Indigenous Law Bulletin
by Heinz Schürmann-Zeggel
The Australian Government will continue to face questions on indigenous human rights issues under early warning/urgent action procedures employed by the UN Committee on the Elimination of Racial Discrimination, following a Committee decision on 18 March 1999. The Committee considered detailed submissions by the Australian Government, the Aboriginal and Torres Strait Islander Commission, the Human Rights and Equal Opportunity Commission (HREOC), members of Parliament and non-governmental organizations, before meeting with Government delegates on 12 and 15 March to discuss changes to native title legislation and plans to restructure HREOC.
The Committee welcomed the 'full and thorough reply' made by the Australian Government to its requests for information - made initially on 11 August 1998 (see (1998) 4(15)ILB, p 17) - and Australia's willingness to continue the dialogue on its concerns. While these concerns go far beyond native title, the Committee's decision was based on its view that 'the effects of Australia's racially discriminatory land practices have endured as an acute impairment of the rights of Australia's indigenous communities'.
The committee found that the amended Native Title Act 1993(Cth) 'appears to create legal certainty for governments and third parties at the expense of indigenous title' - violating articles 2 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination ('the Convention') which requires governments to prohibit and eliminate racial discrimination in all its forms and to guarantee equality before the law. It also noted concern about plans to reform HREOC, particularly the abolition of the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner in the context of 'continuing political, economic and social marginalization' of indigenous Australians.
Calling on the Government 'to address these concerns as a matter of utmost urgency', the Committee urged Canberra to reopen discussions with indigenous representatives with a view to finding solutions acceptable to indigenous peoples which comply with Australia's obligations under the Convention. The government rejected the decision as 'insulting' and 'imbalanced' (sic), stating it would take no action in response. However, its January 1999 submission to the Committee had failed to address the key issue - whether changes to native title laws and HREOC reform plans were compatible with Australia's international
obligations. The Government's submission made no reference to the provisions of the Convention, nor to previous Committee statements on HREOC, native title and other relevant issues.
Dr. Heinz Schürmann-Zeggel is a researcher on the Asia-Pacific Regional Program of
Amnesty International's International Secretariat in London and observed the CERD Committee meetings on Australia in March.
[On 29 April, an Opposition bid to have a Senate committee re-examine Amendments to the Native Tile Act 1993 in the light of CERD failed when Tasmanian Independent Brian Harradine refused to support the measure. The following day, the Federal Government confirmed that it had told the UN CERD Committee not to come to Australia to continue its investigation of the Amendments.]