International Review of Indigenous issues in 2000: Australia - 5. Failure to provide adequate protection of Indigenous Rights

International Review of Indigenous issues in 2000: Australia

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5. Failure to provide adequate
protection of Indigenous Rights

Failure
to implement the Genocide Convention

Education and the abolition of Bilingual Education
Programs in the Northern Territory

Redressing Indigenous disadvantage

Failure to implement
the Genocide Convention

While Australia is
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.

In October 1999,
the Senate referred an Anti-Genocide Bill put forward by the Australian
Democrats Party to the Legal and Constitutional References Committee for
investigation and review by June 2000. [106] On 3 April
2001 both the major parties voted down a proposal by the Australian Democrats
Party to debate an Antigenocide Bill aimed at, amongst other things deterring
crimes against humanity.

Education and the abolition
of Bi-lingual education in the Northern Territory

The rate of Aboriginal
students' participation in education is vastly disproportionate to non-Indigenous
students.

A significant number
of Indigenous students do not complete the compulsory years of schooling.[107]
In 1994 over one-third of Indigenous 15 to 24 year olds had not completed
Year 10. [108] The school retention rate to Year 12
for Indigenous students is around 33% compared to almost 73% for all students.
[109] The level of Aboriginal students' participation
in education in rural and remote locations is even less. [110]
Further, attendance by those enrolled is also low, sometimes falling to
an estimated 20% attendance (for example, during ceremony times). [111]

In addition, 43%
of Indigenous primary school students in rural and remote locations have
significantly lower literacy and numeracy achievement.[112]
In 1996 a Northern Territory Public Accounts Committee found that students
in remote Aboriginal schools perform 3 to 7 years behind urban students
of the same age in literacy and numeracy tests.

The poor performance
of Aboriginal students from remote Aboriginal Schools in literacy and
numeracy tests may well be attributable to English being a second language
for many of them. In the 1996 Census, it was found that as a proportion
of the total population aged five years and over, the Northern Territory
recorded the highest percentage of people speaking a language other than
English at home (22.5%). Over 70% of those people spoke an Indigenous
language. Up to one-third of Indigenous students living in rural and remote
Australia speak a language other than English as their first language.

Despite this, Aboriginal
students are not recognised by the Commonwealth as requiring ESL funding
and support. Furthermore, the Northern Territory government announced
in December 1998 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.

The right to education
on a basis of equality is a right guaranteed by international law:

• Article 28 of
  the Convention on the Rights of the Child (CROC) provides for state
  parties to recognise the right of the child to education, with a view
  to achieving this right on the basis of equal opportunity
  
• The International
  Convention on the Elimination of All Forms of Racial Discrimination
  (the ICERD) provides that education shall be available to all without
  discrimination on the basis of race [Articles 1(1) & 5(1)(e)(v)]
  
• Article 26 of
  the Convention concerning Indigenous and Tribal Peoples in Independent
  Countries (ILO 69) requires states to take measures to ensure equality
  of opportunity to members of Indigenous peoples to acquire education
  
  
  
  

International law
further requires that states ensure that Indigenous communities can exercise
their rights to practice and revitalize their cultural traditions and
customs and to preserve and practice their languages:

• CERD Committee,
  General Recommendation XXIII - on Indigenous Peoples [113]
  
  
• Article 27 of
  the International Covenant on Civil and Political Rights (ICCPR)
  states that minorities and persons belonging to minorities shall not
  be denied the right to "enjoy their own culture, to profess and
  practise their own religion, or to use their own language." This
  right is also protected by Article 30 of CROC in relation to children.
  
• Article 28(3)
  of the Convention concerning Indigenous and Tribal Peoples in Independent
  Countries (ILO 69) requires states to take measures to preserve
  and promote the development and practice of the indigenous language
  of the peoples concerned

Following from these
requirements, a number of international instruments, recognise that the
right to education on a basis of equality requires that that education
encompass the special educational issues of minority and indigenous groups
regarding the maintenance of their cultures, religions and languages:

• Article 29(1)
  of CROC states that the education of the child shall be directed to
  (amongst other things) … (c) The development of respect for the
  child's parents, his or her own cultural identity, language and values…
  
• Article 2(b) of
  the Convention against Discrimination in Education excludes from its
  definition of discrimination in education, the establishment or maintenance
  for religious or linguistic reasons, of separate educational systems
  or institutions offering an education which is in keeping with the wishes
  of the pupil's parents or legal guardians, if participation in such
  systems or attendance at such institutions is optional and if the education
  provided conforms to such standards as may be laid down or approved
  by the competent authorities, in particular for education of the same
  level.
  
• Article 28(1)
  of the Convention concerning Indigenous and Tribal Peoples in Independent
  Countries (ILO 69) states "Children belonging to the peoples concerned
  shall, wherever practicable, be taught to read and write in their own
  indigenous language or in the language most commonly used by the group
  to which they belong. When this is not practicable, the competent authorities
  shall undertake consultations with these peoples with a view to the
  adoption of measures to achieve this objective."

The integration of
Aboriginal languages into the formal education system through bilingual
programs is consistent with international human rights standards. It makes
schooling more accessible to Aboriginal students and it recognises cultural
difference in a manner that is non-discriminatory in international law.
Bilingual education programs value Aboriginal educators and knowledge.
Aboriginal communities state that the success of the education of their
children should be measured both by standards of English literacy, and
also by respect for their rights to education, language, culture and land.
For many Indigenous people, the decision of the Northern Territory government
to phase out bilingual education programs in government schools in Aboriginal
communities amounted to a denial of their right to choose the mode of
education for their children and threatens the viability of remaining
languages.

International human
rights standards also require states to ensure that Indigenous people
themselves are able to effectively participate in decisions regarding
the provision of education and the kind of education provided:

• Article 27 of
  the Convention concerning Indigenous and Tribal Peoples in Independent
  Countries (ILO 69) states that "Education programmes and services
  for the peoples concerned shall be developed and implemented in co-operation
  with them to address their special needs, and shall incorporate their
  histories, their knowledge and technologies, their value systems and
  their further social, economic and cultural aspirations."
  
• The CERD Committee
  General Recommendation XXIII requires that states '[E]nsure 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' .[114]

Many Aboriginal communities
who currently have bilingual education programs have stated that the decision
of the Northern Territory government was made without appropriate consultation.
The lack of appropriate Indigenous participation in the Northern Territory
decision to abandon bilingual education breaches Australia's obligations
to respect the self-determination rights of its Indigenous peoples under
Article 1 of the ICESCR and the right of Indigenous people to effective
participation in decisions which affect them. It is also inconsistent
with the consistently expressed desires of Indigenous people in the Northern
Territory for greater community control over educational processes. [115]

Redressing Indigenous disadvantage

Across every measurement
of socio-economic status and well-being, and across all age groups, geographical
circumstances and genders, Australia's Indigenous people are severely
disadvantaged, and disproportionately so when compared to the rest of
Australian society. In addition, the Indigenous population has a young
age structure. The disadvantage faced by Indigenous young people today
has the potential to increase and further entrench the disparity between
Indigenous and non-Indigenous Australians over the coming decades unless
greater effort is made now to reduce the inequality that they face.

The systemic, grossly
disproportionate rate of disadvantage faced by Indigenous youth indicates
that they do not enjoy the full spectrum of human rights in a non-discriminatory
manner. The achievement of the non-discriminatory enjoyment of the full
spectrum of human rights for all people is the core obligation undertaken
by States parties to ICESCR, CERD and the ICCPR.

Under Article 2(2)
of CERD, the consequence of this disadvantage and discrimination is that
Australia is required to take action '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.'

Under ICESCR, this
discrimination raises concerns that Australian governments may not be
meeting their 'core minimum obligations' under the Convention towards
Indigenous people across the full range of services that are routinely
provided to non-Indigenous Australians. Australian governments [116]
must be able to demonstrate that they are providing Indigenous people
with 'minimum essential levels of each of the rights' and that they are
making every effort to use all resources at their disposition to satisfy,
as a matter of priority, those minimum obligations.

International Commentary

(i) Consideration
of Indigenous Disadvantage by the CERD Committee in March 2000.

The issue to which
the CERD Committee members returned time and again was the extent of Indigenous
disadvantage, and the adequacy of government measures to redress this.
In their comments the Committee members raise a number of complex issues
of significance to attempts to redress Indigenous disadvantage. They acknowledge
that:

• Indigenous disadvantage
  is the result of systemic discrimination;
  
  the appropriate benchmark by which to measure progress is one of equality
  between
• Indigenous and
  non-Indigenous Australians;
  
• the government
  is obligated to take sufficient steps (or special measures) to achieve
  such equality;
  
• there must be
  adequate monitoring and evaluation of progress, including measuring
  effectiveness through benchmarking and standard setting; and
  
• real progress
  requires the effective participation of Indigenous people in decision
  making (including through the representative voice of ATSIC).

The Government responded
in a number of ways. They emphasised the importance of recognising progress
to date:

if we cannot
acknowledge that there has been some progress then the support for
the efforts, which are considerable, to address these issues in the
community as a whole will not be there. And so we have seen some beneficial
improvements, they're outlined in the report before you, but we don't
see those improvements as enough… [117]

There is also clear
evidence that progress is being made:

• rising levels
  of educational attainment;
  
• improvements in
  health and housing (eg a 90% reduction in aboriginal infant mortality
  since the 1970s);
  
• and the fact that
  15% of the continent has been returned to aboriginal ownership and control.
  [118]

The Government emphasised
its commitment to redressing disadvantage through 'practical' measures:

Now it is impossible
to undo the wrongs of the past, but the Australian Government has
committed itself firmly to address what it sees as today's unacceptable
level of disadvantage suffered by Australia's indigenous peoples.
And the fact is that indigenous disadvantage in Australia has been
long-standing and it will not be corrected overnight…

They emphasised the
increased funding in Indigenous-specific programs:

Now despite some
claims to the contrary, the fact is that government funding, total
funding on indigenous support programs has increased. In this financial
year the Government's indigenous-specific funding across all portfolios
including health, housing, education and employment will be 2.2 billion
Australian dollars… that's a significant increase on the figure
of 1.8 billion that is referred to in the report. So you can see that
increased commitment by that simple demonstration. [119]

They also emphasised
the government's policies of empowerment and responsibility / mutual obligation:

Now I must stress
that disadvantage will not be solved or remedied by money alone. We
recognise that communities and individuals need to take some responsibility
for their personal well-being as well. And they need to have the chance
to claim success or to learn from failure, and we have therefore been
involving and empowering Aboriginal and Torres Strait Islander people
to overcome the legacy of our past, to eliminate need for welfare
support, and we're improving indigenous Australians' access to health,
housing, education, employment, economic wealth of our country in
addition. In fact I would say that one of the tangible demonstrations
of that empowerment is the very presence of such a large number of
Australian indigenous people before your Committee in the audience
today and making efforts to be heard in other ways, as I know they
have... The government support for services remain but our aim of
course is to create opportunities for indigenous Australians to be
able to create their own future. [120]

And they acknowledged
the historically derived nature of the disadvantage.

Notable in these
responses is the absence of any recognition of the importance of a rights-based
approach to redressing disadvantage. There is no confirmation of the centrality
of Indigenous participation and self-determination to achieving lasting
improvements in the enjoyment of economic, social and cultural rights.
[121]

Similarly, there
is no reference to a commitment to adopting special measures to redress
Indigenous disadvantage as expeditiously as possible, through the adoption
of targeted plans. Indeed, while the government affirms the importance
of performance measures and benchmarks, the only examples they are able
to give of benchmarks that have been adopted are socio-economic indicators
and statistics collated as part of the Commonwealth's access and equity
strategy. [122]

A further aspect
of the government's responses that is of concern is the reference to $2.2
billion expenditure on 'special programs'. As a study on public expenditure
on services for Indigenous people noted last year:

A focus on special
programs for Indigenous people alone will provide a misleading picture
of the distribution of public expenditure between Indigenous and non-Indigenous
people. While Indigenous people benefit substantially more than other
Australians from specific programs, they benefit substantially less
from many, much bigger, general programs. [123]

Such a focus does
not acknowledge, in relation to health for example, that Indigenous people
access the large general schemes such as Medicare and the Prescribed Pharmaceutical
Benefits scheme at substantially lower rates than non-Indigenous people.
Nor does it identify that a large number of unemployed Indigenous people
are 'hidden' within the Community Development Employment Projects Scheme
rather than accessing Jobstart allowance. Put differently, much of the
expenditure through programs that are identified as 'special programs'
is in fact expenditure that would otherwise be spent through mainstream
programs. It is not additional, as a characterisation as a 'special program'
implies.

The Committee reached
the following conclusions on the issue of Indigenous disadvantage:

18. The Committee
acknowledges the efforts being made to increase spending on health,
housing, employment and education programmes for indigenous Australians.
Serious concern remains at the extent of the continuing discrimination
faced by indigenous Australians in the enjoyment of their economic,
social and cultural rights. The Committee remains seriously concerned
about the extent of the dramatic inequality still experienced by an
indigenous population that represents only 2.1 per cent of the total
population of a highly developed industrialized State. The Committee
recommends that the State party ensure, within the shortest time possible,
that sufficient resources are allocated to eradicate these disparities.

(ii) Consideration
of Indigenous Disadvantage by the Human Rights Committee in July 2000.

The Human Rights
Committee's concern for the comparative disadvantage of Indigenous people
in Australia was based on the failure of Australia to meet its obligations
under Article 27 of ICCPR which requires the culture of minority people
be protected.

The Committee
recommends that the State party take further steps in order to secure
the rights of its indigenous population under article 27 of the Covenant.
The high level of exclusion and poverty facing indigenous persons
is indicative of the urgent nature of these concerns. In particular,
the Committee recommends that the necessary steps be taken to restore
and protect the titles and interests of indigenous persons in their
native lands, including by considering amending anew the Native Title
Act, taking into account these concerns.

(iii) Consideration
of Indigenous Disadvantage by the Committee on Economic, Social and Cultural
Rights in September 2000.

The disadvantage
of Indigenous people in Australia raises concerns about whether the governments
of Australia are taking sufficient steps, as required under ICESCR, towards
the progressive realization of the enjoyment of economic, social and cultural
rights by Indigenous people. As noted above, the Committee on Economic,
Social and Cultural Rights has interpreted the principle of 'progressive
realization over time' in a way that 'should not be misinterpreted as
depriving the obligation of all meaningful content.' [124]

One of the main ways
that the Committee on Economic, Social and Cultural Rights considers whether
the principle of progressive realization has been 'deprived of meaningful
content' in relation to Indigenous Australians will be through examining
Australia's periodic reports to the Committee. [125]
In considering Australia's periodic report in September 2000 the Committee
stated at paragraphs 9, 10 and 15 respectively:

9. The Committee
notes that the State party has allocated 2.3 billion Australian dollars
for giving priority to indigenous programmes.

10. The Committee
welcomes the partnership between the State party and indigenous communities
in initiatives aimed at providing greater access for indigenous peoples
to culturally appropriate health services and allocating significant
resources for the improvement of indigenous health in general.

15. The Committee
expresses its deep concern that, despite the efforts and achievements
of the State party, the indigenous populations of Australia continue
to be at a comparative disadvantage in the enjoyment of economic,
social and cultural rights, particularly in the field of employment,
housing, health and education.

(iv) Consideration
of Indigenous Disadvantage by the Committee Against Torture in November
2000.

The Committee Against
Torture has also considered the socio-economic disadvantage suffered by
Indigenous people in Australia under its convention and made the following
recommendations:

(g) The State party
continue its efforts to address the socio-economic disadvantage that
inter alia leads indigenous Australians to come disproportionately into
contact with the criminal justice system.

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


107 Human Rights and Equal Opportunity Commission, "Emerging
Themes" National Inquiry into Rural and Remote Education, March 2000

108 ibid.

109 DETYA submission to the National Inquiry into Rural
and Remote Education, page 89

110 David Curtis, ATSIC Commissioner, Melbourne hearing,
National Inquiry into Rural and Remote Education

111 ATSIC submission to National Inquiry into Rural
and Remote Education, page 26

112 DETYA submission to the National Inquiry into Rural
and Remote Education, page 48

113 CERD Committee, General Recommendation XXIII, op.
cit., para 3.

114 Ibid.

115 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.

116 While the power to enter into international treaties
and conventions on behalf of Australia resides with the federal government,
the states and territories of Australia are bound to act in compliance
with Australia's international obligations. Article 27 of the Vienna Convention
on the Law of Treaties, to which Australia is a party, provides that 'a
party may not invoke provisions of its internal law as justification for
its failure to perform a treaty.'

117 Minister Ruddock in FAIRA, CERD Transcript - 21-22
March 2000, 1393rd meeting, Part I, p3.

118 Commonwealth of Australia, Written answers to the
Committee on the Elimination of Racial Discrimination. Issue: Wealthy
Australia has not solved the problems of 2% of its population.

119 ibid.

120 ibid, p4. Note: I critique this concept of responsibilities
in chapter 2 of this report, and the introduction of the Social Justice
Report 1999.

121 In this regard, note the Human Rights Committee,
Concluding Observations, which states in paragraph 9 that:

with respect to article 1 of the (ICCPR), the Committee takes note of
the explanation given by the delegation that rather than the term 'self-determination'
the Government… prefers terms such as 'self-management' and 'self-empowerment'
to express domestically the principles 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 natural
resources.

122 Commonwealth of Australia, Written answers to the
Committee on the Elimination of Racial Discrimination. Issue: Benchmarking
/ Measuring reconciliation.

123 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.

124 Committee on Economic, Social and Cultural Rights,
General comment 3: The nature of States parties obligations (Article 2,
para 1), op.cit, para 9.

125 Australia's third periodic report was lodged with
the Committee on 15 June 1998: Committee on Economic, Social and Cultural
Rights, Periodic Report: Australia, UN Doc: E/1994/104/Add.22 (State Party
Report), 23 July 1998.

Last updated 7 October 2003.