Nettheim, Garth; Simpson, Tony --- "Australia Reports to UN Committee on the Elimination of all forms of Racial Discrimination (CERD)" [1988] AboriginalLawB 59; (1988) 1(35) Aboriginal Law Bulletin 10

• Australia Reports To Un Committee On The Elimination Of All Forms Of Racial Discrimination (Cerd)

---

Australia Reports to UN Committee on the Elimination of all forms of Racial Discrimination (CERD)

by Garth Nettheim and Tony Simpson

In 1975 Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination. To implement the convention within Australia Parliament enacted the Racial Discrimination Act 1975.

Article 8 of the convention established an 18-member Committee on the Elimination of Racial Discrimination,(CERD) to which, under article 9, states parties of the convention are to submit periodic reports "on the legislative, judicial, administrative or other measures which they have adopted" to give effect to the provisions of the Convention.

Australia's 5th report to CERD was completed in 1985. Because of funding difficulties affecting CERD's operations, it was not able to consider the report until 2 August 1988 in Geneva.

Australia was represented before the Committee by a strong delegation comprising Ambassador Robertson, head of the Australian permanent mission in Geneva, Mr Stuart Hume, his deputy, Mr Rob Winroe (DAA), Ms Irene Moss (Race Discrimination Commissioner) and Mr Harry Williams (Foreign Affairs). Ambassador Robertson gave a reasonably long statement in introducing the report because of the need to update the information.

Australia was complimented on the report, and on the statement, by members of the Committee who appreciated its "rich content". They also put a number of questions and comments to the government on the following topics, among others.

• Australia was pressed on its policy favouring the retention of the current basis for funding CERD itself, as laid down in the Convention, ie, that the states parties to the Convention (some 125 countries) should pay the costs. Many countries are not paying their dues, and some CERD members would wish the costs of the Convention to be transferred to the UN budget. Australia's "user pays" approach serves to underpin a system under which there is very limited capacity to impose critical scrutiny on the performance of the states parties in relation to their obligations under the Convention.

• One probing question noted that the prohibition of racial discrimination in the Convention relates to economic, social and cultural rights, as well as to civil and political rights. The expert asked why the Human Rights and Equal Opportunity Act gave powers to the Commission in respect of the International Covenant on civil and political rights but not the International Covenant on Economic Social and Cultural Rights. The Ambassador's response was to the effect that rights in the latter Convention are less precise and more aspirational, and that they are not enforceable in the same way. He added that HREOC does consider such rights, as in the Toomelah Report.

• One Committee member referred to Article 27 in the International Covenant on Civil and Political Rights which protects the group culture, religion and languages of "minorities". Such protection would extend to Land Rights where land is the basis of culture and religion and would extend, presumably, on a permanent basis. By contrast, the Racial Discrimination Convention speaks only of "special measures" of limited duration, and that provision in Australia's Racial Discrimination Act provided the sole basis for the High Court's decision in Gerhardy v Brown to uphold the validity of South Australia's Pitjantjatjara Land Rights Act, 1981.

• Australia was also asked why the Race Discrimination Act provided civil remedies, as distinct from criminal sanctions.

• There was discussion of Australia's decision not to implement Article 4 of the Convention which, among other things, requires that incitement to racial discrimination be made an offence and that certain organisations be declared unlawful. The Ambassador indicated that Australia is reconsidering its position on Article 4(a), but is still unlikely to implement it in light of considerations of freedom of expression in the International Convention on Civil and Political Rights. Various members of the Committee were not persuaded.

• Australia was queried on some aspects of the language of the report, notably the use of the word "self-management" as distinct from "self-determination". Mr Winroe explained that the latter term is used within Australia but its use is carefully avoided in the international context.

• Mr Winroe was pressed on Australia's reasons for the decision not to proceed with the Preferred National Land Rights Model, and why it had attracted limited support. He answered in terms of co-operative federalism. He also pointed out the Commonwealth government's willingness to act in the event of failure at state level by mentioning Commonwealth enactment, at the Victorian government's request, of land rights and cultural heritage legislation for Victoria.

As to Western Australia, he blamed the failure to implement the recommendations in the Seaman Report on the conservative upper house majority, and outlined the joint commonwealth/state plan for land acquisition. [Mr Winroe did not mention the mining industry campaign which had led the WA government to introduce land rights legislation quite different from that proposed by the Seaman Report, nor the Prime Minister's decision, in the interest of WA votes, to cut out aspects of the government's five fundamental principles from the Preferred National Land Rights Model.]

• Questions about the Bicentennial observance sought information about the nature of any specific requests or demands on behalf of Aboriginal people. The answer referred only to the government's invitation to Aboriginal Australians to present their claims in the context of the Treaty proposal.

• Questions on teaching of Aboriginal languages, and on teaching in Aboriginal languages, emphasise the significance of such teaching. The questions were not fully addressed at the meeting, and a fuller response may be provided in the Government's Sixth Report.

• Members of the Committee probed one paragraph in the Fifth Report which suggested that problems in relation to Aboriginal people (and migrants) should be seen less in terms of the Racial Discrimination Convention than in terms of "clashes of value systems and cultures". Members of the Committee consiered that this conveyed the ethnocentric suggestion that the problems were problems only for the Aboriginal people, not for the non-Aboriginal, population.

• Other matters of Aboriginal policy that were discussed included the Treaty proposal; moves to establish a new Aboriginal and Torres Strait Islander Commission; an interdepartmental Committee inquiry into the needs of Torres Strait Islanders; commonwealth/state co-operation concerning the Royal Commission on Aboriginal Deaths in Custody; commonwealth/state discussion about the Rudall River National Park; the proportion and quality of land held by Aboriginal people and the extent of Aboriginal control over any income from mining or other use of resources on that land; Australian expenditure on Aboriginal programs; Aboriginal participation in formal education.

The Chairman of CERD noted, in winding up the consideration of Australia's Fifth Report that it had aroused great interest. He added that some of the questions had been unanswered, and he hoped that they would be dealt with in the next report. Australia's Sixth Report to CERD should be submitted shortly, but there is likely to be a similar lapse of time before the Committee is able to discuss it.

22 November 1988.