International Review of Indigenous issues in 2000: Australia - 4. National laws contributing to racism, racist practices and / or race related discrimination

International Review of Indigenous issues in 2000: Australia

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4. National laws contributing
to racism, racist practices and / or race related discrimination

• Native
  title
  
• Indigenous
  Heritage laws
  
• Criminal
  justice system
  
• Mandatory
  sentencing

Native title

i) The recognition of native
title in Australia - Mabo, the Native Title Act 1993 (Cth) and Wik

On 3 June 1992 the
High Court of Australia handed down its decision in Mabo v Queensland
(No.2) (1992) 175 CLR 1. This decision constitutes the first recognition
of indigenous property rights at common law in Australia. The Court rejected
the previously existing view that Australia was terra nullius (or
land belonging to no-one) upon settlement by Europeans in 1788. They held
that the common law of Australia recognised that Aboriginal and Torres
Strait Islander people had pre-existing native title rights to land and/or
waters which survived the acquisition of sovereignty by the British from
1788 and which may continue today in certain circumstances.

Native title rights
and interests are defined according to the traditional laws and customs
of Indigenous people. For native title to be recognised by the Australian
legal system, claimants must be able to demonstrate that they have maintained
their connection with the land, and be able to trace that connection back
prior to colonisation.

The Mabo case further
held that as the Crown had acquired sovereignty over Australia, it had
the power to extinguish native title by lawful executive and legislative
actions, where a clear and plain intention to do so has been indicated.

This power to extinguish
has been limited since 1975 due to the operation of the Commonwealth Racial
Discrimination Act 1975 (the RDA). The effect of this Act is that
State and Territory governments may not affect Indigenous property rights
in ways which differ from their treatment of non-Indigenous property rights,
as to do so would be racially discriminatory and in conflict with the
Act. A failure to comply with this Act can result in constitutional invalidity
of the State or Territory action due to the operation of section 109 of
the federal Constitution, which provides that a State law must not be
in conflict with a federal law. Consequently, the recognition of Indigenous
property rights in Mabo meant that all Crown grants of interests
in land after 1975 were potentially invalid for inconsistency with the
RDA.

To deal with the
implications of the Mabo decision, the Australian federal government
sought to introduce a legislative scheme. After the longest debate in
the history of the Senate, and a processthat involved extensive consultation
and negotiation with Indigenous representatives, the Native Title Act
1993 (Cth) (NTA) passed through the federal Parliament. The Act was
part of a three stage response to the Mabo decision, the other
stages being the establishment of a land fund to purchase land for Indigenous
groups whose native title had been extinguished and a social justice package.
The NTA was seen at the time by Indigenous groups as a compact with the
government.

The purposes of the
NTA were to provide for:

• recognition of
  native title, through the establishment of a negotiation and adjudication
  process for determining whether claimed native title rights would be
  recognised;
  
  
  
• protection of
  native title, by establishing a process which governments must comply
  with for future grants and activities to be valid. This included providing
  native title claimants with a right to negotiate in relation to proposed
  mining activities and compulsory acquisitions of land by government
  for the benefit of third parties, over land subject to native title
  claims; and
  
  
  
• extinguishment
  of native title, through the validation of acts done by governments
  in the period from the commencement of the operation of the Racial Discrimination
  Act to the commencement of the NTA. These were acts which may have been
  invalid for failure to comply with the provisions of the Racial Discrimination
  Act.

In developing the
NTA the government sought to confirm the principles in the Mabo decision,
and not to pre-empt the courts in determining the principles of when native
title can be established, and when it has been extinguished.

In 1996, the High
Court delivered its decision in Wik Peoples v Queensland [51].
The case involved two varieties of a type of land tenure that is unique
to Australia, known as a pastoral lease, and elaborated on the principles
of native title established in the Mabo case.

It had been assumed
by most during the drafting of the NTA that native title was extinguished
by a pastoral lease. But in Wik the High Court held that the two varieties
of pastoral leases at issue did not grant exclusive possession to the
leaseholder, and that accordingly, native title could co-exist over land
subject to a pastoral lease. To the extent that native title was inconsistent
with the pastoral lease, under the principles established in Mabo, the
pastoral leases prevailed over native title to the extent of that inconsistency.


While the Wik decision was consistent with the principles established
in Mabo, it was of enormous practical significance due to two key factors.
First, it greatly increased the proportion of the country which may now
be subject to native title. Second, as most States and Territories had
assumed that native title was extinguished by pastoral leases, they had
failed to comply with the provisions of the NTA and potentially granted
invalid titles.

ii) Proposed amendments
to the NTA

The newly elected
conservative government had flagged amendments to the NTA prior to the
Wik decision, and now sought to revise these proposals in order to deal
with what they considered were the unacceptable implications of the decision.

Throughout 1997 and
1998 the government proposed amendments to the NTA dominated the national
headlines in Australia. The amendments were debated in Parliament in November
and December 1997, when in the longest debate in the Senate's history
the government's bill was substantially amended. This was deemed unacceptable
by the government, which resubmitted an amended version of the bill, which
was considered in April and May of 1998. The bill was again substantially
amended, with the government rejecting the majority of the amendments.
In July 1998, the amendments passed through Parliament. Most of the amendments
came into operation on 30 September 1998. They significantly alter the
original provisions of the NTA.

A significant difference
in the process leading to these amendments was the lack of consultation
by the government with Indigenous representatives. Indigenous involvement
was limited to a few face to face meetings with the Prime Minister and
involvement in the formal Parliamentary Committee process. This consultation
occurred when the principles and policy parameters of the amendments had
already been decided. When the amendments finally passed through the Senate,
the National Indigenous Working Group, a coalition of representatives
from most Indigenous representative bodies, released a statement indicating
their lack of involvement in the process and their lack of consent to
the amendments. A copy of this statement is enclosed at Attachment A.

iii) The amended NTA -
Main provisions

The amendments to
the Native Title Act substantially alter the character of the Act. This
section provides an overview of the main purposes and provisions of the
amended act.

Authorisation
of activities by the States and Territories

A major consequence
of the amendments is that they devolve a large part of the responsibility
for native title issues from the national level to each of the States
and Territories. The amendments authorise the States and Territories to
introduce legislation that meets the minimum standards laid out in the
federal amendments. Any such legislation that is introduced by the States
and Territories will be constitutionally valid, as it will not be in conflict
with the federal legislation. This is despite the discriminatory nature
of some of the provisions. It has not been tested in the Courts, and is
currently unclear whether the Constitution, under s51(26) or the races
power, permits the federal government to discriminate against Indigenous
people in this manner.

The substance of
the state and territory legislation that is now permitted by the federal
amendments is to allow the States and Territories to enact validation
and confirmation provisions, and to introduce provisions that alter the
right to negotiate for mining acts and compulsory acquisitions (these
issues are discussed further below). This has the effect of fragmenting
the approach to native title across the country, and makes it more difficult
for concerned people or organisations, both within Australia and overseas,
to evaluate the acceptability of the provisions.

Racial Discrimination
Act

The amendments include
a section [52] that states that native title regimes
(including those of the states and territories) must be conducted in a
non-discriminatory manner, and that where there is ambiguity in the meaning
of any terms in the NTA, the Racial Discrimination Act must be resorted
to in order to clarify the meaning.

This does not allow
for any of the federal amendments to be challenged on the basis that they
conflict with the Racial Discrimination Act. As explained above those
provisions of the amendments which are racially discriminatory override
the protection given by the Racial Discrimination Act. As noted, it is
unclear whether the government has the constitutional authority to discriminate
in this manner. Such discrimination is of international concern.

Validation

When the High Court
rejected the doctrine of terra nullius and recognised the pre-existing
'native title' of Indigenous people to land, it created an anomaly within
the law of property. After the implementation of the Racial Discrimination
Act (Cth) (RDA) in 1975, discriminatory acts that dispossessed Indigenous
people (such as the grant of an inconsistent interest in land) were unlawful,
and consequently, invalid. The original NTA validated these otherwise
unlawful acts. The validation provisions were a response to the discontinuity
that is created when injustices, for the first time, are legally recognised
as such.

The 1998 amendments
to the NTA created new 'validation' provisions that validated racially
discriminatory acts by states and territories in the period after the
recognition of native title. These acts are 'intermediate period acts';
acts that took place after the proclamation of the NTA on 1 January 1994,
and before the handing down of the High Court Wik [53]
decision on 23 December 1996. [54] An intermediate period
act is an act that is invalid because the procedural or substantive rights
of native title holders were not taken into account. An example is the
grant of a license or mining tenement on native title land without extending
to native title parties the procedural rights required by the NTA (such
as proper notification). The amendments provide that such grants are valid
and are deemed to have always been valid. [55]

The background to
these amendments is that, during the 'intermediate period', governments
acted on an assumption, proven false in the Wik decision, that the grant
of a pastoral leasehold extinguished native title. Consequently, in relation
to native title holders and claimants co-existing on pastoral leasehold
land, state governments ignored the provisions of the original NTA which
required that, for governments intending to deal with native title land,
native title holders have the same procedural rights as ordinary title
holders. [56] The original NTA also provided that, in
relation to the creation, extension and variation of a right to mine,
native title holders and claimants had a right to negotiate with miners
and governments over the project. In the intermediate period state governments,
when issuing mining tenements over native title land that co-existed with
pastoral leaseholds, disregarded the rights of native title holders as
stipulated in the NTA.

As a result of the
validation of intermediate period acts, native title is either extinguished,
(where the act is the construction of a public work or the grant of certain
freehold and leasehold estates) [57]; extinguished to
the extent of any inconsistency, (where the act is the grant of 'other'
leases) [58] ; or not extinguished but rendered unenforceable
until the intermediate period act ceases to be in operation, (where the
act is the grant of a mining lease or any other act). [59]

Native title holders
are entitled to compensation as a result of the impact of the validation
provisions on their title. However, access to compensation for loss or
impairment of title is dependent on identifying the parcels of land on
which grants have been made, state governments notifying actual or potential
native title holders that their interests may be affected by acts which
have been validated, and the determination by a court that native title
exists on the land.

Confirmation

The original NTA
left the principles of extinguishment of native title to the Courts to
develop. The amendments to the NTA however, pre-empt the development of
the common law by authorising the States and Territories to confirm by
legislation that a specified range of titles and grants (referred to as
'previous exclusive possession acts') extinguish native title, and do
so permanently.

The amendments include
a schedule, 50 pages in length, which lists a series of interests in each
State or Territory which are deemed to be titles which provide rights
of exclusive possession and consequently which extinguish native title
permanently.

There are doubts
surrounding the true extent of some of the tenures which are confirmed
as extinguishing native title. The amendments relating to confirmation
may extinguish native title to an extent greater than the actual common
law position. This is implicitly acknowledged in the Act itself, as the
amendments provide that compensation is only payable for extinguishment
which results from the operation of the NTA, and not payable if extinguishment
would have occurred outside of the Act.

The amendments also
provide that titles that are non-exclusive in nature (referred to as previous
non-exclusive possession acts) permanently extinguish native title to
the extent of the inconsistency. This is despite the uncertainty as to
the common law position on the effect on native title of the grant of
non-exclusive titles. One view of the common law position is that impairment
of native title by the grant of such titles may only be temporary, with
native title capable of reviving at a later date.

Upgrading
pastoral leases

The government considered
that the Wik decision created some uncertainty as to the validity of certain
activities undertaken by pastoralists. While indigenous representatives
were willing to support the legislative confirmation of existing pastoral
rights, the government went further than this in the amendments and introduced
provisions which confirmed that pastoralists could validly conduct activities
in addition to those authorised by their lease. These additional activities
are known as primary production activities.

Primary production
is defined to include agriculture, forestry, aquaculture and farmstay
tourism. These are far more intensive activities than pastoral activities
such as grazing and have a far greater impact on the enjoyment of native
title. Pastoralists are able to upgrade their activities to primary production
levels without any requirement for consultation or negotiation with native
title holders, and without compensation being payable.

Under the principles
espoused in the Wik decision, pastoralists' rights will prevail over native
title to the extent of any inconsistency. Thus, the dramatic expansion
of pastoralists' rights means that native title is suppressed to a correspondingly
greater extent.

Where an authorised
primary production activity is conducted, the amended NTA provides that
the 'non-extinguishment principle' applies. This principle means that
native title is suspended while these activities are current. While better
than clear extinguishment, when considered alongside the requirement for
native title claimants to demonstrate that they have maintained a connection
with traditional country in order to claim their title, the potential
for permanent erosion of native title rights becomes clear.

Registration test

Registration of a
native title claim provides a native title claimant with the right to
negotiate and other procedural rights under the NTA. Prior to the amendments
there was effectively no registration test, with claims being registered
(and accordingly being able to access these rights) so long as their claim
was not frivolous or vexatious.

The amendments introduced
a registration test which must be met prior to being able to access these
rights. The new registration test must now be applied retrospectively
to all claims which have been lodged to date. This test requires, amongst
other things, that claimants establish:

• at least one
  of the claimants currently has a physical (as opposed to spiritual)
  connection to the claimed land or waters. There is an exception to this
  requirement, which allows a claimant's parent to have had a physical
  connection, in circumstances in which claimants have been forcibly removed
  from the land and accordingly cannot demonstrate a continuing physical
  connection.; an
• prima facie they
  can establish each (rather than some) of the claimed native title rights.
  The right to negotiate (discussed below) will be limited to those rights
  that have passed the prima facie test and have been registered.

While there was agreement
between the government and Indigenous groups that a higher registration
test must be introduced, this test is too onerous and may operate to deny
worthy native title claims. Often, claims must be registered within a
set notice period. It will be difficult for some claimants to provide
the detail required within this period (particularly where a court order
is required). Similarly, the requirement of a physical connection to the
land is stricter than the common law test laid down in Mabo, which requires
a physical or traditional connection.

Right to
negotiate

The original NTA
provided native title claimants with a right to negotiate over mining
activities and certain compulsory acquisitions which were proposed on
land over which they had registered native title claims. These provisions
were central in protecting native title rights. They can be seen as a
loose approximation of traditional Indigenous value systems, which often
require negotiation and consent to access traditional lands. The right
to negotiate provisions were also seen by Indigenous representatives at
the time as a trade-off for the extensive extinguishment of native title
provided for in the original act.

The amendments significantly
alter the right to negotiate provisions by providing for a number of exceptions
and alternatives to the right to negotiate provisions.

Exceptions to
the right to negotiate

The amendments provide
that native title claimants will no longer be entitled to a right to negotiate
in relation to the creation of a mining right in the following circumstances:

• a mining right
  for the sole purpose of building an infrastructure facility. An infrastructure
  facility is broadly defined to include roads, railways, bridges, transport
  facilities, jetties and ports, airports, electricity facilities, oil,
  gas or coal facilities, dams, pipelines, and other such facilities;
• a creation of
  a mining right at the exploration stage. Formerly, a right to negotiate
  would apply at the exploration and the production stages;
• the renewal, re-grant,
  re-making or extension of a right to mine.

The right to negotiate
also will no longer apply in relation to the compulsory acquisition of
land for an infrastructure facility, for either a private or public purpose.
These exemptions have the potential to impact significantly on native
title rights and interests, particularly in relation to areas of cultural
significance and sacred sites, and maintained indigenous access to the
land.

Alternatives to
the right to negotiate

In addition to these
exemptions to the right to negotiate, the amendments provide that the
States and Territories may establish two types of alternative provisions
to the right to negotiate. The first is a state-based right to negotiate,
which replaces the scheme in the federal legislation. This will result
in a further devolution of native title issues from the national arena
should any of the States take up this option.

The second set of
provisions allow the States or Territories to establish an alternative
procedure (under s43A of the NTA) which replaces native title claimants'
right to negotiate with a reduced set of rights. This alternative provision
can only apply in what is called an 'alternative provision area', which
covers specified areas of leasehold land (including pastoral leases),
reservations, freehold land and areas within towns and cities. Lands classifiable
as 'alternative provision areas' cover large proportions of the land in
some states.

Where this provision
applies, native title claimants are provided with a right to object about
the doing of the act and a right to be consulted about ways of minimising
the impact of the doing of the act. Unlike the right to negotiate, the
right to be consulted does not require the government to negotiate in
good faith, nor does the validity of the grant being sought depend on
proper consultation having taken place.

Previously, the NTA
did not make distinctions between the rights afforded to claimants on
the basis of the history of previous tenures on the land at issue. The
distinctions drawn by the amendments treat native title rights on land
where there may be co-existence (such as on pastoral leases) differently
to native title rights on other land. Accordingly, they provide reduced
and inadequate protection to native title rights covered by the alternative
provisions, and do not respect the essence of the principle of co-existence
in the High Court's decision in Wik.

(iv) International Commentary
on the amended NTA

The CERD Committee's
Decision of 18 March 1999

In August 1998 the
CERD Committee became concerned that the amendments to the NTA were inconsistent
with Australia's obligations under CERD. Members of the CERD Committee
voiced the concern that the situation in Australia 'was clearly deteriorating'
since Australia's previous appearance before the Committee in 1994. [60]
The CERD Committee decided to act under its early warning and urgent action
procedure and requested that Australia provide it with information relating
to the amendments to the NTA any changes of policy in relation to Aboriginal
land rights, and the functions of the Aboriginal and Torres Strait Islander
Social Justice Commissioner. [61]

On 18 March 1999,
the Committee found that significant amendments to the NTA were contrary
to Australia's obligations under CERD. The Committee further found that
the amended NTA, taken as a whole, was incompatible with Australia's international
obligations. An important consideration in making this finding was that
the amendments were enacted without obtaining the informed consent of
Indigenous people. [62]

In summary, the 18
March 1999 decision expressed concern that:

• amendments to
  the NTA favour non-Indigenous interests at the expense of Indigenous
  title, and consequently, do not strike an appropriate balance between
  Indigenous and non-Indigenous rights;
  
  
  
• the validation,
  confirmation, and primary production upgrade provisions, and restrictions
  and exceptions to the right to negotiate, discriminate against native
  titleholders. In doing so, these provisions raise concerns that Australia
  is not acting in compliance with its obligations under Articles 2 and
  5 of the CER
  
  
  
• the lack of 'effective
  participation' of Indigenous people in the formulation of the amendments
  raised concerns that Australia had breached its obligations under Article
  5(c) of the Convention and had not acted in accordance with the Committee's
  General Recommendation XXIII on Indigenous People.

The Committee urged
the Australian Government to immediately suspend implementation of the
amendments to the NTA and re-open discussions with Indigenous representatives
with a view to finding solutions acceptable to the Indigenous peoples
and which would comply with Australia's obligations under the Convention.

The Committee decided
to keep Australia under the early warning procedure to be reviewed at
the fifty-fifth session of the Committee in August 1999 'in light of the
urgency and fundamental importance of these matters.' [63]

The CERD Committee's
Concluding observations of March 2000 on Australia

The CERD Committee
reconsidered the NTA amendments when Australia's periodic report was considered
in Geneva on 21 and 22 March 2000. [64]

The CERD Committee
was dissatisfied with the government's response to the CERD Committee's
concerns as expressed in Decision 2(54) and to the government's failure
to respond to its recommendation that the government renew negotiations
with Indigenous people in order to rectify the situation. The CERD Committee's
restated its two major concerns; first, that the amended NTA fails to
meet the standard of equality required under the Convention, and second,
that the requirement under article 5(c) of the Convention, emphasised
in Decision 2(54), that Indigenous people give their informed consent
to decisions that affect them, was disputed and ignored by the Australian
government in relation to the enactment of the amended NTA.

The CERD Committee
stated :[65]

9. Concern is
expressed at the unsatisfactory response to decisions 2 (54) (March
1999) and 2 (55) (August 1999) of the Committee and at the continuing
risk of further impairment of the rights of Australia's indigenous
communities. The Committee reaffirms all aspects of its decisions
2 (54) and 2 (55) and reiterates its recommendation that the State
party should ensure effective participation by indigenous communities
in decisions affecting their land rights, as required under article
5 (c) of the Convention and General Recommendation XXIII of the Committee,
which stresses the importance of securing the "informed consent"
of indigenous peoples. The Committee recommends to the State party
to provide full information on this issue in the next periodic report.

The CERD Committee
reiterated the finding that the amended NTA is discriminatory:

8. The Committee
notes that, after its renewed examination in August 1999 of the provisions
of the NTA as amended in 1998, the devolution of power to legislate
on the "future acts" regime has resulted in the drafting
of state and territory legislation to establish detailed "future
acts" regimes which contain provisions further reducing the protection
of the rights of native title claimants that is available under Commonwealth
legislation. Noting that the Commonwealth Senate on 31 August 1999
rejected one such regime, the Committee recommends that similarly
close scrutiny continue to be given to any other proposed state and
territory legislation to ensure that protection of the rights of indigenous
peoples will not be reduced further.

The Concluding
Observations by the Human Rights Committee in July 2000 on Native Title



The Human Rights Committee considered that the amendments to the NTA were
a breach of ICCPR and stated in its Concluding Observations:

The State party
should take the necessary steps in order to secure for the indigenous
inhabitants a stronger role in decision-making over their traditional
lands and natural resources (art. 1, para. 2).

The Committee
is concerned, despite positive developments towards recognizing the
land rights of the Aboriginals and Torres Strait Islanders through
judicial decisions (Mabo, 1992; Wik, 1996) and enactment of the Native
Title Act of 1993, as well as actual demarcation of considerable areas
of land, that in many areas native title rights and interests remain
unresolved and that the Native Title Amendments of 1998 in some respects
limit the rights of indigenous persons and communities, in particular
in the field of effective participation in all matters affecting land
ownership and use, and affects their interests in native title lands,
particularly pastoral lands.

The Concluding
Observations by the Committee on the Economic, Social and Cultural Rights
in September 2000 on Native Title

The Economic Social
and Cultural Rights Committee, in considering Australia's performance
under the International Convention on Economic, Social and Cultural Rights
(ICESCR) in September 2000 was concerned at the impact of the amendments
to the NTA and stated in its Concluding Observations:

16. The Committee
notes with regret that the amendments to the 1993 Native Title Act
have affected the reconciliation process between the State party and
the indigenous populations, who view these amendments as regressive.

Indigenous Heritage laws

The religious and
cultural practices of Indigenous people are inextricably linked to land
and water. However, the various land rights laws, including native title
laws and state and territory land rights acts, do not adequately protect
Indigenous heritage. Consequently, State and Commonwealth heritage legislation
that address the preservation of Indigenous religious, cultural and ancestral
areas and objects remain the most significant form of heritage protection
available to Indigenous people.

There are major problems
with the heritage protection legislation in Australia. There is little
co-ordination between Commonwealth, State and Territory legislative regimes.
There is no uniformity between different state and territory laws and
legislation in a number of states is incompatible and inadequate. [66]
The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 (The Commonwealth Heritage Act) was enacted as 'an interim measure'
[67] originally intended to provide only 'last resort'
protection where state or territory legislation failed. However, because
state and territory protection is inadequate, the Commonwealth Heritage
Act is often required to provide primary site protection. Problems with
the Commonwealth Heritage Act include:

• Extensive delay
  at all stages of the protection process
  
• Confidential information
  is not protected from disclosure
  
• The Act fails
  to cover all aspects of Indigenous heritage important to Aboriginal
  people such as intellectual property and the regulation of the use and
  sale of significant Indigenous objects
  
• The Act does not
  sufficiently include Indigenous people in decisions regarding heritage
  protection
  
• The Commonwealth
  Minister considering a heritage application is not obliged to act, even
  if an area is of significance to Aboriginal people

In recognition of
the inadequacies of the Commonwealth Heritage Act the Aboriginal and
Torres Strait Islander Heritage Protection Bill 1998 was introduced
in the Commonwealth parliament in 1998 and has recently been the subject
of a series of amendments. As it now stands the Bill substantially weakens
even the inadequate protection currently available from the Commonwealth
for areas and objects of significance to Indigenous people. State and
territory legislation remain the primary source of heritage legislation,
subject to accreditation by the Commonwealth. Yet the standard for accreditation
is inadequate and Indigenous people must exhaust all remedies at this
level before accessing the Commonwealth scheme. The Commonwealth will
intervene only in the case of matters that affect the 'national interest'.

International Commentary on
Indigenous Heritage Protection

Protection of Indigenous
heritage is a fundamental component of the instruments and obligations
relating to the international human rights of Indigenous people. The Australian
legislation may be evaluated by reference to the principles outlined by
Chairperson-Rapporteur Erica-Irene Daes in the Report of the seminar
on the draft principles and guidelines for the protection of the heritage
if Indigenous people :[68]

• The effective
  protection of the heritage of the indigenous people of the world benefits
  all humanity. Its diversity is essential to the adaptability, sustainability
  and creativity of the human species as a whole. [69]
  
• To be effective,
  the protection of indigenous peoples' heritage should be based broadly
  on the principle of self-determination, which includes the right of
  indigenous peoples to maintain and develop their own cultures and knowledge
  systems, and forms of social organisation. [70]
  
• Indigenous peoples
  should be the source, the guardians and the interpreters of their heritage,
  whether created in the past, or developed by them in the future. [71]
  
• Indigenous peoples
  ownership and custody of their heritage should be collective, permanent
  and inalienable, or as prescribed by the customs, rules and practices
  of each people.[72]
  
• The discovery,
  use and teaching of indigenous peoples' heritage are inextricably connected
  with the traditional lands and territories of each people. Control over
  traditional territories and resources is essential to the continued
  transmission of indigenous peoples' heritage to future generations,
  and its full protection. [73]

The Report also makes
important recommendations concerning the protection of Indigenous heritage
through national legislation:

23. National laws
for the protection of indigenous peoples' heritage should:

(a) be adopted
following consultations with the peoples concerned, in particular
the traditional owners and teachers of religious, sacred and spiritual
knowledge, and wherever possible should have the informed consent
of the peoples concerned;



(b) guarantee that indigenous peoples can obtain prompt, effective
and affordable judicial or administrative action in their own languages
to prevent, punish and obtain full restitution and just compensation
for the acquisition, documentation or use of their heritage without
proper authorisation of the traditional owners;



(c) Deny to any person or corporation the right to obtain patent,
copyright or other legal protection for any element of an indigenous
peoples' heritage without adequate documentation of the free and informed
consent of the traditional owners to an arrangement for the sharing
of ownership, control, use and benefits;



(d) Ensure labelling, correct attribution and legal protection of
indigenous peoples' artistic, literary and cultural works whenever
they are offered for public display or sale.

24. In the event
of a dispute over the custody or use of any element of an indigenous
peoples' heritage, judicial and administrative bodies should be guided
by the advice of indigenous elders who are recognised by the indigenous
communities or peoples concerned as having specific knowledge of traditional
laws.

25. Government
should take immediate steps, in cooperation with the indigenous peoples
concerned, to identify sacred and ceremonial sites, including burial
sites, healing places, and traditional places of teaching, and to protect
such places from unauthorised entry or use and from deterioration.

The Daes Report on
the protection of Indigenous heritage contains the fundamental principles
to guide governments in their formulation of heritage legislation:

• informed consent
  by Indigenous people to the legislation
  
• maintenance of
  Indigenous control over their culture in accordance with the right of
  self-determination and
  
• restitution and
  compensation for the appropriation of their culture.

Australian governments'
legislative protection of Indigenous heritage should implement the above
guidelines, not relegate protection to inadequate targeted legislation
that conceives of Aboriginal heritage as a relic of a dying civilisation.

The Human Rights Committee considered Australia's compliance with international
obligations relating to heritage protection in its consideration of Australia's
periodic report under the ICCPR in July 2000. The Committee commented
in particular upon the decision by the Minister for the Environment and
Heritage, Senator Hill, to defer a protection order over Boobera Lagoon
[74] for a further two years in order to allow water
skiers to find an alternative recreational site. The decision struck the
Human Rights Committee as a particularly worrying illustration of land
management practices that prioritise non-Indigenous culture over Indigenous
culture.

During oral submissions
to the Committee, Mr Lahlah, the committee member from Mauritius, commented
on the lack of judicial remedies for breaches of the Covenant. Regarding
the Government's decision in relation to Boobera Lagoon Mr Lahlah stated:

As I understand,
the water skiing is going to continue until alternative sites are
found. I would have thought that since this is a Covenant right and
water skiing is not as such a Covenant right, then maybe the reverse
should have happened. I'm not taking this as a light matter. It may
very well be that water skiing is related to property rights guaranteed
under the constitution. It may very well be. I do not know. But in
this case, the court would have had the opportunity of deciding on
these priorities, cultural rights of certain minorities guaranteed
under the Covenant and property rights not guaranteed under the Covenant
but guaranteed elsewhere. [75]

At paragraph 11 of
its Concluding Observations the Committee commented generally on Australia's
compliance with its obligation to protect minority cultures under article
27 of ICCPR:



The Committee expresses its concern that securing continuation and sustainability
of traditional forms of economy of indigenous minorities (hunting, fishing
and gathering), and protection of sites of religious or cultural significance
for such minorities, that must be protected under article 27, are not
always a major factor in determining land use.



The Committee recommends that in the finalization of the pending Bill
intended to replace the Aboriginal and Torres Strait Islander Heritage
Protection Act (1984), the State party should give sufficient weight to
the above values.

The Committee's observations
and recommendations were in response to the priority given by successive
Australian governments to non-Indigenous land use over the human rights
of Indigenous people.

Criminal justice system

(i) Over-representation in
the criminal justice system and deaths in custody

Indigenous Australians
are grossly over-represented in the criminal justice systems of the states
and territories.

In 1987 a Royal Commission
into Aboriginal Deaths in Custody initiated its investigation into the
deaths of 99 Aboriginal people between January 1980 and the end of 1990.
Amongst other findings, the Royal Commission found that the disproportionate
number of Aboriginal deaths in custody occurred, "not because Aboriginal
people in custody [76] are more likely to die than others
in custody" , but because of "the grossly disproportionate rates
at which Aboriginal people are taken into custody" . [77]

The degree of over-representation
in police custody, as measured by the Commission's study of police cell
custody in August 1988, was twenty-nine times.[78] A
large number of Aboriginal people in police custody were detained in police
lockups, detained in 'protective custody' or arrested for the offence
of public drunkenness or other non-serious offences. [79]

The Royal Commission
made 179 recommendations concerning law reform, changes in policing strategies,
the criminal justice and coronial systems. The Royal Commission also warned
that such changes, in themselves, would not be sufficient. Issues 'underlying
the alienation of Aboriginal people and their continuing conflict with
the law' [80] required more fundamental changes including
redressing the disadvantage of Aboriginal people in relation to their
economic position, health factors including substance abuse, access to
an economic base including land and employment, and in relation to education.
[81] The report made further recommendations in relation
to these wide-ranging causes of Indigenous over-representation in custody.

Despite the recommendations
of the Royal Commission into Aboriginal Deaths in Custody in 1991, the
rate at which Indigenous people come into contact with the criminal justice
system has not improved in the past decade:

• From 1988 to
  1998, the Indigenous prisoner population (across all age groups) has
  more than doubled. It has grown faster than non-Indigenous prisoner
  rates in all jurisdictions. Nationally, Indigenous prison populations
  have increased by an average of 6.9% per year for the decade. This is
  1.7 times the average annual growth rate of the non-Indigenous prison
  population; [82]
  
  
  
• Figures for the
  June 1999 quarter indicate that 76% of all prisoners in the Northern
  Territory (NT) and 34% of all prisoners in Western Australia (WA) were
  Indigenous. The rate of imprisonment of Indigenous people in Western
  Australia was 21.7 times higher than that of the non-Indigenous population.
  The rates in the other states for which statistics are available are
  also unacceptably high - 15.7 times higher in South Australia, 12.2
  times higher in Victoria, 11.3 times higher in Queensland, 9.9 times
  higher in the Northern Territory and 5.1 times higher in Tasmania.
  
  
  
• The number of
  Indigenous deaths in custody in the decade since the Royal Commission
  into Aboriginal Deaths in Custody has also increased:
  
  
  
• To September 1999
  there had been 147 deaths in custody, compared to the 99 in the decade
  preceding the Royal Commission;
  
• In the 9 months
  since September 1999 there have been a further 8 Indigenous deaths in
  custody in Western Australia alone; and
  
• 17.2% of all prison
  deaths in the 1990s have been of Indigenous people compared to 12.1%
  in the 1980s.
  
  
  

The situation in
respect of Indigenous deaths in custody and over representation in the
prison system represents a major failure of social justice in Australia.
No levels of government have responded adequately to the recommendations
of the Royal Commission into Aboriginal Deaths in Custody. In fact, these
problems have been exacerbated by 'law and order' legislative changes,
such as mandatory sentencing, which despite their apparent neutrality
in terms of racial effect, continue to impact disproportionately on Indigenous
Australians.

(ii) Lack of interpreter services
in Court

A further related
issue is the lack of availability of interpreter services in Aboriginal
languages for services, especially health and legal services.

In 1998 to 1999 the
Northern Territory Anti-Discrimination Commissioner conducted an inquiry
into:

• whether there
  is a need for an interpreter service;
  
• the effect of
  a lack of interpreter service on access to government services for Indigenous
  people;
  
• the extent of
  disadvantage suffered by Indigenous people as a result of the lack of
  interpreter services in the delivery of legal and medical services;
  
• feasibility of
  establishing a permanent service, as well as how such a service might
  work (including cost, number of languages, training and access and availability
  due to geographical issues etc); and
  
• alternative approaches
  to ensure equal access to services and facilities.

In July 1999 the
then Northern Territory Anti-Discrimination Commissioner published her
report. [84] The report found as follows:

• Aboriginal people
  represent 27% of the population in the Northern Territory, of which
  74.5% speak an Indigenous language and have a poor understanding of
  English;
  
• Aboriginal people
  are not provided with interpreter services to assist with language difficulties
  in accessing community services, particularly health and legal services;
  
• By comparison,
  all other people of non-English speaking background (who comprise 8%
  of the Territory's population) are able to access free interpreter services
  in over 150 languages;
  
• Aboriginal people
  represent in excess of 50% of clients utilising legal and medical services
  and facilities in the Northern Territory. However, they are unable to
  properly access and utilise those services due to cultural and language
  barriers that inhibit communication between themselves and service providers
  and result in extreme difficulties and cause inappropriate, inefficient
  and non-cost effective delivery of services.

The consequences
of this are that many Indigenous people are unable to provide their informed
consent to invasive medical procedures or to understand court procedures.
The inquiry heard numerous horror stories of medical procedures performed
without consent, as well as widespread concern from the judiciary and
members of the legal profession on the need for interpreter services in
legal processes.

An Aboriginal Interpreter
Service was initiated in April 2000 and now has 176 interpreters covering
104 languages.

The governments'
recognition of the need for an Indigenous interpreter service is a very
positive development. The development of an effective interpreter service
is a long-term goal that will require considerable resources and funding.
It is important to note that the quality of interpreting of Indigenous
languages will be affected by a number of factors, including:

• Interpreting Indigenous
  languages in a legal setting may be more difficult because Indigenous
  languages will not have equivalent concepts for the legal concepts of
  Western cultures and languages. The development of Indigenous interpreter
  services is further complicated by the fact that Indigenous languages
  are not traditionally written languages.
  
• The development
  of Indigenous interpreter services needs to take place in conjunction
  with the development of training programs for the training of Indigenous
  interpreters. In Australia, there is currently no training available
  at the 'professional' level for Indigenous language interpreters. Consequently,
  Indigenous interpreters are accredited at only the 'para-professional'
  level.

A long-term commitment
is needed to ensure high quality interpreter services. Funding arrangements
must recognise that the requirements of establishing an Indigenous interpreter
service will be significantly higher than the costs of maintaining existing
non-Indigenous interpreter services in European and Asian languages

The Royal Commission
into Aboriginal Deaths in Custody recommended (recommendation 99) that
legislation in all jurisdictions should provide that the court must be
satisfied that an Aboriginal defendant has the ability to fully express
himself or herself in the English language. If they cannot, then the Court
should not proceed until a competent interpreter is provided without cost
to that person.

The failure of governments
to date to provide adequate interpreter services breaches international
requirements under the ICERD and the ICCPR, including:

• Article 26 of
  the ICCPR: Equality before the law.
  
• Articles 9(2)
  of the ICCPR: The right of a person who is arrested to be promptly informed
  of the reason for arrest and of any charges to be laid;
  
• Article 14(3)(f)
  of the ICCPR: The right of a person charged with a criminal offence,
  in full equality and as a minimum guarantee, to have the free assistance
  of an interpreter in court; and
  
• Articles 1(4),
  2 and 5 of the ICERD: which guarantee non-discrimination and equality
  before the law. The provision of court interpreters, where required,
  is fundamental to a fair trial and equal treatment in legal proceedings

(iii) International Commentary
on Indigenous People in the Criminal Justice System

The over-representation
of Indigenous people in custody and the lack of interpreter services in
the criminal process have been the subject of recent comment by the CERD
Committee:

15. The Committee
notes with grave concern that the rate of incarceration of indigenous
people is disproportionately high compared with the general population.
Concern is also expressed that the provision of appropriate interpretation
services is not always fully guaranteed to indigenous people in the
criminal process. The Committee recommends that the State party increase
its efforts to seek effective measures to address socio-economic marginalisation,
the discriminatory approach to law enforcement and the lack of sufficient
diversionary programmes. [85]

The Committee also
raised the issue of the provision of interpreters in court proceedings:

I'd also like to
hear you talk, we've talked about equal access to law, a little bit
about interpreter services. That's been raised with me that in courts,
while there is a program to guarantee interpretation services to non-English
speakers, that the service is not extended to, in general, to the Aboriginal
community, or that it's not available or it's not able to be used successfully,
and so I would like to hear your comments there.

Mandatory sentencing

Protection of basic
human rights has been further eroded in Australia's criminal justice systems
by the enactment of racially discriminatory mandatory detention laws in
Western Australia (WA) and the Northern Territory (NT) in 1996 and 1997
respectively. These laws remove judicial sentencing discretion by requiring
courts to impose minimum sentences of detention or imprisonment on people
convicted of certain offences and discriminate against Indigenous people
by targeting non-serious offences more likely to be committed by Indigenous
people,

The WA laws came
into effect on 14 November 1996 through amendments to the Criminal Code
1913 (WA). These amendments provide that when convicted for a third time
or more for a home burglary, adult and juvenile offenders must be sentenced
to a minimum of 12 months imprisonment or detention (the 'three strikes
and you're in' legislation). The provisions contain some allowance for
both adults and juveniles to be released under supervision.

The NT laws came
into effect on 8 March 1997 through amendments to the NT Sentencing
Act 1995 and the Juvenile Justice Act 1983. The Sentencing Act provisions
apply only to persons aged 17 years or over. [88] Under
Section 78A of the Sentencing Act persons found guilty of certain
property offences shall be subject to a mandatory minimum term of imprisonment
of 14 days for a first offence. For a second property offence the mandatory
minimum sentence is 90 days. For a third property offence the period of
imprisonment is one year.

The NT Sentencing
Act was recently amended again to provide that courts are not required
to impose a sentence of detention under these provisions in certain 'exceptional
circumstances'. However, this applies to adults only and not to juveniles.

Unlike the laws relating
to adults which can be invoked at the first conviction, the mandatory
detention provisions relating to juveniles in the NT require at least
one prior conviction. Under section 53AE of the NT Juvenile Justice
Act a person aged 15 or 16 years who has been convicted of a relevant
property offence and has had at least one prior conviction for such an
offence must be subject to detention for at least 28 days. Furthermore,
the court may impose an additional 'punitive work order' provided its
effect is not to release the child from the requirement to serve the mandatory
sentence. [89]

The NT criminal justice
system treats people as adults once they attain the age of 17 years. This
means that 17 year olds will be subject to the adult mandatory detention
provisions in the Sentencing Act. As indicated above, those provisions
are not limited to repeat offenders and can be invoked on a first conviction.
In addition, under the Juvenile Justice Act a person who turns
17 while serving a term in a juvenile detention facility is required to
be transferred to an adult prison to serve out the remainder of the sentence.

For the purpose of
the NT mandatory detention provisions, relevant property offences include:

• theft (irrespective
  of the value of the property, and excluding theft when the offender
  was lawfully on premises);
  
• criminal damage;
  
• unlawful entry
  to buildings;
  
• unlawful use of
  vessel, motor vehicle, caravan or trailer (whether as a passenger or
  driver);
  
• receiving stolen
  goods (regardless of value);
  
• receiving after
  change of ownership;
  
• taking reward
  for the recovery of property obtained by criminal means;
  
• assault with intent
  to steal; or
  
• robbery (armed
  or unarmed). [90]

Mandatory sentencing
for minor property offences has a disproportionate impact on Indigenous
Australians. Indigenous offenders more commonly commit the offences targeted
for mandatory sentencing than non-Indigenous offenders. The arbitrariness
of the distinction between property offences and other types of theft,
the latter not being subjected to mandatory sentencing, is demonstrated
by the following example. Whereas the theft of petrol from a bowser will
attract a mandatory sentence, the theft of a tankful of petrol through
the use of a fraudulent credit card does not. [91] Indigenous
peoples do not commonly commit the latter type of 'white collar' crimes.
The mandatory sentencing provisions also affect Indigenous children disproportionately.
Indigenous children are more often charged with the offences targeted
for mandatory sentencing than non-Indigenous children.

Where a pattern of
sentencing, such as this, reveals that certain groups are more likely
to receive the harshest penalties, sentencing is discriminatory. [92]
Such discrimination is prohibited under numerous international conventions
to which Australia is a party, including the guarantee of equality and
non-discrimination under Articles 2 and 26 of the ICCPR [93]

In response to the
public backlash against the introduction of mandatory sentencing laws
in Australia, the Commonwealth government and the Northern Territory government
reached an agreement that provides for the diversion of juveniles from
custody by giving Northern Territory police discretion to divert juveniles
at the pre-charge stage.

However, this agreement
does not confer any greater discretion upon the courts. Instead discretion
is vested in police officers to decide whether to pursue a matter through
diversionary programs or through the courts, in which case mandatory sentencing
will apply. Furthermore, mandatory detention laws in the Northern Territory
and Western Australia do not allow for a right of appeal against the sentence
if the sentence equates with the minimum permitted. The legislation is
therefore also in breach of Article 14(5) of the ICCPR, which provides
for the right to appeal a sentence, and Article 14(5) of the ICCPR, which
provides that the sentence be reviewable by a higher tribunal according
to law. The HRC has interpreted the phrase 'according to law' in Article
14.5 of the ICCPR as 'not intended to leave the very existence of the
right to review to the discretion of the States parties.' [94]

In addition, the
resulting changes to the mandatory sentencing regimes in relation to youth
offenders are insufficient. Under the Western Australian system, no inherent
concession is given to juveniles apart from the possibility of detaining
such people in a prescribed 'detention centre' rather than a prison. Some
concessions are given to children under the Northern Territory regime,
although the NT regime is harsher than the WA regime. Under the Northern
Territory mandatory sentencing regime, a juvenile can possibly be sentenced
to 28 days' imprisonment whereas an adult would be sentenced to 14 days'
imprisonment for the same crime under the NT regime. [95]

Article 14(4) of
the ICCPR provides that in the case of juveniles the procedure shall take
account of their age and promote their rehabilitation. Mandatory detention
removes the court's discretion to take these factors into account. The
recent amendments to the NT regime do not redress this situation.

Article 24 of the
ICCPR recognises the right of every child, without any discrimination,
to receive from his family, society and the State the protection required
by his status as a minor. This also entails the adoption of special measures
to protect children. [96] Article 24: Rights of the
Child: Mandatory sentencing is also inconsistent with several Articles
of the Convention on the Rights of the Child (CROC), namely Article 3.1,
37(b), 40.2(b) and 40.4. Violations of these Articles of CROC constitute
persuasive evidence of violations of Article 24 of the ICCPR.

International Commentary on
Mandatory Sentencing

(i) Consideration
of Mandatory Sentencing by the CERD Committee in March 2000.

In its consideration
of Australia in March 2000 the CERD Committee were particularly concerned
by the following aspects of the mandatory sentencing or detention laws
in the Northern Territory and Western Australia:

• the unwillingness
  of the federal government to ensure compliance of the states and territories
  with Australia's obligations under the Convention;
  
• the (lack of)
  effectiveness of government programs to reduce the over-representation
  of Indigenous people in the criminal justice system;
  
• the related problem
  of the lack of interpreter services in court proceedings; and
  
• the inadequate
  response of government to the historically derived disadvantage faced
  by Indigenous people.

The Committee also
noted that mandatory detention laws may be discriminatory in their impact,
and accordingly breach the obligations in Articles 2 and 5 of the Convention.
The Country-Rapporteur expressed her concern as follows.

My question is
this, that first of all does the state party share the view that these
mandatory sentencing regimes are inconsistent with its obligations
under our Convention and perhaps under others? And I also wonder,
I understand that there has been a legal committee of the government
that has studied and concluded that quote, 'that the weight of the
evidence of the committee was that the mandatory sentencing laws have
a discriminatory impact on indigenous peoples and that is contrary
to the provisions of CERD', and they named Articles 2 and 5 particularly.
So I would want to know whether or not the state party fully agrees
with that. [97]

The Country-Rapporteur's
questions reflect the recognition in CERD that discrimination may be indirect
as well as direct. The definition of racial discrimination in CERD clearly
incorporates indirect discrimination in Article 1.1, which includes discrimination
'in purpose or effect'.

The Australian government
responded to these issues as follows:

I'm not offering
it to defend it because my Prime Minister has said he personally does
not favour mandatory sentencing provisions… [But] mandatory sentencing
only occurs where there has been a breach of law, primarily in relation
to property offences - in the case of Western Australia, home burglary
- which were seen as very significant issues in those jurisdictions,
so it only operates there. It requires a conviction for an offence.
It also requires conviction under our law where the burden of proof
is beyond reasonable doubt. It's not a low order burden of proof that
operates in relation to these matters. And the fact is that under
our criminal justice system, the responsibility for those questions
rests with the states.

Now, the Commonwealth
has expressed its concern about the impact of these laws on young
people in particular, and in relation to the impact on indigenous
peoples. Now I think the impact can be quite variable, because convictions
are required, I'd suspect that it's probably, in many cases, going
to be more difficult for convictions to occur, because I think it's
a natural reaction that those who are involved in the proceedings
work harder to make sure that if a mandatory sentence is likely, that
it is resisted, if there is any possible doubt. And one of the points
that's been made to me is that while Aborigines are over-represented
in our criminal justice statistics - and that is something that we
have been concerned about, it's something that's been addressed by
Royal Commissions, it's something in which we are putting a lot of
work with the states to try to redress - but the fact is that mandatory
sentencing is likely to produce an outcome where indigenous people,
if the offences related to these matters, would be less represented
in the statistics, rather than more represented. And it is certainly
the case that it cannot be established that mandatory sentencing has
significantly led to, or contributed to, over-representation in our
criminal justice system.

Now that doesn't
justify it. I simply put it before you as material that has been in
the public arena. We are a democracy, where these issues are discussed
and debated, and debated very vigorously. The Commonwealth Attorney-General,
my ministerial colleague, has written to his counterparts in both
Western Australia and the Northern Territory, asking them to review
their laws, particularly as they impact upon young people… The
Commonwealth is very conscious of looking for other ways through this
issue, and we are seeking, from a committee of members of parliament,
advice on further diversionary programs, and looking at the interpreter
issue to see whether there are ways forward, progressively, to address
these questions, which can help in alleviating some of the concerns
about the mandatory sentencing question… [98]

The government
considers that it is better to address the problem of repeat offenders
through program aimed at prevention, rehabilitation and diversion…
The government's main priority is to address the causes underpinning
the over-representation of Indigenous people in prison. We believe
we're meeting our obligations under CERD. [99]

These explanations
are deeply unsatisfactory. There is no evidence to support the claim that
it will be more difficult to get a conviction under mandatory sentencing
because of the standard of proof required. There is also no evidence that
'mandatory sentencing is likely to produce an outcome where indigenous
people… would be less represented in the statistics'.

A common misconception
about the arguments relating to the discriminatory nature of mandatory
sentencing is the suggestion that mandatory sentencing depends on it having
'significantly led to, or contributed to, over-representation in our criminal
justice system' for it to be discriminatory. There is no clear evidence
that it has led to over-representation, but this is not the point. The
issue is that mandatory detention is diametrically opposed to the accepted
goals of the Royal Commission into Aboriginal Deaths in Custody of preventing
incarceration wherever possible. It militates against efforts to reduce
levels of over-representation in custody.

The CERD Committee
expressed concern at mandatory sentencing in its Concluding Observations
in March 2000 as follows:

16. The Committee
expresses its concern about the minimum mandatory sentencing schemes
with regard to minor property offences enacted in Western Australia,
and in particular in the Northern Territory. The mandatory sentencing
schemes appear to target offences that are committed disproportionately
by indigenous Australians, especially juveniles, leading to a racially
discriminatory impact on their rate of incarceration. The Committee
seriously questions the compatibility of these laws with the State party's
obligations under the Convention and recommends to the State party to
review all laws and practices in this field. [100]

(ii) Consideration
of Mandatory Sentencing by the Human Rights Committee in July 2000.

In the dialogue with
the Human Rights Committee, the Australian government provided more expansive
answers on why it considered that mandatory sentencing laws are not racially
discriminatory: [101]

In relation to
Articles 24 and 26 (of the ICCPR), the Government submits that mandatory
detention laws do not discriminate against any group of people in
ways that are prescribed by these Articles. The Government notes that
these laws apply to all citizens equally, irrespective of race. This
is consistent with the approach to discrimination adopted by the Committee.
There is no distinction made in the legislation as to its application
to various groups of people. For this reason, the Western Australian
and Northern Territory legislation cannot be considered discriminatory...
[102]

mandatory detention
laws are laws of general application... they apply without any distinction
as to race or other characteristics… In the Government's view,
the fact that the detention laws apply only to selected offences does
not mean that the laws discriminate against indigenous people or any
other group. This Committee in its general comment on non-discrimination
has said that not every differentiation will constitute discrimination
if the criteria for such differentiation are reasonable and objective.

The Northern
Territory and Western Australian Governments have identified particular
offences as being of significant concern to their communities. For
example, Western Australia has the highest rate of home burglary in
Australia and the Western Australian Government has stated that people
who are the victims of home burglary suffer not only the loss of valuable
possessions, but also the feeling that the sanctity of their homes
has been violated….

The relevant
State and Territory Governments have identified the basis for the
selection of particular offences as appropriate for mandatory detention
in cases of repeat offending as being their seriousness in terms of
community impact. This is a reasonable and legitimate objective
of the criminal law.

The Governments
in question have determined that mandatory minimum sentences for serious
property offences and home burglary are not unreasonable,
unjust or non proportional when taking into account the nature
of the crimes in question, their repeat nature and the level of community
concern about them. [103]

This answer does
not acknowledge that the prevention of discrimination clearly includes
discrimination that may be unintentional, but which nevertheless still
has a disparate impact. It also misrepresents the circumstances in which
a differentiation of treatment is 'reasonable and objective'. As noted
above in relation to the margin of appreciation argument under CERD, the
circumstances in which a 'differentiation of treatment' is justifiable
do not extend to permitting invidious discrimination.

But even were such
a balancing exercise allowable under the ICCPR, it is patently false to
suggest that the mandatory sentencing laws, particularly those in the
Northern Territory, relate only to 'serious property offences'. The mandatory
sentencing laws apply to petty or minor property offences and it is inconceivable
that such harsh laws could be seen as proportionate, reasonable or just
in these circumstances.

A final concern about
the government's justifications of mandatory sentencing is the stated
commitment to diversionary and non-custodial options to address the underlying
causes of over-representation. There is no logical connection between
such a commitment and the existence of mandatory sentencing.

Lord Colville, a
member of the Human Rights Committee, explained this issue well in relation
to the funding agreement between the Northern Territory and federal governments:

I was extremely
interested in hearing from Ms Leon that $A5 million per year are being
devoted to diversionary programs, orders for the police to avoid bringing
charges provided that somebody will comply with some other diversionary
program or possibly the powers of the Magistrates, limited though
they may be, to pass what I believe are conditional release orders
instead of using the mandatory sentence.

Now, there is
a dilemma here I think for the delegation. Either these are palliatives
which indicate that there is a recognition that mandatory sentencing
is unfair in itself in which case my point is proved, or alternatively,
there is no particular reason to spend $A5 million per year in the
Northern Territories and Western Australia to provide these diversionary
programs which are not available or are not funded in other parts
of the Australian Territory.

Now, I don't
think the delegation can have it both ways, and therefore, this is
another aspect of discrimination which I would bring to their attention
and I would ask them to reflect upon it. [104]

The Human Rights
Committee expressed its concern at mandatory sentencing in its Concluding
Observation in July 2000:

17. Legislation
regarding mandatory imprisonment in Western Australia and the Northern
Territory, which leads in many cases to imposition of punishments
that are disproportionate to the seriousness of the crimes committed
and would seem to be inconsistent with the strategies adopted by the
State party to reduce the over-representation of indigenous persons
in the criminal justice system, raises serious issues of compliance
with various Articles in the Covenant.

The State party
is urged to reassess the legislation regarding mandatory imprisonment
so as to ensure that all Covenant rights are respected. [105]

(iii) Consideration
of Mandatory Sentencing by the Committee Against Torture in November 2000.

The Committee Against
Torture has also expressed its concern that the mandatory sentencing legislation
breaches the Convention Against Torture to which Australia is a signatory.
In November 2000 the Committee stated:



…(e) Legislation imposing mandatory minimum sentences, which has
allegedly had a discriminatory effect regarding the indigenous population
(including women and juveniles), who are over-represented in statistics
for the criminal justice system.

The Committee Recommended:

The State party
keep under careful review legislation imposing mandatory minimum sentences,
to ensure that it does not raise questions of compliance with its international
obligations under the Convention and other relevant international instruments,
particularly with regard to the possible adverse effect upon disadvantaged
groups.

---

51 (1996) 187 CLR 1

52 section 7 NTA

53 Wik v Queensland (1996) 187 CLR 1 ('Wik').

54 NTA, Division 2A, Part 2. S22F provides that states
and territories may validate intermediate acts attributable to the state
and territory.

55 NTA, s22A, 22F

56 NTA, s23(6)

57 NTA, s229

58 NTA, s230

59 NTA, s231, 232

60 Committee member Mr Wulfrum, in Committee on the Elimination
of Racial Discrimination, Summary record of the 1287th meeting (53rd
session), 14 August 1998, UN Doc CERD/C/SR.1287, para 32. See also comments
by Mr Van Boven, Ms McDougall and Mr Garvalov at paras 29, 38 and 42 respectively.


61 Committee on the Elimination of Racial Discrimination,
Decision 1(53) concerning Australia, 11 August 1998. UN Doc CERD/C/53/Misc.17/Rev.2.

62 Committee on the Elimination of Racial Discrimination,
Decision (2)54 on Australia - Concluding observations/ comments,
18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2. Herein CERD Decision.

63 Ibid., at para 12.

64 The oral appearance of the Australia government delegation
before the CERD Committee is documented in two ways:

(1) the unofficial, complete transcript of the dialogue by Foundation for
Islander Research Action (FAIRA), Transcript of Australia's hearing before
the CERD Committee - 1393rd, 1394th and 1395th meetings, 21-22 March
2000, FAIRA, Brisbane 2000, ( FAIRA, CERD Transcript,- 21-22 March 2000),
see also www.faira.org.au/cerd/;
and

(2) the official United Nations summary records: Committee on the Elimination
of Racial Discrimination, Summary record - 1393rd meeting, UN Doc
CERD/C/SR.1393; Committee on the Elimination of Racial Discrimination, Summary
record - 1394th meeting, UN Doc CERD/C/SR.1394 (Transcript only available
in French); Committee on the Elimination of Racial Discrimination, Summary
record - 1395th meeting, UN Doc CERD/C/SR.1395; Committee on the Elimination
of Racial Discrimination, Summary record - 1398th meeting, UN Doc
CERD/C/SR.1398 (Transcript only available in French).

Reference is also made to the written answers provided by the Australian
delegation to the Committee. Copies of the written answers supplied by the
government are available from the Secretariat of the CERD or by contacting
the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner,
HREOC.

65 CERD Committee, Concluding Observations 2000, op. cit.,
para 8

66 Review of the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984, Report by Elizabeth Evatt AC, 21 June
1996 para 2.30. http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt

67 Hansard, Reps 9 May 1984, 2130. "The original title
of the Act was the Aboriginal and Torres Strait Islander Heritage (interim
Protection) Act 1984. Review of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, Report by Elizabeth Evatt AC,
21 June 1996 http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt

68 The report on the protection of the heritage of Indigenous
people by Erica-Irene Daes is the most comprehensive statement from an international
organisation of the appropriate standards for the protection of Indigenous
peoples' heritage. The principles and guidelines are widely endorsed by
Indigenous peoples and reflect the position of the Working Group on Indigenous
Populations, the most expert group on Indigenous issues in the United Nations
system. The principles were elaborated in accordance with the Working Group's
mandate to develop standards regarding the rights of Indigenous peoples.


69 ibid, para 1.

70 ibid, para 2.

71 ibid, para 3.

72 ibid, para 4.

73 ibid, para 5.

74 Hill, Senator Robert, Press Release: Decision on
the Future of Boobera Lagoon, 28 June 2000, www.environment.gov.au/minister/env/2000/mr28jun00.html,
(27 November 2000).

75 Mr Lahlah, Transcript of Human Rights Committee's
examination of Australia, 21 July 2000, www.faira.org.au
(27 November 2000).

76 Report, Royal Commission into Aboriginal Deaths in Custody,
National Report, Volume 1, 1991, 1.3 'The Disproportionate numbers of Aboriginal
People in Custody' (Herein 'RCIADC Report')

77 RCIADC Report, ibid., Preface

78 RCIADC Report, ibid., 1.3 'The Disproportionate numbers
of Aboriginal People in Custody' at 1.3.2

79 RCIADC Report, ibid., 1.6 'Reducing the Number of Aboriginal
People in Custody - The Criminal Justice System' at 1.6.2

80 RCIADC Report, ibid., Preface

81 RCIADC Report, ibid., 1.3 'The Disproportionate numbers
of Aboriginal People in Custody'

82 Carcach, C., Grant, A. and Conroy, R., Australian
corrections: The imprisonment of Indigenous people Australian Institute
of Criminology (AIC), Trends and Issues in Crime and criminal justice:
No. 137, AIC, Canberra, 1999, p2.

83 Australian Bureau of Statistics, Corrective Services,
June Quarter 1999, Ref: 4512.0, pp5, 21-22.

84 Office of the Northern Territory Anti-discrimination
Commissioner, Report: Inquiry into the provision of an interpreter service
in Aboriginal languages by the Northern Territory government, 1999.

85 CERD Committee, Concluding Observations 2000,
op.cit., at para 15

86 Ms McDougall in FAIRA, CERD Transcript - 21-22 March
2000, 1393rd meeting, Part II, p5.

87 Criminal Code (WA), s401(4).

88 Sentencing Act 1995 (NT), s4.

89 Juvenile Justice Act 1983, s53AF.

90 Sentencing Act 1995 (NT), Schedule 1.

91 Martin, G, Seminar on Mandatory Sentencing, at Indigenous
Human Rights Conference, Byron Bay, February 2000.

92 Human Rights and Equal Opportunity Commission Human
rights brief no.2: Sentencing juvenile offenders, p5.

93 See also Human Rights Committee, General Comment
18, Non-discrimination. 10/11/89. (Thirty-seventh session, 1989), paragraph
7.

94 Salgar de Montejo v Colombia (64/79), paragraph
10.4.

95 See H. Bayes, 'Justice is blind: Mandatory sentencing
of children in Western Australia and the Northern Territory', (1999) 22(1)
University of New South Wales Law Journal 286, p. 286.

96 Human Rights Committee, General Comment 17, Rights
of the Child (Article 24). 07/04/89. (Thirty-fifth session, 1989), at
paragraph 1.

97 Ms McDougall in FAIRA, CERD Transcript - 21-22
March 2000, 1393rd meeting, Part II, p5.

98 Minister Ruddock in FAIRA, CERD Transcript - 21-22
March 2000, 1394th meeting, Part III, pp6-7.

99 Commonwealth of Australia, Written answers to the
Committee on the Elimination of Racial Discrimination. Issue: Mandatory
sentencing laws.

100 CERD Committee, Concluding Observations 2000,
op.cit. at para 15

101 Note: the government presented a range of arguments
in relation to how mandatory sentencing provisions are consistent with article
9, 10, 14 and so forth: See further Ms Leon in FAIRA, Human Rights Committee
Transcript, 20 July 2000, pp27-30. These arguments are not addressed
here. Note, however, the extensive and persuasive response of Lord Colville,
in ibid, 21 July 2000, pp 32-42.

102 Ms Leon in FAIRA, Human Rights Committee Transcript,
20 July 2000, pp27-30.

103 Ibid, 21 July 2000, pp 15-16. Emphasis added.

104 Lord Colville, in ibid, 21 July 2000, pp 32-42.

105 Human Rights Committee. Concluding Observations,
op. cit., para 17.

Last updated 7 October 2003.