Editors --- "ATSIC Submission to the CERD Committee - Digest" [1999] AUIndigLawRpr 21; (1999) 4(2) Australian Indigenous Law Reporter 134

• Introduction
• Summary and conclusions: an analysis of Australia's performance during the past reporting period
• Suggestions and recommendations of the CERD committee in 1994
• (a) Positive comments
• (b) Principal subjects of concern
• (c) Suggestions and Recommendations
• CERD, indigenous peoples and Australia

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UNITED NATIONS - Committee on the Elimination of Racial Discrimination

Aboriginal And Torres Strait Islander Peoples And Australia's Obligations Under The United Nations Convention On The Elimination Of All Forms Of Racial Discrimination:
Report Submitted By The Aboriginal And Torres Strait Islander Commission To The Un Cerd Committee.

ATSIC, Canberra

February 1999

The expert Committee on the Elimination of Racial Discrimination was established under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) which Australia ratified in 1975. On 11 August 1998, the Committee made unusual use of its urgent action/early warning procedure to request the Australian Government to provide information by 15 January 1999 on amendments to the Native Title Act 1993 (Cth), to changes in policy on indigenous land rights, and to the decision not to fill the position of Aboriginal and Torres Strait Islander Social Justice Commissioner on the Human Rights and Equal Opportunity Commission. [1]

In response, the Australian Government produced a 16 page report and agreed to send a representative to the meeting of the CERD Committee on 12 March this year. [2]

The CERD Committee also received major submissions from the National Indigenous Working Group (NIWG), ATSIC, the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission, and Australians for Native Title and Reconciliation (ANTaR).

The following extracts are from the ATSIC submission to the CERD Committee. [3]

Introduction

Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) on 13 October 1966 and ratified it on 30 September 1975. To date, Australia has submitted nine periodic reports to the CERD Committee in accordance with art 9(1) of the Convention. Australia's combined sixth, seventh and eighth reports were considered by the Committee in August 1991. In considering Australia's ninth periodic report in August 1994, the Committee recommended that Australia should 'pursue an energetic policy of recognising Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past.' At the same time the Committee expressed its appreciation for the 'opportunity to engage in a frank, serious and extremely constructive dialogue with the delegation led by the responsible Minister. He was accompanied by the [Aboriginal and Torres Strait Islander] Social Justice Commissioner, himself from Australia's indigenous population and the holder of an independent post.' [4] Australia's 10th periodic report was due to be submitted on 30 October 1994. An 11th report was due in 1996. At the time of writing (10 January 1999) both reports are overdue.

Developments in Australia since the examination by the CERD Committee of Australia's ninth periodic report have seen a serious deterioration in relations between the Federal Government and indigenous organisations, communities and leaders. The seriousness of the crisis is illustrated in the adoption in August 1998 by the CERD Committee of an Early Warning/Urgent Action decision. The Committee asked Australia to provide information to it on 'the changes recently projected to or introduced to the 1993 Native Title Act, on any changes of policy ... as to Aboriginal land rights, and of the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner.' The Committee wished to examine the compatibility of such changes with Australia's obligations under CERD.

The present report was commissioned by the Aboriginal and Torres Strait Islander Commission (ATSIC), a democratically elected body. ATSIC is the national policy-making and service-delivery body for Aboriginal and Torres Strait Islander people. It was established under an Act of the Australian Parliament to give effect to the principles of respect, recognition of rights and participation in decision making. ATSIC has three major functions:

(1) to formulate and deliver programs to Aboriginal and Torres Strait Islander peoples;

(2) to advocate for Aboriginal and Torres Strait Islander peoples; and

(3) to provide advice to the Minister on matters relating to Aboriginal and Torres Strait Islander affairs.

Changes in Federal Government policy since the election of the current Coalition Government in March 1996 have severely eroded ATSIC's capacity to fully fulfil these functions. In particular the Government has continued to cast doubt on the financial accountability of indigenous organisations, has shifted the focus from recognition of indigenous rights, undermined the principle of elected indigenous people determining their own priorities, and consistently failed to consult with the ATSIC Board and indigenous Australians.

The report is intended to be submitted to the CERD Committee in conjunction with the Committee's examination of Australia's outstanding 10th and 11th periodic reports. It also provides information relating to the CERD Committee's Early Warning/Urgent Action Decision 1 (53). It focuses on the major issues for indigenous peoples in Australia which arise under CERD. It is also hoped that the discussion of the jurisprudence of UN human rights treaty bodies and of the concerns raised, and suggestions and recommendations made by the CERD Committee in relation to Australia's 1994 periodic report will be of assistance to other indigenous organisations and NGOs proposing to submit material to the Committee. The Report is divided into four parts.

Part One provides a synthesis of the relevant jurisprudence of UN human rights treaty bodies. These include General Recommendations of the CERD Committee, General Comments of the Human Rights Committee and views of the Human Rights Committee adopted pursuant to the First Optional Protocol to the International Covenant on Civil and Political Rights. Part Two summarises the CERD Committee's 1993 Revised Guidelines for Reporting under the Convention, especially in relation to CERD's substantive provisions (arts 2-7). Part Three reviews concerns raised, and suggestions and recommendations made by the CERD Committee in relation to Australia's previous periodic report.

Part Four provides an overview of major developments during the past reporting period affecting indigenous rights in Australia, including:

4.1 Native title (in particular the Native Title Amendment Act 1998 (Cth))

4.2 Land rights (in particular the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976)

4.3 Heritage protection (in particular the Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth))

4.4 Recognition of customary law

4.5 Criminal justice issues (including implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody)

4.6 Juvenile justice issues

4.7 Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families

4.8 Economic and social indicators

4.9 Major policy developments in indigenous affairs policy, including:

4.9.1 discontinuance of the 'social justice package' process

4.9.2 abolition of the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner

4.9.3 abandonment of self-determination as policy

4.9.4 threats to ATSIC

4.9.5 process of reconciliation

4.10 Changes to the Human Rights and Equal Opportunity Commission

4.11 Incitement to racial hatred

4.12 Racial discrimination, the Australian Constitution and the Hindmarsh Bridge Affair.

This report was prepared by the Indigenous Law Centre (ILC) at the University of NSW in consultation with ATSIC. [5]

Summary and conclusions: an analysis of Australia's performance during the past reporting period

Suggestions and recommendations of the CERD committee in 1994

In the view of the Aboriginal and Torres Strait Islander Commission Australia has failed to address many of the concerns expressed, and suggestions and recommendations made by the CERD Committee upon its examination of Australia's ninth periodic report in 1994. In relation to many of the matters commented upon positively by the Committee on that occasion, there has been a serious lack of progress and, in some instances, a reversal of policy.

(a) Positive comments

In 1994 the CERD Committee commented positively on, inter alia, the broad powers of the Human Rights and Equal Opportunity Commission (HREOC), the recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), the establishment of the Office of Aboriginal and Torres Strait Islander Social Justice Commissioner, the enactment of the Native Title Act 1993 (Cth) and the readiness of the Federal Government to show leadership in securing better implementation of the Convention by the States and Territories.

During the period since 1994:

• HREOC's hearings functions have been disrupted and a legislative proposal has been introduced which would allow interference by the Attorney General in Federal Court decisions concerning the grant of leave to HREOC Deputy-Presidents to exercise an amicus curiae function (see Part 4.10 below).
• There has been no appointment to the Office of Aboriginal and Torres Strait Islander Social Justice Commissioner since January 1998 and there is a legislative proposal to abolish a distinct portfolio in this area (see Part 4.9.2 below).
• Despite claims by Federal, State and Territory Governments, key recommendations of the RCIADIC have not been implemented and/or have been undermined by legislative initiatives by State and Territory Governments, and RCIADIC monitoring mechanisms have been largely ineffective (see Part 4.5 below).
• The Native Title Amendment Act 1998 (Cth) (NTAA) substantially alters the original provisions of the Native Title Act 1993 (NTA), repudiates the accord reached with indigenous representatives prior to the enactment of the NTA and effects a diminution of native title rights (see Part 4.1 below).
• Instead of showing leadership, the Federal Government has consistently deferred to State and Territory Governments and passed significant areas of responsibility for indigenous affairs to the States and Territories. Examples include the provision in the NTAA to allow States and Territories to establish regimes for the grant of interests to mining companies and other developers on terms less favourable to native title holders than under the NTA; the proposed withdrawal of the Commonwealth from the area of heritage protection upon the accreditation of State and Territory regimes in accordance with inadequate minimal requirements; and the Attorney General's statement in March 1996 that the States and Territories are responsible for carrying the issue of recognition of indigenous customary law (see Parts 4.1.10, 4.3 and 4.4.5 below).

(b) Principal subjects of concern

In 1994 the CERD Committee identified as principal subjects of concern the fact that programs and strategies designed at the Federal level were jeopardised by lack of cooperation on the part of States and Territories; the rate of deaths in custody; problems of proof of native title; the denial of the benefits of the NTA to some Aborigines; continuing disadvantage in areas such as education, employment, housing and health services; and the extent of social problems such as alcoholism, drug abuse and incarceration affecting Aborigines.

In the period since 1994:

• There has been ever-increasing deference on the part of the Federal Government to State and Territory Governments.
• Whilst Aboriginal deaths in police custody have declined, there has been a commensurate increase in the number of Aboriginal deaths in prison. Overall the responses of governments to the recommendations of the RCIADIC have had little effect on the total number of Aboriginal deaths in custody (see part 4.5 below).
• Issues surrounding the proof of native title and the denial of its benefits to certain Aboriginal people have not been ameliorated by the NTAA. The NTAA operates to impair and extinguish native title and to reduce the statutory protections of native title. Controversial aspects of the amended legislation include the 'confirmation' of past extinguishment; the validation of 'intermediate period acts'; the expansion of the rights of pastoralists; and the erosion of the right to negotiate (see Part 4.1.10 below).
• Recent statistical information reveals continuing systematic discrimination against indigenous Australians in the areas of health, housing, education, income and employment (see Part 4.8 below).
• The over-representation of indigenous people in the criminal justice system continues to be linked to their social, economic and physical health and wellbeing. Since 1994 both the total number of Aboriginal prisoners and the level of Aboriginal over-representation have substantially increased (see Part 4.5.2 below).
• Legislation in Western Australia and the Northern Territory has imposed an obligation upon the courts to impose mandatory imprisonment for certain offences. The increasing over-representation of Aboriginal young people in the criminal justice system is particularly devastating (see Part 4.6 below).

(c) Suggestions and Recommendations

Relevant suggestions and recommendations of the CERD Committee in 1994 related to the pursuit of an 'energetic policy' of recognising rights and furnishing compensation; the full implementation of the recommendations of the RCIADIC; and a strengthening of measures to remedy discrimination suffered by Aborigines.

Since 1994:

• Legislation has been introduced to abolish the distinct portfolio of Aboriginal and Torres Strait Islander Social Justice Commissioner (see Part 4.9.2 below).
• The 'social justice package' process has been abandoned (see Part 4.9.1 below).
• 'Self-determination' has been jettisoned as policy in indigenous affairs (see Part 4.9.3 below).
• The capacity of ATSIC to fulfil its statutorily mandated functions has been consistently undermined (see Part 4.9.4 below).
• The process of reconciliation has entered difficult waters (see Part 4.9.5 below).
• Key recommendations of the RCIADIC have not been implemented (see Part 4.5.3 below).
• The approach recommended by the Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) has been largely ignored (see Part 4.3.4 below).
• The central recommendations of HREOC's 'Stolen Generations Inquiry' (apology, compensation, national standards for indigenous children) have been rejected (see Part 4.7.4 below).
• The Australian Law Reform Commission's 1986 recommendations on Recognition of Aboriginal Customary Laws have been disregarded (see Part 4.4.5 below).
• Australia's reservation to art 4(a) of CERD has not been withdrawn, and incitement to racial hatred has not been made a criminal offence.
• The High Court has failed to clarify whether the race power in s 51(xxvi) of the Australian Constitution can be relied upon to enact racially discriminatory legislation (see Part 4.12 below).

CERD, indigenous peoples and Australia

The UN human rights treaty bodies have generated a considerable body of jurisprudence relevant to indigenous peoples. These include General Recommendations of the CERD Committee, General Comments of the Human Rights Committee and views of the Human Rights Committee adopted pursuant to the First Optional Protocol to the ICCPR.

Of particular relevance is the jurisprudence of the CERD Committee and the Human Rights Committee on the principles of equality and non-discrimination. This body of jurisprudence establishes that not all differences in treatment are discriminatory; that is, equality does not mean identical treatment. Distinctions are not discriminatory where they pursue a legitimate aim. Special measures - or affirmative action - are sometimes required to redress inequality and to secure for members of disadvantaged groups full and equal enjoyment of their human rights. And particular regimes of minority rights are consistent with, and sometimes required to achieve factual or substantive equality. Thus, the protection of indigenous peoples' distinct rights is also implicit in the concept of equality.

It is clear from the statistical information which attests to the unequal enjoyment by Aboriginal and Torres Strait Islander peoples of their civil, cultural, economic, political and social rights that Australian governments continue to fail to adopt appropriate special measures to address systematic discrimination against the indigenous population. Policies of Australian governments are discriminatory in that they fail to take into account the cultural, social, economic and demographic characteristics of the indigenous population; fail to acknowledge the relative need of the indigenous population in the allocation of resources; design and deliver services on the basis of the characteristics and needs of the non-indigenous population; and fail to acknowledge impediments to the exercise of human rights by indigenous Australians.

The Federal Government's inaction or inadequate action in many areas is a matter of grave concern. In the 1967 Referendum 90 per cent of voters gave the Commonwealth the power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. From that time successive Federal governments have accepted their responsibility of leadership in the area of indigenous affairs. The approach of the current Federal Government has been to remove policy responsibility from indigenous peoples, abdicate its own responsibility and transfer responsibility to State and Territory Governments. The crisis in the area of juvenile justice and the Federal Government's failure to respond to draconian mandatory sentencing legislation in Western Australia and the Northern Territory is of particular concern. In addition, a number of critical developments in Australia during the past reporting period raise serious doubts as to the Federal Government's commitment to recognising the distinct rights of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. These include:

• the proposed abolition of the Office of Aboriginal and Torres Strait Islander Social Justice Commissioner (see Part 4.9.2);
• the abandonment of the 'social justice package' process (intended to address outstanding issues raised by the final putting to rest of the terra nullius doctrine in Mabo v The State of Queensland [No 2]) (see Part 4.9.1);
• the rejection of self-determination as policy in the area of indigenous affairs (see Part 4.9.3);
• a reduction in the capacity of ATSIC to plan and control its budget, and to act as principal adviser to the Government on Aboriginal and Torres Strait Islander affairs (see Part 4.9.4);
• the Government's failure to demonstrate any commitment to the reconciliation process and movement (see Part 4.9.5);
• the Government's half-hearted response and deference to the States in relation to customary law (Part 4.4.5), heritage protection (Part 4.3.5-4.3.8) and the entitlements of the 'stolen generations' (Part 4.7.4);
• recent amendments to the Native Title Act 1993 (see Part 4.1.9-4.1.12); and
• the prospect of a dismantling of the Land Council structures in the Northern Territory under the Northern Territory Land Rights Act 1976 (see Part 4.2).

Many of these developments are inconsistent not only with the general equality jurisprudence of CERD and the Human Rights Committee, but with specific jurisprudence concerning the rights of ethnic minorities and the rights of indigenous peoples. The Human Rights Committee's General Comment on art 27 of the ICCPR and its views pursuant to the First Optional Protocol have shown that art 27 can require positive legal measures of protection to ensure the enjoyment of indigenous peoples' rights. Ominayak's case suggests that the expropriation of indigenous territories for the purpose of granting forestry leases and exploration licences is contrary to art 27. Lansmann's case supports the proposition that developments which adversely affect indigenous peoples' cultural rights - including places of spiritual significance and economic activities - will also be contrary to art 27. Hopu and Bessert is authority for the view that interference with indigenous burial grounds constitutes a violation of the right to privacy (art 17) and to family (art 23). Other General Comments of the Human Rights Committee offer guidance as to what constitutes 'arbitrary arrest and detention', minimum requirements in respect of the administration of justice, the notion of 'cruel, inhuman or degrading treatment or punishment', the rights of persons deprived of their liberty, the rights of children and young people, the protection of the family, and the concept of freedom of religion.

Most significantly, the CERD Committee's General Recommendation on Indigenous Peoples (General Recommendation XXIII) specifies the implications of the prohibition of racial discrimination in relation to indigenous peoples. In this General Recommendation the CERD Committee calls on States parties to protect the rights of indigenous peoples to 'own, develop, control and use their communal lands'. The recent passage in Australia of legislation amending the Native Title Act 1993 raises questions as to the extent to which Australia is in conformity with the standards articulated by the CERD Committee. The same applies to the prospect of legislation implementing the Reeves Review of the Land Rights (Northern Territory) Act 1976. The General Recommendation also calls on States parties to CERD to 'recognise and respect indigenous culture, history and ways of life' and to 'ensure that indigenous communities can exercise their rights to practise and revitalise their cultural traditions and customs, to preserve and practise their languages'. One can ask how luke-warm to non-existent responses to the ALRC's 1986 Report on Recognition of Aboriginal Customary Laws, the Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and the Report of HREOC's 'Stolen Generations Inquiry' conform with this aspect of the CERD Committee's General Recommendation. Similarly, it is clear that numerous significant changes in indigenous affairs policy in Australia since 1994 have failed to comply with the General Recommendation's requirement that no decisions affecting the rights of indigenous peoples 'are made without their informed consent.' And finally, the General Recommendation calls on States parties to provide indigenous peoples with living conditions that 'can sustain their appropriate economic and social development'. In this respect as well Australia has a great deal of distance to travel before it can legitimately claim to be in full conformity with the obligations imposed under the International Convention on the Elimination of All Forms of Racial Discrimination.

It cannot be said that Australia has 'pursue[d] an energetic policy of recognising Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past', as recommended by the CERD Committee in August 1994. Rather, developments since the examination by the CERD Committee of Australia's ninth periodic report have seen a deterioration in relations between the Federal Government and indigenous organisations, communities and leaders. The seriousness of the crisis can be seen in the adoption in August 1998 by the CERD Committee of an Early Warning/Urgent Action decision.

It is the view of the Aboriginal and Torres Strait Islander Commission, the peak indigenous body in Australia, that numerous developments during the past reporting period are inconsistent with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. It is to be hoped that the examination by the CERD Committee of Australia's outstanding 10th and 11th periodic reports will provide an occasion for the Australian Government to engage in a frank and constructive dialogue with the Committee and to make a commitment to ensuring that Australian law and practice are brought into conformity with the standards imposed by the CERD Convention.

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Endnotes

[1] CERD/CI Misc 17/Rev. 2. (1998) 3 (4) AILR p 590. Cf (1998) 4 (15) ILB p 17.

[2] see <www.law.gov.au/publications/pubs.htm>.

[3] The report is available on the ATSIC website at <www.atsic.gov.au>.

[4] Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/49/18 (1994) at paras 542-6.

[5] See page 133 of the report.