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Social Justice Report 2000: Appendix 1 Information concerning Australia provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000

Social Justice Report 2000

Appendix 1

Information concerning Australia provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000.

The following is an extract of the information provided to these committees:

 

1) Committee on the Elimination of All Forms of Racial Discrimination (CERD): additional information to Australia's 10th, 11th and 12th periodic reports under CERD, March 2000;

2) Human Rights Committee: additional information to Australia's third and fourth periodic reports, for consideration during the 69th session, June 2000; and

3) Committee on Economic, Social and Cultural Rights: information in relation to consideration of Australia, August 2000.

 

All information was brought to the attention of the Australian government through a range of HREOC publications and submissions.

The appendices give a summary of the information provided to these committees concerning the following issues:

 

1) Native title;

2) Racial Discrimination Act 1975 (Cth) and the lack of an entrenched guarantee against racial discrimination;

3) Heritage protection;

4) Indigenous disadvantage and special measures;

5) Self-determination;

6) Indigenous people in custody;

7) Mandatory sentencing;

8) The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and Their Families, Bringing them home;

9) Abolition of bilingual education programs in the Northern Territory; and

10) Interpreter services in Aboriginal languages in the Northern Territory.

 

1. Native Title

Summary of Issue

 

  • Native title is the legal recognition given to the traditional laws acknowledged by, and the traditional customs observed by, Indigenous people. The High Court of Australia has also recognised the power of the State to extinguish native title.
  • The common law is developing a construction of native title that makes it vulnerable to permanent extinguishment. This construction is referred to as a bundle of rights approach to native title. Rather than the relationship between these rights being perceived as a system of rights, native title is seen as a set of traditional practices that will only be protected by the law if they continue to be practised as they were by the original inhabitants.
  • Amendments to the following aspects of the Native Title Act prefer non-Indigenous title to land over Indigenous title to land:

    (i) The validation provisions;

    (ii) The confirmation provisions;

    (iii) The future act provisions; and

    (iv) The right to negotiate.

  • In each of these instances, Indigenous interests are either extinguished or impaired in order to ensure the full enjoyment of non-Indigenous interests in land where there is any inconsistency between Indigenous and non-Indigenous interests. [1]
  • Native title holders are relevantly different to other persons vested with interests in land, given their level of dispossession and disadvantage. It is fitting that native title should be given particular protection consistent with the internationally recognised rights to enjoy one's culture and not be arbitrarily deprived of property. [2]

 

Relevance to the ICERD

 

  • Articles 1(1): A distinction based on race which has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing;
  • Article 2(1)(a): States not to engage in discrimination;
  • Article 2(1)(c): States to repeal all discriminatory laws;
  • Article 5: Equality before the law; and
  • Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination.

 

The amendments to the Native Title Act and their relevance to ICERD: Decision 2(54) of the CERD noted that the validation, confirmation and primary production upgrade provisions, and restrictions and exceptions to the right to negotiate discriminate against native title holders. Since August 1999, state and territory native title legislation continues to be considered or has been enacted under the authority of the above discriminatory provisions. The Commonwealth legislation's authorisation of state and territory native title regimes also denies Indigenous peoples 'effective protection and remedies' against acts of racial discrimination that violate their human rights and fundamental freedoms, as required under Article 6.

 

  • 'Validation' provisions: Generally states and Territories have been unwilling to negotiate an alternative to blanket validation legislation. The validation of intermediate period acts deprives native title holders of procedural rights to engage in decisions about land, substituting a compensation scheme for rights removed.
  • 'Confirmation' provisions: All states and Territories except Tasmania have introduced confirmation legislation. Since August 1999, Western Australia has passed legislation confirming extinguishment on further titles.
  • 'Right to negotiate' provisions: In paragraph 7 of Decision 2(54) the CERD expressed its concern that provisions within the NTA that place 'restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses' are discriminatory. Most states and territories have introduced legislation that contains provisions that restrict the ability of native title holders to negotiate over non-Indigenous land uses.
  • Failure of the amended Native Title Act to incorporate the principles of equality: In order to restitute the principles of equality and non-discrimination in state legislation it would be necessary to amend the Commonwealth Native Title Act so as to make it consistent with the RDA.
  • Lack of consultation and informed consent for the amendments: The failure of the government to enter into negotiations with native title holders to amend the Native Title Act also places Australia in breach of its obligations under the Convention.

 

Relevance to the ICCPR

 

  • Articles 1 and 27: Self-determination and the rights of minorities; and
  • Articles 2 and 26: Non-discrimination and equality

 

Articles 1 and 27: Self-determination and the rights of minorities

The extinguishment or impairment of native title is a breach of Articles 1 and 27 of the ICCPR, which require the state to protect the culture of Indigenous peoples. The HRC has confirmed that Indigenous peoples are minorities for the purposes of Article 27 in a number of cases, such as in Kitok v Sweden (197/85), Ominayak v Canada (167/87), and the L nsman cases (511/92 and 671/95). The HRC has also recognised the special place of land rights within Indigenous cultures, and that this 'does not prejudice the sovereignty and territorial integrity of a State party'. [3]

The following provisions of the amended NTA and developments in the common law subordinate Indigenous interests to those of non-Indigenous interests:

 

  • Future act provisions: The absolute protection of future acts on native title land means that native-title holders do not have any meaningful right to participate in the decision of whether the act will be performed. In this regard, the 'future acts' and especially the 'primary production' breach Articles 1 and 27 of the ICCPR; the 'upgrade' provisions also breach Australia's positive duties to protect native title under Article 1.
  • Right to negotiate: Diminution of the right to negotiate diminishes Article 1 rights of self-determination, as interpreted by UN treaty bodies, by rolling back opportunities for Indigenous peoples to participate in the management of their land and resources. [4] Denial of native title holders' right to negotiate also amounts to denial of a minority's exercise of cultural rights, which constitutes a breach of Article 27.
  • 'Validation' and 'confirmation' provisions: The validation provisions, which retrospectively validate all land grants issued in contravention of native title rights, and the confirmation provisions, which wholly extinguish native title rights, or authorise such extinguishment, and therefore wholly deny cultural rights associated with affected land, to a breach of Article 27 rights.
  • Lack of consultation and informed consent for the amendments: The failure to consult constitutes a breach of Article 27. In particular, General Comment 23 states, at paragraph 7: 'The enjoyment of [cultural] rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.'
  • Common law of native title: Article 27 of the ICCPR protects minority contemporary cultural practices [5] as well as traditional practices. Under the 'bundle of rights' approach, each particular native title right can be extinguished on the basis of inconsistency with the exercise of rights pursuant to an act of the Crown.
  • Where the common law is developing in a direction contrary to Australia's obligations under ICCPR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people.

 

Articles 2 and 26: Non-discrimination and equality

Articles 2 and 26 of ICCPR require the State to protect Indigenous rights to land to the same extent that non-Indigenous interests in land are protected. The priority given to non-Indigenous interests in land over Indigenous interests in land is a breach of these Articles.

The following provisions of the NTA breach these articles:

 

  • 'Validation', 'confirmation' and future act provisions: These provisions diminish the property rights of native title holders and increase the property rights of non-native title holders. Although property is not a protected ICCPR right, Article 26 prohibits discrimination in relation to the exercise of all human rights, including non-ICCPR rights. [6]
  • Right to Negotiate: Even if the 'right to negotiate' is classified as a 'special measure', it cannot be said to have exhausted its purpose. There is no evidence that Indigenous people no longer suffer the effect of past discrimination on pastoral leasehold land. [7] Such positive measures must also respect the provisions of both Articles 2(1) and 26 of the Covenant as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population.
  • Failure of the amended Native Title Act to incorporate the principles of equality: The Racial Discrimination Act 1975 (Cth) embodies Australia's domestic implementation of its obligations under CERD. [8] It makes discrimination on the basis of race, colour, descent or national or ethnic origin unlawful. It binds both state and federal governments. The recent amendments to the NTA [9] provided an opportunity to apply the RDA unequivocally. As amended, section 7 of the NTA does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA.

 

Relevance to the ICESCR

 

  • Article 1: Self-determination;
  • Article 2.1: Progressive realisation of rights;
  • Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis; and
  • Article 15: Native title and cultural rights.

 

Article 1: Self-determination

There are two bases on which the protection of native title is required in order to meet the obligation under Article 1 in relation to the right to self-determination.

 

  • The first is the strong link established in international law between the right of self-determination for Indigenous peoples and control over their lands and resources.[10]
  • The second basis for the protection of native title encompasses political participation rights, including the right to be consulted and to give or withhold consent on an informed basis in respect of decisions that will directly affect Indigenous peoples. The right of effective participation applies to the decision to enact and amend legislation in respect of native title.
  • The fact that traditionally Aboriginal and Torres Strait Islander people used their land as a resource for the sustenance and well being of their community is not, under the amended NTA, translated into a right to participate in the modern management of their land. Native title rights are isolated from the day-to-day lives of the communities that observe and integrate their traditions into the texture of contemporary life. In this way native title is quarantined from the broader principle of self-determination.

 

Article 2.1: Progressive realisation of rights

 

  • Article 2.1 of ICESCR requires States to take steps to achieve progressively the full realisation of the rights recognised by the Covenant. Where the common law is developing in a direction contrary to Australia's obligations under ICESCR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people.
  • The amended NTA does not overcome the inadequate protection extended to native title by the common law. Indeed the confirmation provisions seek to confirm, and at times go beyond, the extinguishments permitted by the common law. - The NTA also displaces, to the extent of any inconsistency, the only explicit protection against the discriminatory exercise of sovereign power against the Indigenous inhabitants, the Racial Discrimination Act 1975 (Commonwealth) (RDA).
  • Significant aspects of the amended NTA are discriminatory and thus inconsistent with the RDA. Without any constitutional entrenchment of either non-discrimination norms or Indigenous rights in Australia, through a Bill of Rights, there is no domestic mechanism to ensure that the cultural and economic rights of Indigenous people are protected.

 

Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis

 

  • Article 2.2 of ICESCR requires that the rights conferred by the Convention be enjoyed on a non-discriminatory basis.
  • The CERD's March 1999 decision under its early warning and urgent action procedures in respect of Australia's compliance with its obligations under the ICERD found that the amended NTA was discriminatory in that it preferred non-Indigenous interests over Indigenous ones.
  • The CERD's analysis supports the conclusion that there is a contravention of the non-discrimination requirements of ICESCR as reflected in Article 2.2.

 

Article 15: Native title and cultural rights

 

  • Article 15 provides for the right of everyone to take part in cultural life (15(a)). Accordingly, any diminution of native title rights is a derogation from the right of Indigenous people to take part in and enjoy their cultural life. The amendments to the NTA will make it more difficult to protect important cultural and sacred sites from mining and other developments, to undertake ceremonies, to instruct children in culture and law and to carry out traditional activities such as camping, hunting and fishing.

 

2. The Racial Discrimination Act 1975 (Cth) and the Lack of an Entrenched Guarantee Against Racial Discrimination

Summary of issue

 

  • There is no entrenched guarantee against racial discrimination in Australian law.
  • The limits of Australia's legal protection against racial discrimination are exposed in two ways:

 

 

1) The Commonwealth can override the protection of the Racial Discrimination Act (RDA) through subsequent legislation: The 1998 amendments to the Native Title Act 1993 (NTA) imply a repeal of the operation of the RDA in relation to native title. As a consequence, states and territories are freed of the constraints normally imposed by the RDA and are no longer required to act in accordance with the principles of CERD in relation to their treatment of native title across a range of matters.

2) The Commonwealth has the constitutional power to discriminate against particular racial groups: The race power of the Constitution was used in 1997 to enact the Hindmarsh Island Bridge Act 1997 (Cth). The High Court held that this law discriminates against Indigenous people, and that Parliament has the power under the Constitution to enact such a law.

 

Relevance to the CERD

 

  • Articles 1(1): A distinction based on race that has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing;
  • Article 2(1)(a): States not to engage in discrimination against a particular group;
  • Article 2(1)(c): States to repeal all laws that discriminate against a particular group; - Article 5: Equality before the law; and
  • Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination.
  • Ability to override the RDA: As amended, Section 7 of the NTA does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA. The Committee noted in Decision 2(54) that several provisions of the amended NTA are discriminatory and in breach of Articles 2 and 5 of the Convention. Accordingly, powers unambiguously authorised by the NTA are freed from the constraints of the RDA and the standards of CERD.
  • Scope of the race power, s51(xxvi) Constitution: The Constitution contains an express power that gives the Commonwealth power to enact legislation 'with respect to ... the people of any race for whom it is deemed necessary to make special laws.' The High Court examined section 51(xxvi) of the Constitution (the race power) in the case of Kartinyeri v The Commonwealth [1998] HCA 22 specifically in relation to a law of the federal Parliament, the Hindmarsh Island Bridge Act 1997 (Cth), and whether the constitutional power under which it was enacted supported legislation that clearly disadvantaged a particular racial group. The legislation sought to withdraw the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to a particular site in order to facilitate the building of a bridge.
  • The Court agreed that the legislation was detrimental to a particular racial group - the Indigenous people of the area. The majority found that the Parliament had the constitutional power to pass the legislation, through the race power, although their Honours' reasons differed. The only judge who found unequivocally that the race power did not support laws that discriminated against particular racial groups was Kirby J. In so finding His Honour had regard to international law of which he said: 'If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race.'

 

3. Heritage Protection

Summary of Issue

  • The religious and cultural practices of Indigenous people are inextricably linked to land and water.
  • Legislative regimes that address the preservation of Indigenous religious, cultural and ancestral areas and objects exist at the Commonwealth, state and territory tiers of government. [11]
  • The Commonwealth act is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSI HP Act). The Act was passed as 'an interim measure' to be replaced by more comprehensive legislation after two years. [12]
  • That legislation has not been enacted. There is no uniformity between different state and territory laws. Legislation in a number of states is incompatible and inadequate. [13] The role of the Commonwealth through the ATSI HP Act has been essential in:

    - directly providing heritage protection where state and territory heritage protection regimes have failed Indigenous people; and

    - acting as a deterrent to states and territories ignoring their responsibilities under their own cultural heritage protection schemes.

  • In November 1999, the government introduced the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (the Bill) into the Senate. The Bill was intended to replace the ATSI HP Act.
  • The Bill fails to provide sufficient reform to protect heritage. state and territory legislation remains the primary source of heritage legislation, subject to accreditation by the Commonwealth. The standard for accreditation is inadequate. Indigenous people must exhaust all remedies at this level, however, before accessing the Commonwealth scheme. The Commonwealth will intervene only in the case of matters that affect the 'national interest'.
  • Major changes to the Bill are required, including reform of state and territory standards of accreditation and increased Commonwealth role in protection and preservation. In 1995/6, the Australian government commissioned a review of legislative protections for sites of religious, cultural and ancestral significance.
  • Extensive reforms were suggested, and widely supported by Indigenous groups. The recommendations included more rigorous uniform minimum standards for state and territory schemes, extensive revision of administration at Commonwealth level.
  • Where a state or territory legislative scheme was accredited under the Commonwealth legislation, the role of the Commonwealth would be maintained so that Indigenous people could seek heritage protection from the Commonwealth as a 'last resort'. Access to Commonwealth heritage protection would be improved where a state or territory failed to achieve accreditation.
  • The reforms have not been implemented. Protection remains inadequate and sites remain vulnerable to desecration and destruction.

Relevance to the ICCPR

  • Article 27: Rights of minorities;
  • Article 18: Freedom of thought, conscience and religion;
  • Article 17 and 23: Privacy and family; and
  • Articles 2 and 26: Non-discrimination and equality.

Article 27: Rights of minorities, including protection of cultural, religious and ancestral sites, and languages.

  • Australian law does not provide sufficient protection to Aboriginal heritage sites as is required under Article 27. Australian law should guarantee effective Indigenous representation in resource heritage committees.
  • Indigenous cultural and religious practices such as ceremonies, ritual maintenance of sites and cultural gatherings are always linked to geographical sites of significance. Economic development activities may result in damage to or interference with these sites or objects, and protective mechanisms are required to secure the rights to religious and cultural practices recognised in Articles 18 and 27 of the ICCPR.

Article 18: Freedom of thought, conscience and religion

  • The destruction of sites of religious significance for the purposes of economic development is not authorised under Article 18(3). Economic development activities can rarely if ever be characterised as a 'fundamental right or freedom' of another. The failure to protect customary religious laws regarding secrecy is also inconsistent with Article 18.

Articles 2 and 26: Non-discrimination and equality

  • Where institutional protection of heritage sites and objects is inadequate, and the rights of non-Indigenous interests in development are preferred over Indigenous rights to culture and religion, Articles 2 and 26 are contravened.

Articles 17 and 23: Privacy and family

  • Failure to protect cultural heritage may violate a people's right to privacy under Article 17 as well as their family rights under Article 23. In Hopu and Bessert v France (549/93), the authors alleged that a hotel development on the sacred burial grounds of their ancestors breached, inter alia, their rights to privacy. The HRC majority agreed, as the authors' relationship with their ancestors constituted an important part of their identity.

Relevance to the ICESCR

  • Articles 1 and 2.1: Self-determination and progressive realisation of rights;
  • Article 2.2: Providing for rights to be enjoyed on a non-discriminatory basis; and
  • Article 15: Cultural rights.

Articles 1 and 2.1: Self-determination and progressive realisation of rights

  • Article 1 of ICESCR requires States to protect the rights of Indigenous people to pursue their economic, social and cultural development. Article 2.1 of ICESCR requires the State to take steps to progressively achieve full realisation of the rights recognised by the Covenant. Failure to protect cultural heritage and traditional economies results in insufficient compliance with this Article.

Article 2.2: Providing for the rights to be enjoyed on a non-discriminatory basis

  • Article 2.2 of ICESCR requires that the rights of the Covenant be enjoyed on a non-discriminatory basis. Inadequate protection of Indigenous heritage results in the preference of non-Indigenous interests over Indigenous. This is clear in regard to the Mirrar people at Jabiluka and delays over protection of the Boobera lagoon, a site of acknowledged importance to the Aboriginal people of rural northern New South Wales.

Article 15: Cultural rights

  • The rights of Indigenous people to participate in cultural life are not sufficiently protected or fully realised by current Australian law. Indigenous participation in cultural life requires protection of land, and protection of the relationship enjoyed by Indigenous people to specific culturally important sites. The survival of Indigenous peoples as distinct societies also depends on maintenance of their cultures and languages.
  • Protection of Indigenous cultural and intellectual property is not sufficiently developed to provide Indigenous authors with benefits from protection of moral and material interests of scientific, literary or artistic production. Indigenous intellectual property is characterised by particular attributes. For example, ownership exists generally in perpetuity, rather than for a defined period and the rights are generally held collectively rather than individually. Australian intellectual property law grants rights based on certain criteria. These criteria operate to exclude or inadequately protect material with these characteristics. [14]

4. Indigenous Disadvantage and Special Measures

Summary of Issue

  • Indigenous people in Australia suffer grossly disproportionate rates of disadvantage against all measures of socio-economic status.
  • State, territory and federal governments have introduced programs and seek to identify further methods for redressing this disadvantage.
  • The federal government launched an Indigenous Employment Program in May 1999. The program has three elements - a wage assistance and cadetship program; an Indigenous Small Business Fund; and Job Network.
  • The House of Representatives Standing Committee on Family and Community Affairs has recently concluded a wide-ranging inquiry into Indigenous health, the report of which is titled Health is life.
  • The Senate Employment, Workplace Relations, Small Business and Education Committee also concluded an inquiry into Indigenous education. - The 1999 Queensland Aboriginal and Torres Strait Islander women's task force on violence report (the 'Robertson report') pointed out that Indigenous Australians face enormous problems in health, education and employment, all of which exacerbate the high levels of domestic violence experienced by Indigenous communities. The Commonwealth government has acknowledged the high level of family violence in Indigenous communities as a special area of work under its Partnerships against domestic violence initiative, and has allocated $6 million for national measures to address this issue. [15]
  • The Commonwealth Grants Commission has been empowered to undertake an independent assessment of the relative need of Indigenous Australians for services and programs. [16]
  • The Council for Aboriginal Reconciliation has developed four national strategies for reconciliation, which were presented to the federal Parliament in December 2000.
  • Determining whether government and other initiatives in fact constitute an adequate response to Indigenous disadvantage is a difficult task.
  • A recent study of Commonwealth and state/territory expenditure on education, health, housing and employment programs found that while Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, larger, general programs. [17]
  • The study found that, in comparison to the levels of disadvantage experienced, the government funding and programs aimed at redressing Indigenous disadvantage are clearly not sufficient to raise Indigenous people to a position of equality within Australian society. The level of current government expenditure on health, housing, employment and education is not excessive.
  • Health is life found that 'the planning and delivery of health services for Indigenous Australians is characterized by a general lack of direction and poor coordination,' [18] and recommended that the Commonwealth accept responsibility for developing, in collaboration with the states and territories, an efficient, coordinated and effective mechanism for the delivery of services and programs which impact on the health and well-being of the Indigenous population (Recommendation 1).
  • The report of the Inquiry into Indigenous education, Katu kalpa, noted that 'equity for Indigenous people in most educational sectors had not been achieved' [19] and identifies raising literacy and numeracy skills of Indigenous people to the level of non-Indigenous people as 'an urgent national priority'. [20]
  • Key reports which make recommendations for redressing Indigenous disadvantage, including the Royal Commission into Aboriginal Deaths in Custody, and Bringing them home, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, have not been fully implemented or have even been actively rejected.
  • The Social Justice Package, the third component of the government's response to the Mabo decision (alongside the Native Title Act and the National Aboriginal and Torres Strait Islander Land Fund), which contained measures to redress Indigenous disadvantage, has been abandoned.
  • There is little understanding within Australian society of the requirement and legitimacy of special measures, and greater education is required to address this deficit.

Relevance to CERD

  • Articles 1, 2 and 5: Lack of equality within Australian society; and - Articles 1(4), 2(2) and 7: Requirement to adopt special measures, and the duty to promote understanding of the legitimacy of adopting such measures.

Articles 1, 2 and 5: Lack of equality within Australian society

  • The level of Indigenous disadvantage raises concerns in relation to Australia's obligations under Articles 1, 2, and 5 of the Convention.

Articles 1(4), 2(2) and 7: Requirement to adopt special measures, and the duty under Article 7 to promote understanding of the legitimacy of adopting such measures

  • Australia should take special measures to ensure the adequate development and protection of Indigenous people for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. Article 7 requires the government to promote an understanding of the legitimacy of adopting special measures to redress disadvantage.

Relevance to the ICCPR

  • Articles 2 and 26: Equality and special measures; and
  • Article 24: Rights of the child.

Articles 2 and 26: Equality and special measures

  • In General Comment 18, at paragraph 10, the HRC has supported the exercise of special measures as an essential aspect of the Covenant's non-discrimination provisions, as 'the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination'. In a State 'where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.' This is one of the core obligations undertaken by States parties under Articles 2 and 26 of the ICCPR.
  • The systemic and grossly disproportionate rate of disadvantage faced by Indigenous people requires that Australia take special measures to ensure the adequate development and protection of Indigenous people, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.

Article 24: Rights of the Child

  • The 'protection' and 'non-discrimination' requirements of Article 24 indicate that the Commonwealth government must ensure that appropriate programmes are established to combat the socio-economic disadvantages of Indigenous youth. [21]

Relevance to ICESCR

  • Article 6: The right to work;
  • Article 11: An adequate standard of living including adequate food clothing and housing;
  • Article 12: The right to enjoy the highest attainable standard of physical and mental health; and
  • Article 13: The right of everyone to an education.

Article 6: The right to work

  • Employment: Public expenditures on programs for the unemployed are 48% higher per unemployed Indigenous person than per non-Indigenous unemployed person. Higher levels of long-term unemployment and higher average costs of employment programs for Indigenous people explain part of this difference, as well as the reliance upon Community Development Employment Projects (CDEP). The level of disadvantage faced by Indigenous people, the difficulties of maintaining employment levels for the rapidly expanding Indigenous population entering working age and the multiple objectives of the CDEP suggest that the margin 'is not excessive'. [22]

Article 11: An adequate standard of living including adequate food clothing and housing

  • Housing: Housing benefits expressed on a per capita basis indicate that non-Indigenous people receive between 9 and 21 per cent more benefits than Indigenous people. Given the greater housing needs of Indigenous people, existing policies are 'inequitable and inadequate' and this justifies 'increased resources being put into programs directed specifically towards addressing their housing needs.' [23]

Article 12: The right to enjoy the highest attainable standard of physical and mental health

  • Health: Total funding per head, which includes privately and publicly funded health care, is 8% higher for Indigenous people. [24] Given the health status of Indigenous people, 'allocation of public expenditure according to need would almost certainly put more resources into health services for Indigenous people.' [25]

Article 13: The right of everyone to an education

  • Education: Public expenditure on education is 18% higher per capita for Indigenous people than for non-Indigenous in the 3-24 year age group. Equity considerations require that there be additional expenditure on the education of Indigenous Australians, and this difference per head is a 'very modest contribution' to reducing Indigenous disadvantage. [26]

5. Self-determination

Summary of Issue

  • Government policy does not acknowledge the applicability of the right to self-determination to Indigenous people. [27] In November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs announced that the government's Indigenous affairs policy would no longer be based on the principle of self-determination but on the concept of 'self-empowerment', which has no meaning in international law.
  • The Royal Commission into Aboriginal Deaths in Custody prescribed self-determination as being necessary for Aboriginal and Torres Strait Islander peoples to overcome their previous and continuing, institutionalised disadvantage and domination. [28]
  • In Bringing them home, the Human Rights and Equal Opportunity Commission also recommended self-determination be implemented in relation to the well-being of Indigenous children and young people through the passage of national framework and standards legislation. [29] The Commonwealth government has failed to implement these proposals. [30]
  • ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation undertook broad consultations regarding the development of the Social Justice Package, presenting strategies and proposals to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, for the implementation of self-determination as the basis of government policy and for governments to redress Indigenous disadvantage as a right and not out of welfare. In 1996, the newly elected government abandoned the Social Justice Package.
  • On 17 March 2000, the Prime Minister again rejected a call for self-determination for Aboriginal peoples presented by the wording in the Draft Declaration of Reconciliation, prepared by the Council for Aboriginal Reconciliation.

Relevance to ICERD

General Recommendation XXI on self-determination; and General Recommendation XXIII on Indigenous peoples

  • The government's failure to fully implement, and in some cases its rejection of, the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, and the abandonment of the Social Justice Package, are inconsistent with the Committee's General Recommendation XXI on self-determination. Relevance to the ICCPR Article 1: Self-determination
  • The government's abandonment, and in some cases rejection, of the principle of self-determination in guiding Indigenous policy constitutes a breach of Article 1 of the ICCPR. - The failure to acknowledge the application of the principle of self-determination to Indigenous peoples also breaches Australia's obligations under Article 1(3) of the Convention to promote the realization of the right to self-determination.

Relevance to ICESCR

Article 1: Self-determination

  • The HRC has recognised the relevance of the right to self-determination to Indigenous peoples in its Concluding Comments on Australia dated 28 July 2000:

    With respect to Article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term 'self-determination' the Government of the State party prefers terms such as 'self-management' and 'self-empowerment' to express domestically the principle of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard.

    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 resources (Article 1, para 2).

  • Likewise, the government's failure to acknowledge the application of the principle of self-determination to Indigenous peoples constitutes a breach of Article 1 of ICESCR, including its obligations under Article 1(3) of the Convention to promote the realization of the right to self-determination.

6. Indigenous People in Custody

Summary of Issue

  • The Indigenous prisoner population has more than doubled since 1988, and has increased by an average of 6.9% per year for the past decade. This is 1.7 times the average annual growth of the non-Indigenous prison population.
  • Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory and 34% of all prisoners in Western Australia were Indigenous. - The rate of imprisonment for Indigenous people in the June 1999 quarter was 21.7 times the non-Indigenous rate in Western Australia. The rate in other states and territories is also unacceptably high - 15.7 times in South Australia; 12.2 times in Victoria; 11.3 times in Queensland; 9.9 times in the Northern Territory and 5.1 times in Tasmania. [31]
  • 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.

Relevance to CERD

  • General Recommendation XXI: Self-determination; and
  • Articles 2 and 5: Non-discrimination and equality.

General Recommendation XXI: Self-determination

  • The Royal Commission into Aboriginal Deaths in Custody prescribed self-determination as being necessary for Aboriginal and Torres Strait Islander peoples to overcome their previous and continuing, institutionalised disadvantage and domination.
  • 'The thrust of this report is that the elimination of disadvantage requires an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands.' [32]

Articles 2 and 5: Non-discrimination and equality

  • The Royal Commission report highlighted the inequality that exists between Indigenous and non-Indigenous peoples in Australia in relation to every major socio-economic indicator.
  • The continuing over-representation of Indigenous prisoners in Australian gaols and the high levels of Indigenous deaths in custody indicate that the underlying causes of Indigenous disadvantage have not been addressed since the publication of the Commission Report in 1991.

Relevance to the ICCPR

  • Articles 2 and 26: Non-discrimination and equality; and
  • Article 6: Right to life.

Articles 2 and 26: Non-discrimination and equality before the law

  • The Royal Commission report identified reducing Indigenous inequality and redressing disadvantage as crucial to reducing the rate of incarceration of Indigenous people. [33]
  • In its Concluding Observations on Australia in March 2000, the Committee on the Elimination of Racial Discrimination recommended, at paragraph 15:

    ... that the State party increase its efforts to seek effective measures to address the socio-economic marginalization, the discriminatory approach to law enforcement, and the lack of sufficient diversionary programmes.

Article 6: Right to life

  • States parties are required to take adequate steps to protect the life of prisoners, as required by Article 6 (1) of the Covenant. [34]
  • Australian governments should take greater measures to combat Indigenous over-representation in prisons and to ensure that all recommendations of the Royal Commission into Aboriginal Deaths in Custody are fully implemented to ensure the highest level of protection of the lives of prisoners in State custody.

Relevance to ICESCR

  • Article 1: Self-determination; and
  • Article 2: Non-discrimination.
  • No levels of government have responded adequately to the recommendations of the Royal Commission into Aboriginal Deaths in Custody, or to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. [35] These reports make numerous recommendations aimed to redress the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems.
  • 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. 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, are generally understood to impact disproportionately on Indigenous Australians.

7. Mandatory Sentencing

Summary of Issue

  • Mandatory sentencing laws were enacted in Western Australia and the Northern Territory in 1996 and 1997 respectively, for juvenile and adult offenders. These laws require that offenders automatically go to jail for minimum prescribed periods for particular offences.
  • Case studies of the impact of the laws demonstrate their arbitrary and discriminatory nature.
  • Mandatory sentencing laws target particular property offences generally committed by people of lower socio-economic backgrounds. They are discriminatory in effect against Indigenous people in particular.
  • The overriding aim of mandatory sentencing laws is incapacitation rather than rehabilitation. They do not have regard to the circumstances of juvenile offenders.
  • Mandatory sentencing laws breach several provisions of the Convention on the Rights of the Child, and in some circumstances can result in harsher treatment for juveniles than adults who commit the same crime. There are alternatives to mandatory sentencing that are consistent with Australia's obligations under the Convention.
  • The federal government has constitutional power to override mandatory sentencing laws but has explicitly chosen not to do so, in breach of its obligations under Article 50.

Relevance to the CERD

  • - Australia's failure to protect human rights in areas within state or territory jurisdiction was cited by CERD as a cause for concern in its Concluding Comments on Australia in 1994. [36]
  • In its concluding observations on Australia of March 2000, the CERD expressed the view that:

    ... the Commonwealth Government undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with Article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws. [37]

Relevance to ICCPR

  • Article 9: Liberty and security;
  • Article 10: Rehabilitation;
  • Article 14: Juvenile offenders and right to appeal a sentence;
  • Article 24: Rights of the child;
  • Articles 2 and 26: Non-discrimination and equality; and
  • Article 50: Federal obligation to ensure compliance with obligations.

Article 9: Liberty and Security

  • Article 9(1) of the ICCPR provides that '[n]o one shall be subject to arbitrary arrest or detention'. The term 'arbitrary' includes not only actions that are unlawful per se but also those that are unjust or unreasonable. [38]
  • Decisions of the HRC indicate that detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights. [39] Mandatory sentencing clearly breaches Article 9(1) as it is imposed for the most trivial of offences. [40] The punishment of imprisonment in many cases simply does not fit the crime.

Article 10: Rehabilitation

  • Mandatory sentencing regimes in Western Australia and the Northern Territory raise concerns under Article 10(3) of the Convention. Article 10(3) states, inter alia, that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. - Incarceration is generally accepted as being ineffective in promoting rehabilitation. [41]
  • The HRC has referred to Article 10(3) in its Concluding Comments on Belgium:

    19 Bearing in mind that pursuant to Article 10, paragraph 3, of the Covenant, the essential aim of incarceration should be the reformation and social rehabilitation of offenders, the Committee urges the State party to develop rehabilitation programs both for the time during imprisonment and for the period after release, when ex-offenders must be reintegrated into society if they are not to become recidivists.

Article 14(4): Age and rehabilitation of juvenile offenders

  • Article 14(4) 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. Mandatory sentencing breaches Article 14(4) for the reasons cited above regarding Article 10(3).

Article 14(5): Right to appeal a sentence

  • Article 14(5) 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.' [43]
  • The mandatory detention laws in the Northern Territory and Western Australia do not allow for a right of appeal against the sentence, if the sentence should equate with the minimum permitted, and is therefore in breach of the ICCPR.
  • The agreement between the Commonwealth government and the Northern Territory government for the diversion of juveniles from custody provides that police in the Northern Territory will have discretion to divert juveniles at the pre-charge stage. This agreement does not confer any greater discretion upon the courts; rather, discretion is vested in police officers to decide whether to pursue a matter through the courts, in which case mandatory sentencing will apply, or through diversionary programs.

Article 24: Rights of the Child

  • 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. [44]
  • 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. [45]
  • 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.

Articles 2 and 26: Equality and non-discrimination

  • Where a pattern of sentencing reveals that certain groups are more likely to receive the harshest penalties, sentencing is discriminatory. [46]
  • 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.[47] Indigenous peoples do not commonly commit the latter type of 'white collar' crimes.
  • Indirect discrimination is prohibited under Articles 2(1) and 26 of the Covenant. [48]
  • Programs that provide support for people at risk of offending are the most successful in preventing crime. Early intervention and social support programs are essential as a means of protecting against later offending. Such provisions are compatible with and are even required by CROC and Article 24 of the ICCPR.

Article 50: Federal obligation to ensure compliance with obligations

  • Under section 51(xxix) of the Constitution, the external affairs power, the Commonwealth has undoubted power to implement its international treaty obligations, including the ICCPR, and is accountable for failures of the states and territories to comply with these obligations. Accordingly, the federal government has power to override mandatory sentencing laws in Western Australia and the Northern Territory.
  • In 1999, a private members bill seeking to override mandatory sentencing laws in relation to juvenile offenders (Human Rights (Mandatory sentencing of Juvenile Offenders) Bill 1999) was introduced to the Australian Senate. The bill passed through the upper house in March 2000. The bill has not been considered by the lower house of Parliament, and consequently has not been introduced.

Relevance to the ICESCR

Article 2: Non-discrimination, special measures and progressive realization of rights

  • There is a link between the involvement of young Indigenous people in the criminal justice system and the failure of the State to meet its obligations to redress the inequality and disadvantage faced by Indigenous youth. A response by the State that mandates detention - with no regard to the offender's circumstances - thus is retrogressive and does not meet Australia's obligations under Article 2 of the Covenant to realize progressively the economic, social and cultural rights of Indigenous Australians.

8. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and Their Families, Bringing Them Home

Summary of Issue

  • The Human Rights and Equal Opportunity Commission conducted an inquiry into the forcible removal of Aboriginal and Torres Strait Islander Children from their families. The report, Bringing them home, was released in May 1997.
  • The report identified that:

     

    • Forcible removal policies saw the removal of between 1 in 3 and 1 in 10 Indigenous children, in the period 1910 to 1970;
    • The effects of such removal were, for most victims, negative, multiple and profoundly disabling;
    • Removal laws were racially discriminatory, and genocidal in intent; - For many children removed there were breaches of fiduciary duty and duty of care, as well as criminal actions.
  • The report adopted the van Boven principles for reparation for gross violations of human rights as the basis of recommendations for addressing the harm caused.
  • The report also considered contemporary forms of separation, and recommended the introduction of national standards and framework legislation incorporating international human rights standards for the treatment of Indigenous children.
  • The government responded to the report in 1997 with a $43 million package. - The government has rejected recommendations for compensation and other forms of reparation.
  • In April 2000, the government made a submission to the Senate Legal and Constitutional References Committee inquiry into the stolen generation. The government submission rejected further recommendations of the report. It claimed that:

     

    • There is no 'stolen generation': the forcible removal of children did not amount to a gross violation of human rights and was not genocidal;
    • The number of people forcibly removed was significantly less than Bringing them home had suggested;
    • The methodology of the report was flawed;
    • There is no basis for making reparations, including monetary compensation; and
    • The van Boven principles are not binding in international law.
  • The Commission has noted that the government's reasoning is flawed as it does not acknowledge that:

     

    • the van Boven principles are a synthesis of international law and practice, which incorporate obligations across a range of international instruments; - racial discrimination and genocide were 'standards of the day' against which forcible removal policies should be evaluated;
    • the definition of genocide in the Genocide Convention extends to situations where there are mixed motives, some of which may be perceived as beneficial, and where there is not physical killing, and without the complete destruction of the group; and
    • forcible removal policies were racially discriminatory.
  • The government's suggestion that the payment of monetary compensation is problematic reflects a lack of political will rather than any true impediment.

Relevance to the CERD

  • Articles 2 and 5: Non-discrimination and equality; and
  • General Recommendations XXI and XXIII: Self determination and Indigenous peoples.

Articles 2 and 5

  • There remains an obligation to redress this past discrimination and to provide effective remedy through competent authorities for any person whose rights or freedoms have been violated. The Commonwealth Government rejected the proposal for reparations or monetary compensation, and has adopted a 'watching brief' in respect of ongoing litigation. [49]
  • Additionally, despite Australia being a signatory to the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, successive governments have not enshrined this law domestically. Bringing them home recommended that the Commonwealth Government legislate to implement the Genocide Convention with full domestic effect as part of official recognition that removal policies of the past are over and will not be repeated. In response, the Commonwealth Government claimed that no genocide occurred in Australia, so therefore there was no need to implement the Convention. [50]
  • In October 1999, the Senate referred an Anti-Genocide Bill put forward by the Australian Democrats to the Legal and Constitutional References Committee for investigation and review by June 2000. [51]

General Recommendations XXI and XXIII

  • Bringing them home recommended that self-determination be implemented in relation to the well-being of Indigenous children and young people through national framework legislation for juvenile justice and care and protection systems. The Commonwealth Government actively rejected these recommendations. [52]

Relevance to ICESCR

  • Article 1: Self-determination; - Article 2: Non-discrimination; and - Article 11: The right to adequate housing. - Bringing them home made it clear that the policies and practices underlying the removal of Aboriginal children from their families were discriminatory. In addition, the profound problems suffered by Indigenous people and communities are ongoing, and a failure to address those problems and to implement the recommendations of the Report impact on the present and future generations of Indigenous people.
  • Bringing them home recommended self-determination for Indigenous children and young people be implemented through national framework legislation for juvenile justice and care and protection systems. The Commonwealth Government actively rejected these recommendations.
  • The past widespread practice of unjustifiable forced removal of Indigenous children from their families, and the present situation where the Government refuses to acknowledge this history through an apology and through the possibility of providing compensation, raises issues of compliance with Australia's obligations under the Covenant, in particular in respect of Article 1, self-determination, and Article 2, non-discrimination.
  • Article 11, the right to adequate housing is also relevant. The removal of Indigenous children, and the ongoing failure to provide an adequate response, would appear to be a violation of the sanctity and privacy of the family.

9. The Abolition of Bilingual Education Programs in the Northern Territory

Summary of Issue

  • In December 1998 the Northern Territory Government announced that it was phasing out bilingual education programs in government schools in Aboriginal communities, and replacing them with 'English as a Second Language' programs because of the low standards of English literacy among Aboriginal students.
  • Many Aboriginal communities who currently have bilingual education programs have stated that the decision of the Northern Territory Government was made without appropriate consultation or a genuine desire to address the systemic issues underlying the vastly disproportionate rate of Aboriginal students' participation in education.
  • The integration of Aboriginal languages into the formal education system through bilingual programs makes schooling more accessible to Aboriginal students, and also values Aboriginal educators and knowledge.
  • Aboriginal communities state that the success of the education of their children should be measured not only by standards of English literacy, but also by respect for their rights to education, language, culture and land.

Relevance to CERD

Article 5: Non-discrimination

  • Bilingual education programs recognise cultural difference in a manner that is non-discriminatory in international law.
  • The CERD has recognized that measures that seek to protect the culture and identity of Indigenous peoples may constitute a legitimate, non-discriminatory differentiation of treatment, and fall within Article 5 of the Convention. The Committee has called upon States parties in particular to:

     

    • a. recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation; ... [and]
    • d. ensure that members of Indigenous groups have equal rights in respect of effective participation ... and that no decisions directly relating to their rights and interests are taken without their informed consent;
    • e. ensure that Indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. [53]

Relevance to ICESCR

Article 1: Self-determination

- The lack of appropriate Indigenous participation in the Northern Territory decision to abandon bilingual education also breaches Australia's obligations to respect the self-determination rights of its Indigenous peoples under Article 1. For many Indigenous people, this announcement was an example of ongoing attempts to undermine their right to control their own lives, by denying the choice of mode of education for their children and threatening the viability of remaining languages. It is also inconsistent with the consistently expressed desires of Indigenous people in the Northern Territory for greater community control over educational processes. [54]

10. Interpreter Services in Aboriginal Languages in the Northern Territory

Summary of Issue

  • There has been significant concern expressed by Indigenous people in the Northern Territory at the lack of availability of interpreter services in Aboriginal languages for services, especially health and legal services.
  • In response, 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 of inquiry into the lack of interpreter services. [55]
  • 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 which exist, which inhibits communication between themselves and service providers, resulting in extreme difficulties and problems causing 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, as well as 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.
    • In relation to legal services it is important to recall that the Royal Commission into Aboriginal Deaths in Custody recommended (recommendation 99) that legislation in all jurisdiction 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 report also concluded that the failure to provide interpreter services was in breach of the Northern Territory Anti-Discrimination Act 1992 and the federal Racial Discrimination Act 1975. The Commissioner particularly expressed concern that both acts contain special measures provisions that could be used overcome this particular disadvantage faced by Aboriginal people. [56]

Relevance to the CERD

  • Articles 1(4), 2 and 5 of CERD are also breached by the lack of interpreter services.
  • The Northern Territory government is opposed to establishing an interpreter service, and the Commonwealth government sees the provision of this service as an internal matter for the Northern Territory.

Relevance to the ICCPR

  • The report also concluded that the failure to provide interpreter services contravenes Australia's obligations under the ICCPR. In particular, it is in breach of the following provisions:
    • Articles 9(2): 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): 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
    • Article 26: Equality before the law.

 

1. The Committee on the Elimination of Racial Discrimination (the CERD) has observed that the amended Act appears to create legal certainty for governments and third parties at the expense of native title holders. They also noted that the process by which the NTA amendments of 1998 were enacted did not involve the informed consent of Indigenous people or their representatives, nor were the amendments acceptable to the Indigenous people whose rights are directly affected by them. Committee on the Elimination of Racial Discrimination, On Australia, paragraphs 6 & 9. 18 March 1999, UN Doc CERD/C/54/Misc.40/Rev.2.

2. Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, HREOC, Sydney, 1999, p. 105. The HRC has confirmed that different rights for vulnerable and disadvantaged groups are permissible under the ICCPR at paragraph 10 of General Comment 18.

3. HRC, General Comment 23 at paragraphs 3.2 and 7.

4. Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p. 62.

5. See L nsman v Finland (511/92).

6. See HRC definition of discrimination in General Comment 18 at paragraph 7.

7. Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p114.

8. The preamble to the Racial Discrimination Act 1975 (Cth) states that the purpose of the Act is 'to make provision for giving effect to the Convention' (ie CERD).

9. The amendments were passed on 8 July 1998 and most came into effect from 30 September 1998.

10. See for example the 1990 case of Chief Ominayak v Canada UN Doc. A/47/40 (1992)

11. See generally, Australian Government Report, CCPR/C/AUS/98/3, pp. 271-276.

12. 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

13. 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

14. Additional material can be obtained from Janke, T., Our culture, our future: Report on Australian Indigenous cultural and intellectual property at http://www.icip.lawnet.com.au.

15. Senator Jocelyn Newman, Launch of new partnerships against domestic violence initiatives, Speech 7 October 1999, http://www.dpmc.gov.au

16. See further: Commonwealth Grants Commission Amendment Bill 1999, Explanatory Memorandum, Parliament of Australia, Canberra, 1999.

17. Neutze, M., Sanders, W., Jones, G., Public expenditure on services for Indigenous people - Education, employment, health and housing, Discussion Paper 24, The Australia Institute, Canberra, 1999, p xiii.

18. HRSCFCA, op cit, p1.

19. Senate Employment, Workplace Relations, Small Business and Education References Committee, Katu kulpa, Report on the inquiry into the effectiveness of education and training programs for Indigenous Australians, Parliament of Australia, Canberra, March 2000, pxi. The report is available on the internet at: http://www.aph.gov.au/senate/committee/eet_ctte/indiged/index.htm.

20. ibid, Recommendation 1.

21. See also General Comment 17, paras 3 & 5.

22. Neutze, M., Sanders, W., Jones, G., op cit, pp28-29.

23. ibid, pp55-56.

24. Deeble, J., Mathers, C., Smith, L., Goss, J., Webb, R. and Smith, V., Expenditures on health services for Aboriginal and Torres Strait Islander people, Australian Institute of Health and Welfare, Canberra, 1998.

25. Neutze, M, Sanders, W., Jones, G, op.cit, p38.

26. ibid, pp16-17.

27. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, HREOC, Sydney, 2000, pp. 19-20.

28. Royal Commission into Aboriginal Deaths in Custody, National report, Volume 1, para 1.7.6.

29. Human Rights and Equal Opportunity Commission, Bringing them home, HREOC, Sydney, 1997, Recommendations 42, 43-53.

30. For further details see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1998, HREOC, Sydney, 1998. Chapter 4. Available online at: https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice

31. Adequate statistics do not exist for New South Wales.

32. Royal Commission into Aboriginal Deaths in Custody, op cit, Volume 1, para 1.7.6.

33. Australian Bureau of Statistics and Centre for Aboriginal Economic Policy Research, National Aboriginal and Torres Strait Islander survey: Employment outcomes for Indigenous Australians, p86. See also the discussion of this issue in the introductory chapter and Hunter, B. and Borland, J, 'The effect of arrest on Indigenous employment prospects' (1999) 45 Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research.

34. Dermit Barbato v Uruguay (84/81).

35. One of the terms of reference required the inquiry to examine contemporary forms of separation, such as contact with juvenile justice and the care and protection systems.

36. Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, 19 April 1994, UN Doc A/49/18, para 542.

37. Un Doc: CERD/C/56/Misc.42/Rev.3, 24 March 2000, paragraph 7.

38. Documentary references and a summary of these debates are given in M Bossuyt, Guide to the travaux preparatoires of the international covenant on civil and political rights (Martinus Nijhoff, Dordrecht, 1987), p343.

39. See Van Alphen v The Netherlands (305/88), paragraph 5.8; A v Australia (560/93), paragraph 9.2.

40. See S. Joseph, J. Schultz, M. Castan, The international covenant on civil and political rights (OUP, Oxford, 2000), forthcoming publication.

41. There is also evidence that mandatory detention is of limited effect as a deterrence mechanism. See further: L. Schetzer, op.cit., pp119-120; G. Zdenkowski, 'Mandatory imprisonment of property offenders in the Northern Territory' (1999) 22(1) University of New South Wales Law Journal 302 at pp302-303; R. Hogg, 'Mandatory sentencing laws and the symbolic politics of law and order' (1999) 22(1) University of New South Wales Law Journal 262; N. Morgan, 'Capturing crims or capturing votes? The aims and effects of mandatories' (1999) 22(1) University of New South Wales Law Journal 267, pp268-269.

42. (1998) UN doc. CCPR/C/79/Add. 99. See also Madame Chanet in Hankle v Jamaica (710/96)

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

44. HRC, General Comment 17, at paragraph 1.

45. 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.

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

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

48. See HRC, General Comment 18, paragraph 7.

49. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Bringing them home, op cit, pp. 116-119, pp. 163-164.

50. See Aboriginal and Torres Strait Islander Social Justice Commissioner, ibid, pp. 139-140, p. 164.

51. The terms of reference can be found at http://www.aph.gov.au/senate/committee/advert/Antigenocide.htm

52. See Aboriginal and Torres Strait Islander Social Justice Commissioner, op.cit, pp. 109-110, p. 167

53. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII - Peoples, UN Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997, para 3.

54. There has been government recognition of the benefits of increased community involvement and control in redressing Indigenous disadvantage: For example, the Desert schools report: An investigation of English language and literacy among young Aboriginal people in seven communities, AIATSIS, Canberra, 1996, was a Commonwealth-funded extensive study, of which principal recommendations focused on strengthening the involvement of communities in the education process.

55. 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.

56. ibid, pp8-11.