the Government was now proud of its non-discriminatory policy on immigration. Australia's intake of refugees and displaced persons was one of the highest in the world. During 1992 and 1993, people of more than 60 nationalities had been admitted to Australia, which testified to the Government's non-discriminatory response to the refugee problem. An intense public debate was, however, in progress concerning the acceptance of "boat people", since some sectors of the population feared that they were being given preferential treatment.
Concluding observations
535. At its 1067th meeting, on 19 August 1994, the Committee adopted the following concluding observations.
(a) Positive aspects
536. The state party is commended for its regularity in fulfilling its reporting obligations and for the seriousness with which its takes its obligations under the Convention. Appreciation is expressed for the quality of the report, which has been prepared in accordance with the Committee's guidelines for the preparation of State party reports, as well as for the comprehensiveness of the additional information submitted to the Committee prior to and in the course of the discussion.
537. Appreciation is also expressed for the opportunity to engage in a frank, serious and extremely constructive dialogue with a delegation led by the responsible minister. He was accompanied by the Social Justice Commissioner (Human Rights and Equal Opportunity Commission), himself from Australia's indigenous population and the holder of an independent post. The Commissioner was present to provide information in reply to questions raised and to mention matters on which he had his own views. Members of the Committee highly commend the composition of the delegation, describing it as an example to be followed by other reporting States.
538. Satisfaction is expressed for the numerous measures taken in Australia, since the consideration of the previous report, to improve relations between all groups and in particular the situation of Aboriginal people. The Government's efforts to establish a multicultural society in Australia, despite some opposition, are welcomed. Note is taken, in that regard, of various programmes and strategies, such as the Access and Equity Strategy, the National Agenda for a Multicultural Australia and the Community Relations Agenda, which provide a framework designed to encourage different cultural groups to share their distinctive heritage and seek to ensure that all Australians enjoy equality of treatment and opportunity in all spheres of public life. The Council for Aboriginal Reconciliation Act 1991 is welcomed as a measure of great potential interest.
539. The broad responsibilities and powers of the Commonwealth Human Rights and Equal Opportunity Commission in the implementation of the Racial Discrimination Act of 1975 and in conducting public inquiries into human rights matters are noted with particular satisfaction. The activities of the Aboriginal and Torres Strait Islander Commission and the transfer of certain specific responsibilities to the Torres Strait Regional Authority are noted with appreciation. The noteworthy conclusions and recommendations of the Royal Commission into Aboriginal Deaths in Custody and the consequent establishment of the Aboriginal and Torres Strait Social Justice Commissioner are also welcomed.
540. The attention paid by the judiciary to the implementation of the Convention is particularly appreciated. The decisions of the High Court of Australia in Mabo v Queensland constitute a very significant development. It is noted with satisfaction that the decision rejected the proposition that Australia was terra nullius at the time of colonial settlement and recognized the survival of native title to land where this title had not been validly extinguished. The Commonwealth Government's follow-up in its Native Title Act 1993 and the establishment of the National Aboriginal and Torres Strait Islander Land Fund are also welcomed.
541. The readiness of the Commonwealth government to show leadership in securing a better implementation of the Convention is much appreciated. For example, it is likely to use its influence to see that police training is improved with respect to the avoidance of racial discrimination.
(b) Principal subjects of concern
542. It is noted with concern that, although the Commonwealth Government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of states and territories which have almost exclusive jurisdiction over many of the matters covered by the Convention and cannot be compelled to change their laws. Programmes and strategies designed, at the federal level, to promote reconciliation and social justice and to address the problems associated with Aboriginal deaths in custody, could be jeopardized by lack of cooperation from state or territory governments. The Committee will follow with concern any relevant developments in the relations between the governments in Australia.
543. The situation of the Aboriginal and Torres Islander people remains a subject of concern, despite efforts aimed at remedying the injustices inherited from the past. Concern is expressed that Aboriginals continue to die in custody at a rate comparable to that which led to the appointment of the Royal Commission.
544. Legal proceedings for the recognition of native title and for responding to land claims have been protracted. The necessity for claimants to prove that they have maintained their connection with the land and that their title has not been extinguished can be an exigent condition. That persons who identify as Aboriginal but whose ancestors are predominantly non-Aboriginal may not qualify as Aboriginal with respect to land rights may become a further matter of concern. Only a very small percentage of the Aboriginal population will benefit under the Native Title Act.
545. Aboriginals continue to suffer disadvantage in such areas as education, employment, housing and health services. Their participation in the conduct of public affairs is disappointing. It is, once again, noted with concern that, according to various social indicators, Aboriginals are more deeply affected by social problems such as alcoholism, drug abuse, delinquency and incarceration than any other social group in the country.
546. The situation of members of other, non-English-speaking, minorities, particularly refugees or asylum-seekers, as regards enjoyment of their rights and freedoms under article 5 of the Convention is also a matter of concern. Immigrants from the African and Asian regions seem, according to non-governmental sources, not to be adequately protected against discrimination.
(c) Suggestions and recommendations
547. The Committee recommends that Australia pursue an energetic policy of recognizing Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past. The Commonwealth Government should undertake appropriate measures to ensure a harmonious application of the provisions of the Convention at the federal and state or territory levels. The recommendations adopted by various bodies entrusted with the protection of Aboriginal rights -- the Royal Commission into Aboriginal Deaths in Custody, the Human Rights and Equal Opportunities Commission, and the Aboriginal and Torres Strait Islander Commission should be fully implemented by all those concerned, particularly state and territory governments.
548. The Committee recommends the strengthening of measures to remedy any discrimination suffered by members of non-English-speaking minorities and Aboriginals in the fields of the administration of justice, education, employment, housing and health services and to promote the participation of all in the conduct of political affairs. Law enforcement officials should receive more effective training to ensure that in the performance of their duties they respect as well as protect human dignity and maintain and uphold the human rights of all. Similarly, the State party should continue to strengthen its education and training programmes. The Committee hopes to receive more information on these matters, particularly with respect to non-English-speaking minorities, in Australia's next periodic report.
549. The Committee recommends that the State party adopt appropriate legislation with a view to withdrawing its reservation to article 4 (a) of the Convention.
550. The Committee recommends that the report submitted by the State party to the Committee and the concluding comments of the Committee be disseminated as widely as possible in Australia in order to encourage the involvement of all sectors concerned in the elimination of all forms of racial discrimination.
551. The Committee draws the attention of the State party to the amendment to article 8, paragraph 6, of the Convention, which was approved by the Fourteenth Meeting of States Parties and by the General Assembly in its resolution 47/111, and encourages the State party to expedite its action formally to accept that amendment.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/9.html